The Reasons Highest Courts Give: England, France, Germany: 1880–89 and 2007–16

Holger Spamann, Jasper Kunstreich, Markus Lieberknecht, Heinrich Nemeczek and Stefan Vogenauer

The Journal of Legal Studies, 2026, vol. 55, issue 2, 365 - 395

Abstract: We quantitatively compare the use of legal authorities (cases, statutes, and literature) in three paragon jurisdictions of common law (England) and civil law (France and Germany). From each jurisdiction, we sample 40 representative opinions of its apex court in contract cases in the years 1880–89 and 2007–16. The odd one out, if any, is France, not England. England and Germany differ only in degree, not kind. For example, most German opinions were already citing and distinguishing precedent in the 1880s. However, the Germans tend to engage less closely with precedent than the English. Moreover, a new gap has developed with respect to the use of scholarly literature, which only the modern German court engages extensively. Our findings challenge popular accounts of differences and convergence between common and civil law.

Date: 2026
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