3 - How to Nail Down a Cloud

Summary

This chapter addresses the question of how the CJEU engages with its own past cases in its reasoning. The chapter focuses on how to identify the most legally authoritative precedents in the CJEU non-discrimination jurisprudence that implies a corpus of cases. Frese shows empirically how the corpus of CJEU cases, built over the course of the past sixty years, assigns different degrees of authority to each case according to how the court uses them. This chapter demonstrates that the network approach to the study on precedent provides a highly useful method, which has the specific advantage of shifting the viewpoint of which cases are authoritative from the scholarly perspective to the CJEU’s perspective by tracing the court’s own references and citations to its past cases. In departing from traditional theories of what precedent is and how it constrains, the chapter operationalizes the concept of precedent as, initially, a mathematical authority. By mapping all the references and citations between cases, it is furthermore shown how the court itself creates legal ‘authorities’ in its jurisprudence as it cites some cases very frequently while others less. By highlighting how the network approach provides useful tools for understanding the CJEU’s reasoning and decision-making practices, the chapter also shows that this approach should refine and supplement, rather than substitute, EU law doctrinal analyses.