Selecting Landmark Cases

By Laura Van den Eynde, Research Fellow (F.N.R.S.) at the Center for Public Law – Université libre de Bruxelles. Laura’s Ph.D. research focuses on the relationships between human rights NGOs and jurisdictions and the influences these organizations have on judicial dialogue.

This post aims at discussing a question related to case selection when conducting research. The relevance or the need to limit the number of cases to examine is particularly acute regarding the European Court of Human Rights (whose case law contains many repetitive cases). One option is to analyse ‘landmark cases’, which requires a more precise definition or at least a coherent methodology for drawing up the list of cases. Although the term is frequently used, it is often difficult to rely on a specific criterion to determine what a ‘landmark’ case is[1] and more research seems to have been conducted regarding the United States or the Court of Justice of the European Union.

According to a first approach, a landmark case is portrayed as a milestone in legal development: it consolidates preceding fragmented practices or openly breaks with them; it narrows down established doctrines or extend them to new circumstances; or it declares new principles or resolves new questions of law.[2] This approach is essentially characterized by the analysis of the intrinsic merits of the case.[3] According to another approach, more rooted in social sciences, landmark cases are rather symbolic categories, constructed gradually in legal and political struggle.[4] This approach “looks at the historical contexts in which the cases were decided”.[5] Additional factors taken into account when designating cases as landmark are for example “the vital role played by subsequent courts in constructing the canonicity of cases”[6] and by other institutional actors and “the role of textbooks and academics in constructing the canonicity, or extending the influence, of cases”.[7] The criteria are thus flexible and seem tied not only to legal doctrine but to historical circumstances and behavioural idiosyncrasies.[8]

A closely related notion is that of ‘issue salience’ (used mainly by political scientists). The American scholars Segal and Epstein investigated the notion and in particular its application in research on justices.[9] They cite different approaches and their drawbacks, such as the measure of cases excerpted in multiple constitutional law books, the indicator of substantial amicus curiae participation or the use of existing compendiums and lists. They offer another approach: the coverage the media affords to a given issue, measured through front-page stories in the New York Times. This type of analysis would be difficult to reproduce on the European continent. Other authors use the citation network approach.[10]

Sometimes courts themselves give indication as to the landmark features of certain precedents. This is the case regarding the European Court of Human Rights. It publishes on its website Reports of Judgments and Decisions which is “an official collection of the Court’s leading judgments, decisions and advisory opinions since 1998”. It explains that the selection of the most important cases is made by the Bureau (composed of the President and Vice-Presidents of the Court and of the Section Presidents) following a proposal by the Jurisconsult (who is generally responsible for case-law monitoring and prevention of case-law conflicts) but does not explicate the criteria that make cases qualify as ‘leading’. It also ranks the importance of cases (the highest level being ‘case reports’, followed by levels 1, 2 and 3) in its database. In addition, the Press Services also compile lists of cases per area and present them as ‘factsheets’ which can be a helpful start.

The criteria used to select landmark cases thus differ from one study to the other, depending among others on the research question, the desired length of the study or the concern for being balanced if a comparative approach with other courts is foreseen. I believe that the key elements are transparency regarding the adopted methodology, honesty (by not dismissing cases that do not fit the thesis for example) and discussions with peers.

Regarding my own research, I opted for a broad, dynamic concept of case relevance and established a list of landmark cases combining different criteria: the intrinsic merits of the cases, the historical context in which they appeared, their subsequent use by courts and litigants, the courts’ own indication that some cases are leading, compendia established by NGOs, the public attention they received (mainly in newspapers articles, blogs and conferences’ themes) and their treatment as important cases by academics (in their writings or by discussing with them).

____________________

[1] Scholars deplore that the criteria for the selection of grands arrêts, regularly collected and published in printed volumes or textbooks, are very rarely made explicit. One example of explicit criteria is the collection of important ECtHR cases by Frédéric Sudre et al. In the introduction, Sudre explains that the choice for specific cases is based on scientific and pedagogical considerations: scientific when the cases define a key notion of the Convention, determine the content of a provision, establish the principles of the jurisprudential control or proceed from an overruling. He clarifies that an important case does not necessarily mean a case that extends the protection of human rights. Pedagogical considerations also influence the choice of cases, favouring cases that formulate in a clearer way the applicable rule than cases in which it appeared for the first time; Frédéric Sudre et al., Les Grands Arrêts de La Cour Européenne Des Droits de l’Homme, 7th ed. (Paris: Thémis, 2015), 2.

[2] Urska Sadl and Yannis Panagis, “What Is a Leading Case in EU Law? An Empirical Analysis,” European Law Review 40, no. 1 (2015): 19.

[3] Ernest Lim, “Of ‘Landmark’ or ‘Leading’ Cases: Salomon’s Challenge,” Journal of Law and Society 41, no. 4 (2014): 524.

[4] See for example Vauchez’s analysis of the construction of the ECJ’s Van Gend en Loos case as a landmark decision by a lobby of jurist networks and associations seeking to promote EC law; Antoine Vauchez, “The Transnational Politics of Judicialization. Van Gend En Loos and the Making of EU Polity,” European Law Journal 16, no. 1 (2010): 1–28.

[5] Lim, “Of ‘Landmark’ or ‘Leading’ Cases,” 524.

[6] Ibid., 523.

[7] Ibid., 550.

[8] Marc Jacob, Precedents and Case-Based Reasoning in the European Court of Justice (Cambridge University Press, 2004), 86.

[9] Lee Epstein and Jeffrey A. Segal, “Measuring Issue Salience,” American Journal of Political Science 44, no. 1 (2000): 72.

[10] See for example Sadl and Panagis, “What Is a Leading Case in EU Law? An Empirical Analysis,” 20. They expose legal scholars’ scepticism towards this approach, mainly because legal relevance should also be assessed qualitatively and not only quantitatively; Ibid., 20–21. See also James H. Fowler et al., “Network Analysis and the Law: Measuring the Legal Importance of Precedents at the U.S. Supreme Court,” Political Analysis 15, no. 3 (2007): 324–46. Although their primary purpose was not to establish a list of ECtHR landmark cases, see Yonatan Lupu and Erik Voeten, “Precedent in International Courts: A Network Analysis of Case Citations by the European Court of Human Rights,” British Journal of Political Science 42, no. 02 (2012): 413–39.