18.1 Introduction

Systematic Content Analysis (SCA) of legal text offers a methodological and replicable tool to analyse a large body of legal text. It typically consists of three steps: (1) selecting cases based on a clearly defined selection criteria; (2) coding cases according to a pre-determined coding protocol; and (3) analysing the coded cases, in particular by using statistics. While most legal (doctrinal)Footnote ¹ and social science researchFootnote ² involves a careful reading of selected written materials, SCA stands out as a research methodology that provides an objective, systematic, and generalisable manner to analyse large bodies of legal text.Footnote ³ The objectivity requirement necessitates that each research step adheres to explicitly formulated processes. These rules aim to minimise, if not entirely eliminate, subjective judgments and biases of the researcher. Similarly, the systematic requirement dictates that selection criteria and coding of the text follow consistently applied rules. The generality requirement indicates that findings should hold theoretical significance rather than merely offering descriptive information about the content. The research design must correspond to a theory and be interpreted in that context. Embodying fundamental principles of social science inquiry, these three requirements aim to apply scientific methods to analyse a body of judgments, administrative decision-making, legislation, and other forms of legal text.Footnote ⁴

As explored in detail elsewhere,Footnote ⁵ content analysis emerged as a modern research technique amidst the financial crisis of the 1930s in the US. Initially utilised by sociologists, it aimed to examine how media reflected and influenced public opinion,Footnote ⁶ as well as to delineate trends in communication content.Footnote ⁷ Its development accelerated during the Second World War, to secure gathering political and military intelligence by inspecting radio and press communications to predict Nazi propaganda strategies.Footnote ⁸ Those techniques spread to other areas of social science and humanities after the war, and began to be conceptualised and to converge across disciplines.

In 1952, Berelson’s Content Analysis in Communication Research marked a milestone as the first comprehensive textbook on content analysis.Footnote ⁹ Early proponents positioned content analysis primarily as a quantitative method, emphasising the exploration of frequencies derived through counting.Footnote ¹⁰ Moreover, these studies predominantly focused on manifest content – that which is readily observable on the surface.Footnote ¹¹ Over time, content analysis evolved beyond its quantitative roots. It was also employed to guide more qualitative approaches, and to explore the latent content of the underlying meaning of the text.Footnote ¹²

Since the 1980s, SCA has experienced rapid growth both in usage and range of disciplines, largely driven by technological advancements. As ‘people cannot count, at least not very high’,Footnote ¹³ the rise of computer-aided statistical and text analysis software, the digitalisation and accessibility of online resources, and the emergence of automated content analysis have all contributed to the method’s expansion.Footnote ¹⁴ Technological development advanced the size and scope of digitalised data (potential databases) and enabled faster and more robust analysis of vast amounts of information.Footnote ¹⁵

Despite its widespread adoption in the social sciences, content analysis was not readily applied to the study of law for many years. This reluctance may have stemmed from various factors. Some blame the prevailing belief among judges, policy-makers, and legal scholars that law is an objective and apolitical concept, a timeless and sacrosanct ideal unaffected by those responsible for its administration.Footnote ¹⁶ According to this notion, the study of the law should focus on the black-letter law and leading cases and legal precedence, emphasising doctrinal analysis rather than the application of law in practice. Others proposed more practical obstacles hindering the systematic study of law, such as law students’ legal educationFootnote ¹⁷ or that the access to judicial and other decision-making data, which is crucial for content analysis, was often (and still sometimes is) tightly controlled by courts and other institutions and is made available only to select entities and researchers.Footnote ¹⁸ This limited access poses significant challenges to conducting comprehensive analyses of legal texts.

Empirical legal research in general, and the embrace of content analysis as a useful methodology to study law in particular, were deeply influenced by the American Legal Realism movement. Notable figures such as Judge Holmes and his successors advocated for law to embrace scientific methods to uncover the underlying political, economic, and societal conflicts that shape legal rules. They argued that hypotheses and assumptions that lay on the basis of law should be tested against empirical evidence, and case law should be subject to scientific scrutiny and analysis.Footnote ¹⁹ While many of the Legal Realists advocated for the application of scientific methods in jurisprudence, empirical legal analysis did not become a focal point of their engagement. Unlike other interdisciplinary approaches stemming from Legal Realism, moreover, SCA did not evolve into an independent school of thought championing specific intellectual traditions or normative policy-relevant concerns.Footnote ²⁰

SCA of legal text was first described as a unique legal methodology as late as 2008 in a seminal article by Hall and Wright.Footnote ²¹ Their contribution not only identified and conceptualised the method but also surveyed its application in analysing legal decisions by courts or administrative adjudicative bodies, outlining best practices. As of the cut-off-date of June 2006, Hall and Wright had reported 134 projects utilising SCA, indicating a notable increase in its usage over time. Prior to 1990, less than one project per year employed SCA, but this figure rose to an average of 5.7 projects per year in the 1990s, and eight projects in the early 2000s.Footnote ²² Although not explicitly stated in their article, most of these contributions focused on US law and were published in American journals, highlighting the prominence of SCA within the context of US legal scholarship.Footnote ²³ In the time that has passed since Hall and Wright conducted their study, the SCA of legal analysis has undergone significant advancements, largely due to the emergence of judicial analytics tools. These tools leverage advanced technological techniques, including machine learning, network analysis, and natural language processing, to code and analyse patterns in legal decision-making processes.Footnote ²⁴

By contrast, the use of SCA for the study of EU law is still underdeveloped.Footnote ²⁵ This chapter points to the limited popularity of this methodology in Europe, as well as to its vast potential. It focuses on the field of EU internal market law and governance. The remainder of this chapter is organised in three sections. Section 18.2 surveys the use of SCA in legal scholarship on the internal market (1957–2023). This section builds on and corresponds to the 2008 survey undertaken by Hall and Wright on the application of SCA in legal scholarship. It uses some of the same variables for comparative purposes, while incorporating additional variables relating specifically to the EU internal market. This section does not attempt to provide a comprehensive account of the use of SCA in this area. That would be an almost impossible exercise, as much of the scholarship employing some form of the method does not identify it by name.Footnote ²⁶ The survey, therefore, seeks to shed light on the growing adoption of SCA, identify the areas of research, the type of research questions and data coded, and the academic actors and publishers involved.

Next, Section 18.3 submits that despite the scarcity of scholarship in Europe, SCA is a natural choice for studying EU internal market law and governance. More specifically, it highlights three distinctive features of EU law: (1) its inherent ambiguity, uncertainty, and vagueness, driven by the generality of the Treaties provisions and secondary laws, which often provide frameworks rather than precise norms and the multicultural nature of European legislators; (2) the intricate multi-level governance system, where rule-making and application are shared across regional, national, and supranational levels; and (3) limited publications and weak open judicial data practices concerning significant body of EU legal text and its application, both at the EU and Member States level.

Finally, the chapter concludes by suggesting that the European legal community has a significant opportunity to advance the study of EU internal market law by using SCA to complement doctrinal studies of law. Openly acknowledging the use of SCA and adhering to its established best practices during the research design, writing, and review could foster an SCA culture tailored to the European context.

18.2 Survey of SCA Internal Market Scholarship

18.2.2 Findings

Figure 18.1 summarises the development of the use of SCA scholarship for the study of EU internal market law and governance, recording the number of SCA publications per year included in the database. It demonstrates the delay in adopting SCA in this area, particularly in comparison with the US experience.Footnote ³⁵ The SCA scholarship on the internal market has only emerged during the 2010s and gained some momentum in the past decade.

Figure 18.1

SCA scholarship per year.

The limited adoption of SCA in Europe is particularly notable when keeping in mind that Hall and Wright’s survey was limited to the study of legal decisions by courts or administrative adjudicative bodies. The studies included in this database and reported in Figure 18.1, by comparison, refer to applying the SCA technique to a broader variety of legal sources.Footnote ³⁶ As demonstrated in Figure 18.2, in addition to judgments of EU (11), national courts (6), decisions of the EU Commission (7), other EU (2), or national (6) and administrative adjudicative bodies, the SCA studies included in this database explore the body of EU legislation (8), parliamentary debates and resolutions (5), and policy documents and consultations (9). Keeping this in mind, therefore, Figure 18.2 points to the limited study of judicial behaviour and politics in the EU using SCA, especially in comparison to the US.Footnote ³⁷ As elaborated in Section 18.3 below, this might be tied to a host of technical barriers, as well as a more principled opposition to this line of research in various European legal systems and traditions.

Figure 18.2

Type of coded legal text in the database.

Figure 18.2 Long description

The values are 3 for A G opinions, 7 for the commission’s decisions, 11 for E U courts judgments, 8 for E U law, 5 for E U parliamentary debates and resolutions including committees, 9 for E U policy documents and consultations, 2 for E U’s independent authorities decisions and opinions, 6 for national authorities’ decisions and opinions, 6 for national courts judgements, 1 for national laws, and 3 for other. Note, all values are approximated.

The slower adoption of SCA in the field of EU internal market law and governance is also reflected by the number of cases coded in each study, reported in Figure 18.3.Footnote ³⁸ According to Hall and Wright’s database, between 2000 to June 2006, the median number of cases coded per project amounted to 399 cases (total of 52 projects), with one project coding as many as 22,000 judgments. The median number of coded cases concerning EU internal market law and governance, by comparison, is merely 61. As illustrated by Figure 18.3, 42 per cent of the European studies involved the coding of 100 or fewer cases (26 per cent of less than fifty cases), 10 per cent of between 100–200 cases, and only 18 per cent 500 cases or higher.

Figure 18.3

Number of coded cases per study.

The limited number of coded cases might be partially explained by the very limited use of automated coding for SCA projects in Europe.Footnote ³⁹ Out of the 38 papers in the database, only two involved a mix of automated and manual coding.Footnote ⁴⁰ Hence, and despite the potential technological advancements since the conclusion of Hall and Wright’s study in 2006, not only the number – but also the scale – of SCA studies concerning EU internal market law and governance has remained modest. Moreover, while Hall and Wright reported a consistently increasing median number of cases coded from the 1990s, there is no trend of an increase in the number of cases recorded in the European studies since the early 2010s.

One may question the added value which SCA can bring to traditional doctrinal legal research when the former is based on a relatively modest number of cases. Like SCA, (high-quality) doctrinal research also involves carefully reading and analysing a body of jurisprudence or other legal texts and making inferences about emerging trends and meanings. Hence, it could be argued that smaller-scale SCA studies do not offer great benefits beyond perhaps a more organised way to read cases. The potential advantages of SCA in such scenarios, nevertheless, may be context-specific. They are shaped, in particular, based on the research question, sampling criteria, and variables coded. For example, an SCA study of a small sample of cases from the total population, which is not grounded in probability or non-probability sampling criteria, is likely to have both limited validity and added value compared to doctrinal research. By contrast, a comprehensive account of all judgments rendered during a particular timeframe across a variety of variables might help expose trends and patterns that are not visible when relying on traditional legal methodologies, even if the number of coded cases is relatively modest.

Next, the survey of SCA-based EU internal market law and governance scholarship reveals that commercial aspects of EU law have received comparably greater attention. As summarised in Figure 18.4, SCA was most often used to explore matters related to EU competition law, Intellectual Property Rights (IPRs), taxation and fiscal policy, and sector regulation. Social aspects of EU law and the general operation of the EU justice system have remained largely untouched by this methodology.Footnote ⁴¹

Figure 18.4

Areas of EU law.

Figure 18.4 Long description

The values are 1 for Covid recovery, E U courts operation, health, E U membership accession, looping, sustainability, refugee crisis, technology and innovation, and European social charter. 2 for criminal law, theory of empirical analysis, and E U aims and values. 4 for sector regulation. 5 for taxation and fiscal policy. 7 for I P Rs and competition law.

These findings can partially be explained by some authors making multiple SCA contributions to their fields (e.g., in competition lawFootnote ⁴² and IPRsFootnote ⁴³), rather than differences related to the background or inherent interdisciplinarity of scholars involved in certain areas of EU law. The uneven acceptance of SCA scholarship among certain areas of EU law also does not appear to be linked to publication venues. The studies included in the database were evenly spread among journals (for articles) and publishers (for books and book chapters), where all of the recorded journals published only a single SCA paper.

The survey points to an interesting observation about the type of scholars involved in the SCA studies of EU internal market law and governance. As Figure 18.5 suggests, half of the recorded SCA studies were conducted by non-legal scholars.Footnote ⁴⁴ In other words, much of the insights about EU internal market law and governance using this technique are made by political scientists, economists, and business administration, as well as other social science researchers. This finding is in line with previously reported trends about empirical research in Europe in general, whereby a growing share of the cutting-edge research, which used to be the preserve of legal scholars, is now conducted by researchers outside the legal discipline.Footnote ⁴⁵

Figure 18.5:

Authors’ affiliation.*

*Note: The author’s affiliation was coded according to the school, department, or factually listed in the first comment of each publication. Hence, law, economics, and political science, for example, are distinguished from social science.

This observation may indicate another missed opportunity within the realm of the SCA of EU internal market law and governance. Given their doctrinal training, background, and knowledge, legal scholars possess unique advantages in identifying legally significant research questions and empirically confirming or challenging some of the conventional wisdom and assumptions in their areas of expertise. Moreover, the integration of doctrinal legal insights can significantly enhance the quality and validity of SCA-based research. Achieving conclusions of substantial legal and practical significance often requires a nuanced legal understanding of the relevant legal rules and enforcement settings to effectively select cases, define variables, and analyse data. Thus, ‘traditional’ doctrinal legal analysis and SCA should not be seen as opposing methodologies but rather as complementary approaches. While social scientists and teams of interdisciplinary researchers undoubtedly offer important insights to the study of EU internal market law and governance, there remains considerable untapped potential for legal scholars to apply SCA effectively in their research.

Finally, a closer examination of the body of SCA research focusing on internal market law and governance reveals a relatively limited range of research questions being explored through this methodology. As commentators have previously noted, SCA of legal text can address various research questions, which can be roughly categorised into three groups: (1) descriptive research questions, which involve ‘gathering, organising, tabulating, and depicting data’ (research projects in this category typically aim to uncover trends in the case law, the success rates of certain arguments, and the language used in the decision-making process); (2) predictive research questions, which seek to forecast future courses of action based on past experiences and trends identified through SCA; and (3) perspective research questions, which aim to recommend evidence-based law and policy reforms.Footnote ⁴⁶ Despite this potentially wide scope of application, EU scholarship has predominantly focused on the first category of descriptive research questions. Specifically, while many American SCA studies have explored judges’ personal characteristics (e.g., gender, age, education, and politics) as predictors or explanatory factors in decision-making, such scholarship has not gained traction in the EU context.Footnote ⁴⁷

18.3 The Potential for SCA-based Research of EU Internal Market Law and Governance

SCA of EU internal market law and governance is still in its early days. As demonstrated in the previous section, there are few studies, typically coding a limited number of cases, concerning limited areas of EU law, and focusing on a narrow type of research questions. Nevertheless, this section suggests that the exploration of EU internal market law and governance may benefit from greater use of this methodology, particularly given (1) the nature of EU law, (2) its multi-governance character, and (3) by creating new databases and tools to explore the EU internal market in face of the limited publications and weak open judicial data practices concerning a significant body of EU legal text. This section discusses each of those features of EU law in turn, referring to examples of studies using SCA to explore those gaps based on the database presented in the previous section.

First, SCA has the potential to serve as a powerful tool for deciphering the ambiguous, uncertain, and vague provisions of EU law and governance in the internal market and beyond. Unlike many national legislations, EU laws often only offer general legal frameworks rather than defined norms.Footnote ⁴⁸ The EU Treaties, secondary, and other forms of regulation typically provide no or very limited explanations of the underlying values of the EU legal order and the aims of the specific legal provisions.Footnote ⁴⁹ The ambiguity surrounding EU law is ascribed to a combination of factors, including the need to reach a political compromise between representatives of the Member States, negotiations and amendments over legal text conducted mostly by non-native speakers and later translated into the various Member States’ languages, and the interpretation and application of those rules by judges and lawyers coming from vastly different legal traditions.Footnote ⁵⁰ The scope, meaning, and boundaries of EU law and governance, therefore, are affected by the multicultural nature of European legislators and multilingualism.Footnote ⁵¹ Further uncertainties pertain to the interaction between EU and national law and how far the EU competencies reach.Footnote ⁵² The division of competencies between the Member States and the EU is politically charged and contested, and EU law offers only incomplete, open-textured, and imprecise rules.Footnote ⁵³ For example, while the EU Treaties introduce the principles of conferral, subsidiarity, proportionality, and sincere cooperation to guide this division, they do not contain a clear resolution tool in case the application of those principles results in conflicts.Footnote ⁵⁴

Against this background, SCA has already assisted in identifying how EU internal market law and governance is being interpreted and applied in practice, whether it follows a coherent and consistent interpretation,Footnote ⁵⁵ how the interpretation of national actors differs across subject areas or borders,Footnote ⁵⁶ what laws are being enforced and which are not, and how the governance mechanism operates.Footnote ⁵⁷ The method was used to investigate how the division of competencies between the EU and the Member States operates across different fields of law,Footnote ⁵⁸ and how the bodies involved in applying EU internal market and governance make use of their discretion. For example, SCA research exposed if and how the decision-making process was biased against certain national citizens and companies.Footnote ⁵⁹ From a policy perspective, SCA may also be used to limit the scope of discretion in the administration of EU law. As Bugarič notes, ‘[t]he most effective means of limiting the scope of discretion in public administration lies not in more detailed legislation but in … bringing public administration operations into the public domain’.Footnote ⁶⁰

SCA has the potential to complement doctrinal studies in the quest to clarify the meaning of various provisions of EU law and governance precisely because it shifts the focus away from leading cases, which are often the subject of doctrinal research, to the day-to-day interpretation and application of EU norms by various EU and national actors. This shift allows for a more comprehensive understanding of how EU laws are practically implemented and interpreted across different contexts, offering valuable insights that doctrinal analysis alone might miss.

Second, SCA is particularly well-suited to explore matters related to multi-level governance within the EU. European integration is an ongoing policy-creation process. Its authority and policy-making are influenced and shared across regional, national, and super-national levels.Footnote ⁶¹ Various national political institutions and actors play roles in both rule-making and rule-implementation, and these institutions and actors often exhibit considerable procedural and institutional diversity.Footnote ⁶² European and transnational integration necessitates cooperation among distinct governmental levels (local, subnational/regional, national, European, and transnational) and between them and non-public actors.Footnote ⁶³ As a result, EU law gains effect not only by the implementation of the 27 national legal systems (which can diverge in particular when EU law sets only minimum harmonisationFootnote ⁶⁴), but also by its application by national courts, national administrative agencies, national traders, consumer, and environmental organisations, service providers, employers and employees, interest groups,Footnote ⁶⁵ and European citizens. Despite the critical importance of the enforcement of EU law, however, there is a limited understanding of the extent to which EU law is applied and by whom.Footnote ⁶⁶

SCA offers a tool to explore how different regional, national, super-national, and EU actors comprehend and implement the provisions of EU law and governance.Footnote ⁶⁷ It was used to investigate how national systems implemented EU law and to uncover divergences and inconsistencies in interpretation that may not be readily apparent using doctrinal or case-study-specific methodologies,Footnote ⁶⁸ and how the operation of the EU- and national-level legislative and enforcement systems co-exist.Footnote ⁶⁹ Moreover, SCA was used to trace the integration agenda of EU legislation,Footnote ⁷⁰ as well as resistance to EU integration by national actors.Footnote ⁷¹

SCA studies aiming to explore the features of EU multi-level governance and decentralised enforcement face unique challenges regarding research design and the research teams’ composition. Language barriers, diverse European legal traditions, and the varying contexts in which EU law and governance are being applied at the national level affect the selection of cases and bodies subject to exploration, as well as the definition of variables. Consistent with the EU principle of procedural and institutional autonomy, this national diversity often necessitates an EU-wide team of project leaders and large teams of coders, each an expert in their respective legal systems. Consequently, coordinating such extensive and specialised teams is often essential for effectively addressing the complexities inherent in SCA studies within the EU context.Footnote ⁷²

Finally, SCA projects can play a critical role in addressing the scarcity of empirical data on the operation and application of EU law and governance by generating new databases and tools. As elaborated below, the systematic gathering and analysis of EU legal texts face various challenges, resulting from limited publications and weak open judicial data practices. Overcoming these obstacles through SCA can significantly enhance the empirical foundation of EU legal studies, providing deeper insights into how EU law is implemented and enforced across different jurisdictions.

A significant body of EU legal text is not published or publicly available. This may come as a surprise, considering the EU’s apparent commitment to a relatively high degree of openness and transparency. Article 1 TEU, for example, emphasises that in the process of creating an ever closer union among the people of Europe, ‘decisions are taken as openly as possible to the citizen’, and Article 15(1) TFEU adds that ‘to promote good governance and ensure the participation of civil society, the Union’s institutions, bodies, offices and agencies shall conduct their work as openly as possible’. Regulation 1049/2001 further expands on those general principles, establishing the right to access EU documents, subject to some restrictions.Footnote ⁷³ Similarly, the judgments of the EU courts are mostly published and reasoned,Footnote ⁷⁴ and the EU courts acknowledged that publishing the Commission’s decision contributes to ensuring the observance of EU law, serves the public interest of knowing as fully as possible the reason behind the Commission’s action, increases compliance, and invites those who have suffered damages to launch private claims or seek judicial review.Footnote ⁷⁵

Nevertheless, access to a significant body of EU legal text and the decision-making process remains limited.Footnote ⁷⁶ For instance, the EU Courts held that the obligation of Article 15 TFEU applies only to the exercise of the ‘administrative tasks’ of their operation, and not to their judicial powers.Footnote ⁷⁷ Similarly, the right to access the court file and publicity of trial is garnered by the EU Courts to the parties to the judicial proceedings. The general public enjoys only a lower and undefined standard of openness.Footnote ⁷⁸

Moreover, the EU’s obligations regarding openness and transparency do not uniformly extend to the national actors responsible for applying EU law.Footnote ⁷⁹ Rather, based on the EU principle of procedural and institutional autonomy, each Member State adopts its own national rules and practices on publications, even with respect to national legal text and decisions applying or implementing EU law. Significant divergences persist among the Member States in this regard. While some national rules require the publication of all or some judgments (often those of higher-instance bodies), others have no publication obligations or leave the decision to the relevant court or presiding judge.Footnote ⁸⁰ In some cases, formal national publication rules are not respected in practice, and some national courts place logistical hurdles that significantly limit access to judgments, even for research purposes.Footnote ⁸¹ Furthermore, even when national judgments are published, in some Member States they are heavily redacted or anonymised, making it difficult to follow the trail of process and understanding its outcomes.Footnote ⁸²

Another distinctive challenge in systematically studying EU legal texts arises from the manner in which judicial and administrative decisions are made. Unlike the US, where court judgments often include dissenting opinions, decisions by EU Courts and administrative bodies are typically rendered collegially, without the expression of divergent views.Footnote ⁸³ The absence of dissenting opinions is often attributed to the EU’s policy objective of garnering broader support for its legal framework. It is argued that presenting minority views could potentially undermine acceptance of EU Court rulings within the legal-political systems and among the general public of the Member States, particularly on contentious or sensitive issues.Footnote ⁸⁴ This lack of diverging opinions also characterises many EU Member States, particularly those with civil law traditions.Footnote ⁸⁵ This decision-making format complicates the profiling of judges in relevant chambers and hinders the observation of trends in their rulings. Consequently, as previously noted, this type of research, which is widespread across the Atlantic, is constrained in Europe.

Even when published and accessible, a significant portion of the body of EU law is not structured or integrated into databases that facilitate automatic downloading and processing, essential for conducting large-scale SCA projects.Footnote ⁸⁶ Despite the growing momentum of Open Data initiatives over recent decades, the advancement in opening up judicial decision-making and creating accessible datasets has been notably slow in many jurisdictions across Europe.Footnote ⁸⁷

The scarcity of accessible and readily processable data concerning the implementation of EU internal market law and governance is exacerbated by the limited adoption of SCA within both academic circles and policy evaluations. In addition to the sparse SCA academic literature highlighted in the previous section, impact assessments and policy evaluations of EU law and governance often concentrate on substantive EU rules. The European Commission, in particular, allocates little resources for gaining an understanding of the diverse institutional settings of the actors applying EU law and the interplay between national authorities and courts.Footnote ⁸⁸ This situation perpetuates a vicious cycle: As European scholarship and policy-making predominantly rely on doctrinal legal research focused on black-letter legal rules rather than their practical application and enforcement, fewer information and datasets conducive to advancing SCA and empirical legal research are generated.

Some of the challenges associated with the limited access to legal text and their analysis, particularly those necessary for understanding judicial and administrative decision-making processes, are not unique to EU law.Footnote ⁸⁹ Yet, while studies in the US and Canada, for instance, have made strides in overcoming those hurdles, ‘[t]he huge black box called enforcement has never really been opened during the long history of EU law’.Footnote ⁹⁰ Generating a robust body of SCA studies holds the promise of unravelling the ‘black box’ of EU enforcement. These studies are indispensable not only for addressing fundamental legal research questions by using new empirical–systematic methodologies, but also for creating new databases and toolsFootnote ⁹¹ that bolster further SCA research and skills among legal researchers of the EU internal market law and governance.

18.4 Final Remarks

SCA has begun to gain footing in Europe over the past decade. While this methodology is regularly used for studying law in the US, especially for exploring various facets of judicial decision-making, the survey of EU scholarship presented in this contribution illustrates that SCA studies of EU internal market law and governance remain limited. They are not only scarce in number but also constrained in terms of the areas of EU law investigated, the types of research questions pursued, the number of cases coded in each study, the use of automated coding, and the involvement of legal scholars. This contribution aimed to underscore the untapped potential of SCA in examining EU internal market law and governance, addressing both the challenges and common hurdles encountered in such studies.

Following the initial experience with SCA, the European legal community stands at a crucial juncture to advance this methodology. The development of a robust body of SCA research on EU internal market law and governance could benefit from increased attention to methodological rigour and the development of common best practices tailored to the European legal traditions and the EU’s structural characteristics throughout the research process – from initial design to study write-up and review by editors and peers. This is particularly true not only for the studies that explicitly recognise the use of SCA (which were the focus of the survey presented in this contribution), but also to many other projects that implicitly employ similar analytical techniques. Similarly to what was highlighted by Hall and Wright in their critique of earlier American-based SCA studies, although many studies have been published in leading law journals and sparked much academic debate, ‘[i]n project after project, legal researchers reinvent this methodological wheel on their own’, and have to learn ‘how to do content analysis on the fly, feeling at first as if we each discovered something new until we learned that we had each done the same thing independently’.Footnote ⁹²

The European legal community stands to gain significantly from openly embracing SCA to engage in a more methodologically sound study of EU law. Recognising the use of SCA and adhering to the best practices developed by legal researchers and social scientists over the past 70 years has the potential of leading to more robust sample selection, variable definition, coding interpretation, and validity checks, as well as to identifying and discussing the limitations of studies. This, in turn, will not only improve methodological quality, but could cultivate a SCA culture within the European legal community. It could foster the development of skills, formation of peer groups, shared conventions tailored to the distinctive aspects of EU law and governance, and generate new databases supporting future empirical research and policy evaluations. By standardising and refining the application of SCA, legal scholars can effectively contribute to more insightful analyses and interpretations of EU legal frameworks.