Borrowing and Nonborrowing among International Courts

Why do some international courts and judges extensively cite decisions from other courts, whereas others do not? I examine what light theories of transjudicial communication shed on this question. I then confront these theoretical expectations with an in-depth analysis of citations by the European Court of Human Rights (ECtHR) and a global analysis of broader cross-citation patterns. First, contrary to its transnationalist reputation, the ECtHR rarely cites other courts in judgments, although ECtHR judges do so regularly in separate opinions. Second, ideology matters: judges who are inclined toward an expansive interpretation of the European Convention are more likely to use external citations. Third, there are large asymmetries in the extent to which international courts rely on each other’s jurisprudence, contradicting the argument that transjudicial communication is driven by reciprocity principles. Fourth, the evidence is consistent with the notion that judges sometimes refrain from citing external sources for strategic reasons.