Negative Citations at the CJEU and the Precedential Value of EU Case Law

• In Event: Judicial Decision Making in a Comparative Perspective

Abstract

Courts often cite precedent to justify their rulings. When courts in a common law system change a legal doctrine, they negatively cite earlier precedents — they explain why they were wrong and why the doctrine needs to change. Negative citations decrease a ruling's precedential value. In the United States, research services like LexisNexis and Westlaw track negative citations so lawyers can tell which rulings have precedential value. In the European Union (EU), a hybrid system, the Court of Justice of the European Union (CJEU) extensively cites its own case law, much like a common law court, but systematic data on negative citations does not exist. How often does the CJEU negatively cite its own judgments, and do negative citations lessen a judgment’s precedential value? We use a new corpus of all CJEU judgments (1952-2023) to answer these questions. First, we fine-tune a BERT-based named-entity recognition (NER) model to identify all case law citations in CJEU judgments. Second, we fine-tune another BERT model to classify case law citations as positive, negative, or neutral based on a sample of citations hand-coded by legal experts. We use these models to assess how frequently the CJEU uses negative citations to justify its judgments. Then, we estimate the effect of a negative citation on the likelihood that a judgment is cited again in the future.

Authors

• Joshua Camden Fjelstul, University of Oslo

• Michal Ovadek, University College London

• Daniel Naurin, Oslo University

• Johan Lindholm, University of Umea