Can International Courts Enhance Domestic Judicial Review? Separation of Powers and the European Court of Justice

Abstract

How courts ensure the efficacy of their decisions poses one of the central challenges to the quality of modern liberal democracy. In this article, we consider how the ability of domestic courts to engage with their international counterparts through preliminary reference procedures can further this goal. Arguing that domestic courts use preliminary reference procedures to affect the probability that their governments comply with adverse judicial decisions, we construct a formal model of the reference procedure and test a series of empirical implications with a novel data set of domestic court cases involving the European Union’s preliminary reference procedure. We find that courts are more likely to refer cases as the risk of noncompliance increases and that this relationship is conditional on the level of public trust in the Court of Justice of the European Union and the position of a court in the domestic judicial hierarchy.