¹ Article 31 of the Treaty establishing the European Coal and Steel Community (“La Cour assure le respect du droit dans l'interprétation et l'application du présent Traité et des règlements d'exécution.”), now Article 19 of the Treaty on European Union (TEU).Google Scholar

² See, e.g., Alter, Karen J., Who are the ‘Masters of the Treaty‘?: European Governments and the European Court of Justice, 52 Int'l Org. 121 (1998); Joseph H.H. Weiler, The Transformation of Europe, 100 Yale L.J. 2403 (1991); Paul Craig & Gráinne de Búrca, EU Law 63–66 (5th ed. 2011).Google Scholar

³ Barceló, John J., Precedent in European Community Law, in Interpreting Precedent 407, 417(D. Neil McCormick et al. eds., 1997). Barceló notes that the Court never explicitly refers to its previous judgments as “precedents”. Id. However, the Court has acknowledged that the General Court's judgments can “constitute a precedent for future cases”. Case C-197/09 RX-II, M v EMEA, EU:C:2009:804, para. 62; Case C-334/12 RX-II, Jaramillo et al. v EIB, EU:C:2013:134, para. 50.Google Scholar

⁴ See, e.g., Case C-409/06, Winner Wetten GmbH v Bürgermeisterin der Stadt Bergheim, EU:C:2010:503, paras. 36, 39, 53, 33 and 58.Google Scholar

⁵ See, e.g., Case C-176/12, Association de médiation sociale v Union locale des syndicats CGT et al., EU:C:2014:2, para. 50 (“a party injured as a result of domestic law not being in conformity with European Union law can none the less rely on the judgment in Joined Cases C-6/90 and C-9/90 Francovich and Others [1991] ECR I-5357”).Google Scholar

⁶ See the overview in Mitchel lasser, Judicial Deliberations 107–12 (2004).Google Scholar

⁷ The judicial system of the European Union consists of a two-part structure, with the CJEU at the top and the General Court below it. In this article, we only discuss the CJEU, as it is the most important court of the Union. EU legal development by way of case law primarily takes place in the CJEU. This court decides on average 600–700 cases per year. See Annual Report of the Court of Justice of the European Union, Luxembourg 2015, 93. Arnull has published a useful general introduction to the Court of Justice. See Arnull, Anthony, The European Union and its Court of Justice (2nd ed. 2006). The judicial structure previously also included a Civil Service Tribunal, ruling on disputes between the European Union and its staff, but this organ was dissolved in 2016 and its jurisdiction was transferred to the General Court. For further discussion see, e.g., Alberto Alemanno & Laurent Pech, Thinking Justice outside the Docket: A Critical Assessment of the Reform of the EU's Court System, 54 Common Mkt. L. Rev. 129 (2017).Google Scholar

⁸ In an earlier article, we explore under what circumstances CJEU case law is an important source of law. See Mattias Derlén & Johan Lindholm, Characteristics of Precedent: European Court of Justice Case Law in Three Dimensions, 16 German L.J. 1073 (2015).Google Scholar

⁹ See, e.g., Arnull, Anthony, Owning Up to Fallibility: Precedent and the Court of Justice, 30 Common Mkt. L. Rev. 247, 252–53 (1993); L. Neville Brown & Tom Kennedy, The Court of Justice of the European Communities 369–70 (5th ed. 2000); Anthony Arnull et al., Wyatt & Dashwood's European Union Law 409 (5th ed., 2006).Google Scholar

¹⁰ See, e.g., Arnull, supra note 9, at 252.Google Scholar

¹¹ Barceló, John J., Precedent in European Community Law, in Interpreting Precedents – A Comparative Study 407, 416 (Mac, Neil D.Cormick & Summers, Robert S. eds., 1997).Google Scholar

¹² Takis Tridimas, Precedent and the Court of Justice, in Philosophical Foundations of European Union law 307, 314 (Julie Dickson & Pavlos Eleftheriadis eds., 2012).Google Scholar

¹³ Marc Jacob, Precedents and Case-based Reasoning in the European Court of Justice – Unfinished Business 159 (2014).Google Scholar

¹⁴ Tridimas, supra note 12, at 316–20; Brown & Kennedy, supra note 9, at 370.Google Scholar

¹⁵ Jacob, supra note 13, at 160.Google Scholar

¹⁶ See, e.g., Tridimas, supra note 12, at 313–16; Brown & Kennedy, supra note 9, at 369–75; Ulrich Everling, Zur Begründung der Urteile des Gerichtshofs der Europäischen Gemeinschaften, 1994 Europarecht 127, 136–39 (1994).Google Scholar

¹⁷ Jacob, supra note 13, at 130–45.Google Scholar

¹⁸ See, e.g., Barceló, supra note 11, at 416; Stefano Civitarese, A European Convergence Towards a Stare Decisis Model?, Revista Digital De Derecho Administrativo, No. 14, Julio - Diciembre de 2015, 173, 182.Google Scholar

¹⁹ See, e.g., Tridimas, supra note 12, at 315; Arnull, supra note 9, at 253.Google Scholar

²⁰ See also Mattias Derlén, Multilingual Interpretation of CJEU Case Law: Rule and Reality, 39 Eur. L. Rev. 295, 296–99 (2014).Google Scholar

²¹ The concept of precedent is discussed infra Part B.Google Scholar

²² This choice for comparison is explained and defended immediately infra. Google Scholar

²³ This does not prevent scholars from making general claims. See, e.g., Hartley, Trevor C., The Foundations of European Community Law 72 (6th ed. 2007) (claiming that the frequency of citations in CJEU judgments has increased).Google Scholar

²⁴ See Atieh Mirshahvalad et al., Significant Communities in Large Sparse Networks, 7 PLoS ONE (2012); Mattias Derlén et al., Coherence Out of Chaos: Mapping European Union Law by Running Randomly Through the Maze of CJEU Case Law, 2013 Europarättslig tidskrift 517; Mattias Derlén & Johan Lindholm, Goodbye van Gend en Loos, Hello Bosman?: Using Network Analysis to Measure the Importance of Individual CJEU Judgments, 20 Eur. L.J. 667 (2014).Google Scholar

²⁵ All studies mentioned in Part A.I are examples of such qualitative studies, encompassing a limited number of judgments from the Court of Justice. Even Jacob, who conduct a quantitative study, only discuss 52 judgments. See Jacob, supra note 13, at 87.Google Scholar

²⁶ Posner, Richard A., An Economic Analysis of the Use of Citations in the Law, 2 Am. L. & Econ. Rev. 381, 402 and n. 30 (2000); Fallon, Richard H., Jr., Constitutional Precedent Viewed Through the Lens of Hartian Positivist Jurisprudence, 86 N.C. L. Rev. 1107, 1115 (2008).Google Scholar

²⁷ The use of network analysis is described in more detail infra Part C.II.Google Scholar

²⁸ Fowler, James H. et al., Network Analysis and the Law: Measuring the Legal Importance of Precedents at the U.S. Supreme Court, 15 Pol. Analysis 324 (2007); Fowler, James H. & Sangick Jeon, The Authority of Supreme Court Precedent, 30 Soc. Networks 16 (2008).Google Scholar

²⁹ The dataset used in this study, described further infra, was compiled by us as part of a larger research project and previously described and analyzed in sources cited supra note 24.Google Scholar

³⁰ See also Derlén & Lindholm, supra note 8.Google Scholar

³¹ As will be demonstrated by the discussion below, we here use precedent in a wide sense, encompassing all use of previous judgments, not limited to binding precedent.Google Scholar

³² C.K. Allen, Law in the Making 243 (7th ed. 1964).Google Scholar

³³ As famously summarized by David & Brierly: “The place given to judicial decisions as a source of law distinguishes the laws of the Romano-Germanic family from the Common law.” René David & John E.C. Brierley, Major Legal Systems in the World Today 133 (3rd ed. 1985).Google Scholar

³⁴ Mathias Siems, Comparative Law 46 (2014).Google Scholar

³⁵ Eric Tjong Tijn Tai & Karlijn Teuben, European Precedent Law, 16 Eur. Rev. Priv. L. 827, 832 (2008). An alternative theory explains the difference between civil law and common law as the distinction between jurisprudence constante and stare decisis, emphasizing that civil law courts are expected to have regard to previous decisions when there is a high level of consistency in case law (settled case law or jurisprudence constante). See Vincy Fon & Francesco Parisi, Judicial precedents in civil law systems: A dynamic analysis, 26 Int'l Rev. L. Econ. 519 (2006). However, we remain unconvinced by this argument. The existence of a line of cases, rather than a single decision, matters in common law as well as civil law. See, e.g., Landes, William M. & Posner, Richard A., Legal Precedent: A Theoretical and Empirical Analysis, 19 J. L. Econ. 249, 250 (1976).Google Scholar

³⁶ Stefan Vogenauer, Sources of Law and Legal Method, in The Oxford Handbook of Comparative Law 869, 894–95 (Mathias Reimann & Reinhard Zimmermann eds., 2006).Google Scholar

³⁷ Tai & Teuben, supra note 35, at 833.Google Scholar

³⁸ See, e.g., Bronaugh, Richard, Persuasive Precedent, in Precedent in law 217, 217 (Laurence Goldstein ed., 1987); Tai & Teuben, supra note 35, at 828.Google Scholar

³⁹ Vogenauer, supra note 36, at 894–95.Google Scholar

⁴⁰ Eskridge, William N., Overruling Statutory Precedents, 76 Geo. L.J. 1361, 1362 (1988); Earl Maltz, The Nature of Precedent, 66 N.C. L. Rev. 367, 388 (1988).Google Scholar

⁴¹ Hathaway, Oona A., Path Dependence in the Law: The Course and Pattern of Legal Change in a Common Law System, 86 Iowa L. Rev. 601, 656 (2001). See Rupert Cross & J. W. Harris, Precedent in English Law 20 (4th ed. 1991) (finding it unsurprising that the USSC has taken a less rigorous attitude towards precedent given the difficulties in changing the US constitution).Google Scholar

⁴² See, e.g., Burnet v. Coronado Oil & Gas Co. 285 U.S. 393, 407 (1932); Planned Parenthood v. Casey, 505 U.S. 833 (1992).Google Scholar

⁴³ Marina Gascón, Rationality and (Self) Precedent: Brief Considerations Concerning the Grounding and Implications of the Rule of Self Precedent, in On the Philosophy of Precedent 35, 36 (Thomas Bustamante & Carlos Barnal Pulido eds., 2012). The more traditional approach is to only employ two categories: vertical and horizontal stare decisis. See, e.g., Barrett, Amy Coney, Precedent and Jurisprudential Disagreement, 91 Tex. L. Rev. 1711, 1712–13 (2013); Frederick Schauer, Has Precedent Ever Really Mattered in the Supreme Court?, 24 Ga. St. U. L. Rev. 381, 385 (2007). Yet, following Gascón, we find it valuable to distinguish between different courts on the same hierarchical level and the same court, as only the latter is concerned by this study.Google Scholar

⁴⁴ Gascon, supra note 43, at 37.Google Scholar

⁴⁵ Id. at 43.Google Scholar

⁴⁶ Id. at 37–38.Google Scholar

⁴⁷ Jan Komárek, Reasoning with Previous Decisions: Beyond the Doctrine of Precedent, 61 Am. J. Comp. L. 149 (2013).Google Scholar

⁴⁸ Id. at 162–63.Google Scholar

⁴⁹ Id. at 165. See Maltz, Earl M., The Function of Supreme Court Opinions, 37 Houston L. Rev. 1395, 1420 (2000) (underscoring that “[b]y virtue of its position, the [SCOTUS] necessarily provides general legal rules that bind other actors in the system”).Google Scholar

⁵⁰ See, e.g., Alec Stone Sweet, Constitutional Courts, in The Oxford Handbook of Comparative Law 816, 817–18 (Michel Rosenfeld & András Sajó eds., 2013).Google Scholar

⁵¹ Komárek, supra note 47, at 165–66. But see David A. O. Edward, Richterrecht in community law, in Richterrecht und Rechtsfortbildung in der Europäischen Rechtsgemeinschaft 75, 80 (Reiner Schulze & Ulrike Seif eds., 2003) (concluding that a CJEU judgment “is not legislation, is not intended to be legislation and it should not be interpreted as if it were”).Google Scholar

⁵² Gerhard Dannemann, Comparative Law: Study of Similarities or Differences?, in The Oxford Handbook of Comparative Law 383 (Mathias Reimann & Reinhard Zimmermann eds., 2006).Google Scholar

⁵³ See generally Broberg, Morten & Fenger, Nils, Preliminary References to the European Court of Justice 400–03 (2010).Google Scholar

⁵⁴ Gerhardt, Michael J., The Power of Precedent 45 (2008).Google Scholar

⁵⁵ Lasser, supra note 6, at 236–38.Google Scholar

⁵⁶ Robert Schütze, European Constitutional Law 67–68 (2012).Google Scholar

⁵⁷ Takis Tridimas, The Court of Justice and Judicial Activism, 21 Eur. L. Rev. 199 (1996).Google Scholar

⁵⁸ Tridimas, supra note 12, at 324. We also believe that a comparison between the two courts is interesting as both are arguably driven by ideas. While this concept cannot be fully explored here, the essential idea is the following: The CJEU is not linked to any country but rather to an abstract idea of Europe, see e.g., Tamm, Ditlev, The History of the Court of Justice of the European Union Since its Origin, in The Court of Justice and the Construction of Europe: Analyses and Perspectives on Sixty Years of Case-law 9 (2013). This very characteristic trait of being linked to an idea rather than the history of an individual nation is absent in most other constitutional courts, but arguably not in the SCOTUS. The American nation is itself built on ideas, as evidenced in the Declaration of Independence and the Constitution, and these ideas still affect the US legal system, see e.g., Konrad Zweigert & Hein Kötz, Introduction to Comparative Law 239 (3rd ed. 1998).Google Scholar

⁵⁹ Johnson, Timothy R. et al., The Origin and Development of Stare Decisis at the U.S. Supreme Court, in New Directions in Judicial Politics 167, 167 (Mc, Kevin T.Guire ed., 2012).Google Scholar

⁶⁰ Spaeth, Harold J. & Segal, Jeffrey A., Majority Rule or Minority Will 6 (1999).Google Scholar

⁶¹ See, e.g., Cross & Harris, supra note 41, at 19–20; Neil Duxbury, The Nature and Authority of Precedent 123 (2008); Saul Brenner & Harold Spaeth, Stare Indecisis 1 (1995); Caldarone, Richard P., Precedent in Operation: a comparison of the judicial House of Lords and the US Supreme Court, 2004 Pub. L. 759, 787. The idea is captured elegantly by Moore & Oglebay: “[Stare decisis] does not command unquestioning obedience to the past. It is a friendly and frequently persuasive link with what has gone before.” See James Wm. Moore & Robert Stephen Oglebay, The Supreme Court, Stare Decisis and the Law of the Case, 21 Tex. L. Rev. 514, 552 (1943).Google Scholar

⁶² See also Mirshahvalad et al., supra note 24; Derlén et al., supra note 24.Google Scholar

⁶³ See generally Brandes, Ulrik & Erlebach, Thomas, Fundamentals, in Network Analysis – Methodological Foundations 7 (Ulrik Brandes & Thomas Erlebach eds., 2005).Google Scholar

⁶⁴ The existence of directed links gives added value to the network. See Leicht, Elizabeth A. & Mark E. J. Newman, Community Structure in Directed Networks, 100 Phys. Rev. Letters 118703 (2008). It is noteworthy that while citations only can go backwards in time, ideas flow through the network in the opposite direction, from older to newer cases.Google Scholar

⁶⁵ See Kleinberg, Jon M., Authoritative Sources in a Hyperlinked Environment, 64 J. of the ACM 604 (1998). Regarding its application in a legal context, see, e.g., Katz, Daniel M. & Stafford, Derek K., Hustle and Flow: A Social Network Analysis of the American Federal Judiciary, 71 Ohio St. L.J. 457, esp. 491–44 (2010).Google Scholar

⁶⁶ Other examples of such measurements, besides the ones discussed below, are Eigenvector and Katz centrality.Google Scholar

⁶⁷ See Dirk Koschützki et al., Centrality Indices, in Network Analysis – Methodological Foundations 16, 53 (Ulrik Brandes & Thomas Erlebach eds., 2005).Google Scholar

⁶⁸ See Lambiotte, Renaud & Rosvall, Martin, Ranking and clustering of nodes in networks with smart teleportation, 1 (2012), available at http://arxiv.org/pdf/1112.5252.pdf (May 12, 2017); Koschützki et al., supra note 67, at 53.Google Scholar

⁶⁹ See Fowler & Jeon, supra note 28. We generally favor using the PageRank algorithm that serves as the basis for how Google ranks webpages. See, e.g., Mattias Derlén & Johan Lindholm, The Court of Justice and the Ankara Agreement: Exploring the Empirical Approach, 2012 Europarättslig tidskrift 462 (2012); Derlén & Lindholm, supra note 24. Very simplified, PageRank allows a “Random Walker” to explore the structure of the network by randomly following citations and occasionally teleporting to a random link in the network. PageRank, which is expressed as a percentage value, represents the relative probability that the Random Walker will find itself in a certain place and represents, as applied to a case law network, a decision's popularity. See Brin, Sergey & Page, Lawrence, The anatomy of a large-scale hypertextual Web search engine, 30 Computer Networks & ISDN Systems 107 (1998); Lawrence Page et al., The PageRank Citation Ranking: Bringing Order to the Web (January 29, 1998), available at http://ilpubs.stanford.edu:8090/422/1/1999-66.pdf (March 15, 2015).Google Scholar

⁷⁰ Kleinberg, supra note 65. HITS stands for Hyperlink-Induced Topic Search. As indicated by the title of his article, Kleinberg developed the algorithm for use on the World Wide Web, but it has been used in the context of case law networks. See Fowler et al., supra note 28, at 330–32.Google Scholar

⁷¹ The initial step of using the HITS algorithm is to construct a focused subgraph of the network, for which the algorithm is employed. See Kleinberg, supra note 65, at 608–10. This is necessary in the context of the World Wide Web and other large networks in order to limit computational cost, but not with a network as small as ours. Consequently, we operate the HITS algorithm on the entire CJEU case law network.Google Scholar

⁷² Fowler et al., supra note 28, at 331.Google Scholar

⁷³ Id. Google Scholar

⁷⁴ Kleinberg, supra note 65, at 611.Google Scholar

⁷⁵ Kleinberg gives the following example, where p denotes page, x authority weight and y hub weight: “If p points to many pages with large x-values, then it should receive a large y-value; and if p is pointed to by many pages with large y-values, then it should receive a large x-value.” Kleinberg, supra note 65, at 611 (italics omitted). In other words, if a judgment cites many influential cases, it should be considered a well-founded case, and if a judgment is cited by many well-founded cases it should be considered an influential case.Google Scholar

⁷⁶ Naturally, this is only a minimum requirement. In reality a court will often interact with judgments that are similar, for example in order to distinguish them.Google Scholar

⁷⁷ See infra Part D.II.Google Scholar

⁷⁸ See infra part D.III.Google Scholar

⁷⁹ John Scott, Social Network Analysis 81 (4th ed. 2017).Google Scholar

⁸⁰ It should be noted that density is quite different than simply measuring average number of citations.Google Scholar

⁸¹ Calculated on the basis of Fowler & Jeon, supra note 28, at 18 (220,500 citations between 30,288 cases).Google Scholar

⁸² Compare Figures 5 and 6 infra. Google Scholar

⁸³ Fowler & Jeon, supra note 28, at 17. The study by Fowler & Jeon includes all judgments in the U.S. Supreme Court Reporter. The latter includes judgments decided by the Supreme Court of Pennsylvania, before the establishment of the SCOTUS. See id at 17, footnote 1. It should be noted that Fowler et al., supra note 28, studies a slightly different data set consisting of all decisions between 1791 and 2005. Id. at 326.Google Scholar

⁸⁴ In fact, the CJEU network is growing about five times as fast as the USSC network and will surpass it in size around the year 2085 if the current trend continues.Google Scholar

⁸⁵ Scott, supra note 79, at 85–87. See also infra Figure 1.Google Scholar

⁸⁶ See infra Part E.III.Google Scholar

⁸⁷ Scott, supra note 79, at 81.Google Scholar

⁸⁸ Id. Google Scholar

⁸⁹ Yonatan Lupu & Erik Voeten, Precedent in International Courts: A Network Analysis of Case Citations by the European Court of Human Rights, 42 British J. Pol. Sci. 413, 424 n. 54 (2012).Google Scholar

⁹⁰ Fowler et al., supra note 28, at 332; Réka Albert & Albert-László Barabási, Statistical Mechanics of Complex Networks, 74 Rev. Mod. Phys. 47, 49 (2002).Google Scholar

⁹¹ Albert & Barabasi, supra note 90, at 49.Google Scholar

⁹² Mark E.J. Newman, Random graphs as models of networks, 99 PNAS 2566 (2002).Google Scholar

⁹³ Fowler et al., supra note 28, at 332; Fowler & Jeon, supra note 28, at 18. See also Lupu & Voeten, supra note 89, at 425–26 (concluding that the same is true for the European Court of Human Rights in Strasbourg).Google Scholar

⁹⁴ Belgium, France, Germany, Italy, Luxembourg, and the Netherlands.Google Scholar

⁹⁵ Tamm, supra note 58, at 9.Google Scholar

⁹⁶ Fowler & Jeon, supra note 28, at 18.Google Scholar

⁹⁷ London Tramways v. London County Council [1898] AC 375.Google Scholar

⁹⁸ Duxbury, supra note 61, at 125–26.Google Scholar

⁹⁹ Fowler & Jeon, supra note 28, at 19. They also discuss average in-degree, but we will return to that measurement below.Google Scholar

¹⁰⁰ Johnson et al., supra note 59, at 172–73.Google Scholar

¹⁰¹ Cross, Frank B. et al., Citations in the U.S. Supreme Court: An Empirical Study of Their Use and Significance, 2010 U. Ill. L. Rev. 489, 528–29 (2010).Google Scholar

¹⁰² Fowler & Jeon, supra note 28, at 19.Google Scholar

¹⁰³ Johnson et al., supra note 59, at 169.Google Scholar

¹⁰⁴ Id. at 169–72.Google Scholar

¹⁰⁵ Fowler & Jeon, supra note 28, at 19; infra Figure 5.Google Scholar

¹⁰⁶ Id. Google Scholar

¹⁰⁷ Kurland has written an overview of the history and importance of the Warren Court. See P B Kurland, Politics, The Constitution, And The Warren Court (1970).Google Scholar

¹⁰⁸ Brown v. Board of Education, 347 U.S. 483 (1954); Miranda v. State of Arizona, 384 U.S. 436 (1966); Spaeth & Segal, supra note 60, at 163.Google Scholar

¹⁰⁹ Yet, as discussed further below, this is a complicated issue. See Spaeth & Segal, supra note 60, at 207 (arguing that the Warren court does not deviate significantly from the view of precedent as compared to other courts, claiming that “the Warren Court neither invented nor perfected preferential decision making.”).Google Scholar

¹¹⁰ See figure 4 infra. Google Scholar

¹¹¹ Arnull, supra note 9, at 252; Tridimas, supra note 12, at 309.Google Scholar

¹¹² Fowler & Jeon, supra note 28, at 19.Google Scholar

¹¹³ This might explain the relatively high average out-degree in 1955 and 1959.Google Scholar

¹¹⁴ See infra Figure 8. See also Tridimas, supra note 12, at 309 (describing the development in a similar way).Google Scholar

¹¹⁵ Fowler & Jeon, supra note 28, at 19; infra Figure 7.Google Scholar

¹¹⁶ Fowler & Jeon, supra note 28, at 19; Johnson et al., supra note 59, at 172–73.Google Scholar

¹¹⁷ Fowler & Jeon, supra note 28, at 19.Google Scholar

¹¹⁸ Regarding judicial activism in the CJEU, see, e.g., Hartley, Trevor, Constitutional Problems of the European Union (1999); Hjalte Rasmussen, Between Self-Restraint and Activism: A Judicial Policy for the European Court, 1988 Eur. L. Rev. 28; Takis Tridimas, The Court of Justice and Judicial Activism, 1996 Eur. L. Rev. 199.Google Scholar

¹¹⁹ Joined Cases C-6/90 and C-9/90, Andrea Francovich and Danila Bonifaci and others v Italy, EU:C:1991:428.Google Scholar

¹²⁰ Hartley, supra note 118, at 60.Google Scholar

¹²¹ Derlén & Lindholm, supra note 24, at 685. Francovich is the sixth best hub of the network, only surpassed by Bosman, Preussen Elektra, Gebhard, Schumacker, and Becker. Google Scholar

¹²² Alec Stone Sweet & Margaret McCown, Discretion and Precedent in European Law, in Judicial Discretion in European Perspective 84, 96–97 (Ola Wiklund ed. 2003).Google Scholar

¹²³ For different views of the accession of the common law countries as an explanation for the change in attitude at the CJEU vis-à-vis case law, compare Schermers, Henry G. & Waelbroeck, Denis F., Judicial Protection in the European Communities para. 171 (4th ed. 1987) and Thijmen Koopmans, Stare decisis in European Law, in Essays in European Law and Integration 11, 17 (David O. O'Keeffe & Schermers, Henry G. eds., 1982).Google Scholar

¹²⁴ Fowler & Jeon, supra note 28, at 19, fig. 3.Google Scholar

¹²⁵ See supra Part A.I.Google Scholar

¹²⁶ See supra Figure 4.Google Scholar

¹²⁷ See supra Figure 6.Google Scholar

¹²⁸ See infra Part F.IV.Google Scholar

¹²⁹ The length of the “tail” suggests that it on average takes seven years for a case to reach its peak citation potential. However, we return to this issue in Part F.IV infra. Google Scholar

¹³⁰ See figure 9 supra. Google Scholar

¹³¹ See supra Part D.III and figure 2.Google Scholar

¹³² Case 8/74, Procureur du Roi v. Benoít and Gustave Dassonville, EU:C:1974:82.Google Scholar

¹³³ Derlén & Lindholm, supra note 24, at 673. Dassonville has been cited 112 times in our dataset. Other frequently cited judgments rendered in 1974 include Case 2/74, Reyners v. Belgium, EU:C:1974:68 (35 citations) and Case 41/74, van Duyn v. Home Office, EU:C:1974:133 (23 citations). The impact of these cases on the average increases as the court only decided 62 cases that year.Google Scholar

¹³⁴ See supra Part E.II.Google Scholar

¹³⁵ Fowler & Jeon, supra note 28, at 19.Google Scholar

¹³⁶ See supra Part E.II.Google Scholar

¹³⁷ Fowler & Jeon, supra note 28, at 19–20.Google Scholar

¹³⁸ See supra Part C.II.Google Scholar

¹³⁹ If we are studying a single case an alternative explanation is that the case has been overruled and is no longer good law. See further infra Part F.V. A third, possible explanation is that the Court instead cites another case in support of the same point of law.Google Scholar

¹⁴⁰ Case 8/74, Dassonville, EU:C:1974:82; Case 120/78, Cassis de Dijon, EU:C:1979:42.Google Scholar

¹⁴¹ Case 85/76, Hoffmann-La Roche, EU:C:1979:36; Case 27/76, United Brands, EU:C:1978:22.Google Scholar

¹⁴² Case 26/62, Van Gend en Loos, EU:C:1963:1; Case 6/64, Costa v. ENEL, EU:C:1964:66; Case 29/69, Stauder, EU:C:1969:57; Case 41/74, Van Duyn, EU:C:1974:133; Case 43/75, Defrenne II, EU:C:1976:56; Case 106/77, Simmenthal II, EU:C:1978:49.Google Scholar

¹⁴³ This ensures that all studied decisions have had an opportunity to be cited. See further infra Part F.IV.Google Scholar

¹⁴⁴ Compare infra Part F.IV.Google Scholar

¹⁴⁵ See supra Part D.III.Google Scholar

¹⁴⁶ Fowler & Jeon, supra note 28, at 25.Google Scholar

¹⁴⁷ Id. (25.5 years compared to 27.2 years).Google Scholar

¹⁴⁸ Id. (as expected, important cases reaches a higher average authority at peak as compared to other cases).Google Scholar

¹⁴⁹ This is also supported by the length of the inward citation “tail”, see supra Part F. II.Google Scholar

¹⁵⁰ Fowler & Jeon, supra note 28, at 25.Google Scholar

¹⁵¹ See Derlén & Lindholm, supra note 24 (regarding what constitutes an important case).Google Scholar

¹⁵² The interesting development of Torfaen is discussed further infra Part F.V.Google Scholar

¹⁵³ Cross & Harris, supra note 41, at 127.Google Scholar

¹⁵⁴ Id. at 127–28.Google Scholar

¹⁵⁵ Id. at 129–30.Google Scholar

¹⁵⁶ Cross & Harris claim that “[t]here are many instances, some American lawyers would say too many, in which the Supreme Court has overruled a previous decision.” Id. at 19. No source is given as to who these “American lawyers” are.Google Scholar

¹⁵⁷ Gerhardt, supra note 54, at 34.Google Scholar

¹⁵⁸ Fowler & Jeon, supra note 28, at 25.Google Scholar

¹⁵⁹ Id. Google Scholar

¹⁶⁰ Id. at 25–26.Google Scholar

¹⁶¹ Id. at 26.Google Scholar

¹⁶² See, e.g., Tridimas, supra note 12, at 316.Google Scholar

¹⁶³ Case 29/69, Stauder v. Ulm, EU:C:1969:57.Google Scholar

¹⁶⁴ See supra Part E.III.Google Scholar

¹⁶⁵ Tridimas, supra note 12, at 317 (according to whom Keck constitutes “the most spectacular departure from precedent in the Court's history”).Google Scholar

¹⁶⁶ Joined Cases C-267/91 and C-268/91, Criminal Proceedings against Keck and Mithouard, EU:C:1993:905.Google Scholar

¹⁶⁷ Id. at para. 14.Google Scholar

¹⁶⁸ The case law of the Court of Justice regarding so-called selling arrangements (rules regarding when, where and how goods are sold) before the Keck judgment was complex and contradictory, with the Court taking different approaches to the issue. See also Mattias Derlén & Johan Lindholm, Article 28 E.C. and Rules on Use: A Step Towards a Workable Doctrine on Measures Having Equivalent Effect to Quantitative Restrictions, 16 Col. J. Eur. L. 191 (2010).Google Scholar

¹⁶⁹ Case C-145/88, Torfaen Borough Council v B & Q plc, EU:C:1989:593.Google Scholar

¹⁷⁰ Keck is tied for seventh place as the best hubs of the CJEU network. See Derlén & Lindholm, supra note 24, at 685.Google Scholar

¹⁷¹ Johnson et al., supra note 59, at 172–75.Google Scholar

¹⁷² Id. at 175.Google Scholar

¹⁷³ Arnull, supra note 9, at 265.Google Scholar

¹⁷⁴ See supra Part B.Google Scholar

¹⁷⁵ Tridimas, supra note 118.Google Scholar

¹⁷⁶ Gerhardt, supra note 54, at 97.Google Scholar

¹⁷⁷ Hathaway, supra note 41, at 656.Google Scholar

¹⁷⁸ Hartley, supra note 118, at 57.Google Scholar

¹⁷⁹ Tridimas, supra note 12, at 323–24.Google Scholar