Path Dependency or Dynamic Consistency in EU Anti-Discrimination Law?

Has EU anti-discrimination law developed in a straight line through the case law of the Court of Justice of the European Union (CJEU)? According to studies relying on path dependency theories, the answer would be yes. Studies relying on path dependence build on the premise that jurisprudence continues in a line of reasoning from the earliest to the latest judgments, and in different areas of the law, as a result of a lock-in process of analogical reasoning. In this article we show why the theoretical framework of path dependency cannot account for court driven legal development, specifically in the area of EU anti-discrimination law, and how difficult it is to empirically substantiate the argument of path dependency. We conduct an empirical test of the path dependency theory in CJEU’s case law within the area of anti-discrimination law. In order to do so, we build a case law citation network from where we can detect precedents as the most cited paragraphs of the cases. We explore the ways in which these precedents travel through the entire jurisprudence in flows of information and on this basis test for path dependency as similarity between citing and cited paragraphs. We find no signs of path dependency. The objective of this paper is to supplement the scholarship on path dependency by pointing to its limitations and methodological constraints. On the basis of our study, we propose to adjust the theory of case law development away from that of path dependency and towards what we choose to call case law which is dynamically consistent.