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Towards a theory of judicial agency in international settings: Government input and litigant success before the European Court of Justice

Courts
Judicialisation
Mobilisation
Louisa Boulaziz
Universitetet i Oslo
Louisa Boulaziz
Universitetet i Oslo
Tommaso Pavone
University of Toronto
Silje Synnøve Lyder Hermansen
University of Copenhagen

Abstract

In this article we study how international courts balance between the input from government and non-governmental actors. We integrate theories of legal mobilization with theories of judicial politics in international settings, two literatures that hitherto have evolved in mutual ignorance. Our contribution is twofold: First, we study international courts' decision-making from two dimensions, government and non-governmental actors, effectively bridging two literatures. Then, we develop and empirically test a theory to understand under what political conditions international courts respond to the input from private litigants and their legal counsel. We draw on an original dataset of parties and lawyers involved in preliminary references before the European Court of Justice, and leverage variation in both governments’ involvement and the quality of parties’ legal representation to assess the decision-making of the Court. We find that with the 'permission' of governments the Court considers arguments from private lawyers and finds itself in an opportunity to redo its case-law. Absent government permission, the Court more often decide cases in line with previous case-law than give sway to quality arguments. We conclude by highlighting the necessity to bring theories of legal mobilization closer to judicial politics for explaining litigant success and judicial agency in international settings.