The Leading Case: Fundamental Elements of a Concept and Its Workings in EU Law
In various legal orders, certain judgments stand out from the rest of the jurisprudence. They appear as part of legal dogmatics, as textbook examples, in casebooks or as an indispensable reference for legal scholarship. As such, these judgments are important for legal professional socialization. They provide orientation and strengthen the ability to navigate in a legal order. They are leading cases.
What makes a leading case? The Ph.D. thesis posits that it is not the judgment itself but its processing in various discourses, which ultimately contributes the development of a leading case. To this end, the Ph.D. thesis draws on insights from literary and cultural studies on the formation of canons. These insights are combined with a reconstruction of the similarities of the judgments in Marbury v. Madison, Lüth and Van Gend en Loos in order to identify factors which are essential to the development of leading cases. However, it is also important to take a closer look at this process beyond big founding moments. This is especially true for the judgments of the Court of Justice of the European Union, because this court has a wide sphere of influence. Its judgment in Kadi and Al Barakaat International Foundation (C-402/05 P, C-415/05 P) stimulated debates in different discourses.
An analysis of references to Kadi in the discourses of legal scholarship, the CJEU and politics illustrates: leading cases are the result of processes in which different interpretive collectives strive to secure their self-understanding by connecting it to the judgment. The analysis also reveals the particularities of leading case development in the European Union legal order. These particularities have implications for legal scholarship and for judicial decision-making. Ultimately, the focus is on the fact that leading cases both provide access and have an excluding effect. The Ph.D. thesis concludes with reflections on the potentials for action and research connected with this dilemma.