Zoltan Fazekas (Copenhagen Business School)

Work in Progress Seminar – Raising Moral Considerations: Intra-Court Bargaining and Moral Language

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 3,000 individual opinions from the European Court of Human Rights. First, using both between and within-case analyses we show that judges rely more on moral rhetoric when they disagree with the majority decision. Second, we find evidence for this strategic use of language being effective as it reduces future panels’ reliance on the majority ruling in future decision making. In addition, this strategic use of moral language is more successful than simply relying on valence or emotional considerations.