Paper co-authored with: Øyvind Stiansen
Abstract: Judges frequently use language strategically. Extant scholarship has focused on the rhetorical strategies courts employ to persuade external audiences. For courts that develop precedents and face internal disagreements internally, judges also face incentives to use language strategically to influence the development of case law. We argue that judges invoke moral considerations in dissenting and concurring opinions to persuade future panels to depart from established case law. We evaluate our argument using quantitative text analysis on more than 10 000 majority rulings and 3000 individual opinions from the European Court of Human Rights. We show that judges rely more on moral rhetoric when their disagreement with the majority ruling increases and that this strategy is effective in reducing future panels' reliance on the majority ruling in future decision making.
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