
Contents
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1. Introduction: Of Abstract Models and Causality 1. Introduction: Of Abstract Models and Causality
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2. General Factors 2. General Factors
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2.1. The Political and the Legal 2.1. The Political and the Legal
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2.2. The Size 2.2. The Size
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2.3. The Age 2.3. The Age
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3. Institutional Factors 3. Institutional Factors
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3.1. Level of the Court in the Judicial Hierarchy 3.1. Level of the Court in the Judicial Hierarchy
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3.2. Analytical Back-up 3.2. Analytical Back-up
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3.3. Points of Reference, Networks, Databases 3.3. Points of Reference, Networks, Databases
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4. Procedural Factors 4. Procedural Factors
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4.1. Cases Selection 4.1. Cases Selection
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4.2. Activity of the Parties 4.2. Activity of the Parties
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4.3. Amicus curiae 4.3. Amicus curiae
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4.4. Costs of Litigation 4.4. Costs of Litigation
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5. Human Factors 5. Human Factors
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6. Comparisons in Private and in Public Law 6. Comparisons in Private and in Public Law
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7. Constitutional Adjudication and Human Rights 7. Constitutional Adjudication and Human Rights
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3 Factors Influencing the Use of Comparative Arguments by Courts
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Published:August 2013
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Abstract
Whether or not judges use comparative arguments is determined by a complex interplay of a number of legal and extra-legal factors within each legal system. The chapter introduces and discusses a number of such factors, which influence the likelihood of the use of comparative reasoning within judicial decision-making at the national level. The factors are grouped into four areas: general, institutional, procedural, and human factors. The closing two sections of this chapter discuss two specific, domain-dependent issues: first, whether it makes any difference, for the likelihood of the use of comparative reasoning, if the dispute at hand pertains to the area of private law or public law. Secondly, the final section addresses the same question with respect to the area of constitutional adjudication and human rights.
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