Historical Institutionalism and Judicial Decisionmaking-2

Downloaded from https://www.cambridge.org/core.
Universidad Nacional de Mexico (UNAM), on 31 Oct 2019 at 18:32:51, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms.
Historical Institutionalism
and Judicial Decision-Making
Ideas, Institutions, and Actors in French
High Court Hate Speech Rulings
By ERIK BLEICH*
C OURTS play an increasingly important role in shaping political,

economic, and social life in liberal democracies. Over the past two
decades, scholars of comparative politics and international relations
have explored judicial behavior in a wide variety of settings.1 Historical
institutionalists have contributed to these analyses largely by focusing
on the way deeply embedded structures shape judicial decision-mak-
ing. These studies have emphasized the intellectual, social, and politi-
cal contexts that can help explain court behavior, and in particular, they
have focused on the role of ideas.2
At the same time, historical institutionalism in the study of courts
has been critiqued as “more of a mood or persuasion than a clear theory
or analytic approach.”3 This criticism resonates in part because histor-
ical institutionalists have most frequently sought to understand judi-
cial activity in particular domains or locations rather than to identify
recurrent, patterned interactions among ideas, institutions, and actors
that contribute to understanding outcomes across multiple settings.
Moreover, while this body of scholarship has done much to illuminate
* The research for this article was supported by grants from Middlebury College, the eurias/
Collegium de Lyon, and the Fulbright Scholar Program. I would like to thank Keith Bybee, Rachel
Cichowski, Colin Elman, Paul Frymer, Anna Grzymala-Busse, Peter Hall, Zoe Hamilton, Thomas
Hochmann, Alan Jacobs, Bert Johnson, Robert Kahn, Diana Kapiszewski, Thomas Keck, Pascal
Mbongo, Aziz Rana, Daniel Sabbagh, Allison Stanger, Julie Suk, Kathleen Thelen, Erik Voeten, Amy
Yuen, the Middlebury College Political Science Department Faculty Research Group, and the anon-
ymous World Politics reviewers for helpful feedback.
1
Stone Sweet 2000; Hirschl 2004; Dyevre 2010; Lupu and Voeten 2012; Hilbink 2012; Kapiszew-
ski, Silverstein, and Kagan 2013; Alter 2014.
2
Smith 1988; Whittington 2000, 603; Smith 2008, 52–7.
https://doi.org/10.1017/S0043887117000272
3
Whittington 2000, 617.
World Politics, 70, no. 1 ( January 2018), 53–85

Copyright © 2017 Trustees of Princeton University
doi: 10.1017/S0043887117000272
Downloaded from https://www.cambridge.org/core. Universidad Nacional de Mexico (UNAM), on 31 Oct 2019 at 18:32:51, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms.
54 w o r l d p o li t i c s
judicial continuity, it has rarely drawn on research by historical institu-

tionalists who have sought to theorize change over time.4
This article integrates insights from different veins of historical in-
stitutionalism to offer an analytical framework that specifies how ideas,
institutions, and actors account for key aspects of judicial decision-
making, including change over time. The hate speech decisions of the
Court of Cassation, France’s highest court for criminal and civil law,
provide the context for the development of the argument and serve to
illustrate this dynamic.
As elsewhere, hate speech prohibitions in France were originally en-
acted mainly to protect vulnerable groups. But the laws themselves were
framed in neutral terms that permit restrictions on any speech degrad-
ing people based on race, ethnicity, religion, or national origin. The
mismatch between the law’s non-neutral intent and its neutral wording
raises the question of whether French courts have more frequently re-
stricted antiminority speech than antimajority speech, or whether they
have enforced speech restrictions at equal rates across these sets of tar-
get groups. In fact, the French high court has more often sided with re-
stricting speech that denigrates prototypical minorities (such as Jews,
Muslims, Blacks, or Arabs) than speech aimed at majorities (such as
Catholics, Christians, Whites, or French).
Even so, the rate of antimajority speech restrictions in the Court
of Cassation has not been constant over time. When the first antima-
jority speech cases were heard by that court in the mid-1990s, they
were just as likely to result in restriction as antiminority cases. In the late
1990s, however, the antimajority speech restriction rate dropped dramati-
cally. These patterns raise two empirical puzzles: What explains the Court
of Cassation’s uneven application of the law across target groups? And what
accounts for the shifts in antimajority speech restriction rates over time?
To address these questions, the framework developed here begins
with the observation that institutions empower particular actors within
a given issue area. When these actors share ideas that are widely dis-
tributed, highly salient, and stable, such ideas can reinforce continuity
in patterns of judicial decisions. But institutions also create the poten-
tial for new actors to enter the field through processes—such as inter-
currence, displacement, conversion, layering, and drift—that have been
https://doi.org/10.1017/S0043887117000272
identified by theorists of institutional evolution.5 These developments

can change not only the actors involved, but also the distribution, sa-
lience, and stability of prevailing ideas.
4
Smith 2008; Mahoney and Thelen 2010b; Conran and Thelen 2016.
5
Hacker 2004; Mahoney and Thelen 2010b; Conran and Thelen 2016.
judicial decision-making 55
Institutionalists have frequently shown that actors with alternate sets

of ideas can transform politics through contestation.6 I demonstrate
that emergent actors don’t have to engage in efforts to supplant one set
of ideas with another. In many circumstances, dominant groups within
a field simultaneously hold multiple, potentially conflicting ideas. New
actors can thus activate latent frictions among these deeply rooted ideas.
Amplifying the salience of alternative preexisting ideas can reconfigure
the logic by which decisions are made, and can change patterns of out-
comes within an issue area.
With respect to judicial decision-making in France, a foundational
1972 law empowered nongovernmental antiracist associations to ini-
tiate criminal hate speech cases. These actors all held the “classic
antiracist” idea that hate speech provisions were intended to protect
vulnerable minorities. This idea was widespread, highly salient, and sta-
ble among all judicial actors in the time period between passage of the
law and the early 1990s. The 1972 law also structured hate speech in-
fractions to parallel prohibitions on other types of speech, encouraging
French courts to apply the new provisions in a way that conformed to
preexisting jurisprudence. Together, these factors helped to account for
a unique focus on antiminority hate speech and for a high restriction
rate during this era.
But in the mid-1990s a far-right legal group, the General Alliance
against Racism and for Respect for French and Christian Identity
(l’Alliance Générale contre le Racisme et pour le respect de l’Identité
Française et chrétienne, or agrif), engaged in institutional conversion
to bring antimajority cases into the judicial field for the first time. In
this second time period, the agrif amplified the salience of the norm of
judicial neutrality and dampened the salience of the classic antiracism
idea, in part by invoking existing jurisprudence that lent support to ar-
guments in favor of restricting antimajority hate speech. This strategy
destabilized the preexisting configuration of judicial ideas, which helps
to explain the equivalent restriction rates in antiminority and antima-
jority cases.
In a third time period, institutional intercurrence increased the
French judiciary’s attention to European Court of Human Rights
(ecthr) decision-making. Since the late 1990s, the ecthr has placed
https://doi.org/10.1017/S0043887117000272
significantly more weight on classic antiracism than on judicial neu-

trality in hate speech cases. The French Court of Cassation adapted to
these cues from the European court, which raised the salience of the
6
Hall 1993; Blyth 2002; Parsons 2003; Mandelkern and Shalev 2010; Schmidt 2010; Béland and
Cox 2010.
classic antiracism idea of protecting vulnerable minorities in domestic

cases. That in turn decreased the importance of norms of strict judicial
neutrality. The result was a dramatic drop in the restriction rate for an-
timajority speech in French hate speech decisions.
In short, institutional structures enabled the entrance of new actors
in the second and third time periods—the agrif through conversion
and the ecthr through intercurrence—which shifted the salience of
ideas about classic antiracism and norms of judicial neutrality, as well
as the way each of those interacted with the norm of conforming to ex-
isting jurisprudence. This dynamic accounts for the French high court’s
uneven restriction rate across target groups, and for the shifts in anti-
majority hate speech restrictions over time.
The evidence for this argument comes from an original data set com-
prising every ruling by the Court of Cassation regarding racist hate
speech between the passage of France’s foundational 1972 antiracism
law and the end of 2012. I supplemented information embedded in
high court holdings by reviewing internal deliberative documents and
by conducting approximately two dozen interviews with judges, prose-
cutors, lawyers, activists, and issue-area experts. Because the argument
is both derived from and explored through the same set of cases in a
practice that Sean Yom calls “inductive iteration,” this article doesn’t
represent an independent test of the analytical framework; instead, it
presents “a theoretically grounded and internally rigorous explanation
that can satisfactorily account for most or all observed outcomes.”7 It
aims to achieve a high level of internal validity, and then to identify the
key constituent elements of the framework and the scope conditions
that allow researchers to test its external validity in analogous cases.
In what follows, I first briefly identify core features of the French ju-
dicial context and specify the dependent variable of hate speech restric-
tions. The next section reviews alternative theoretical approaches to
the comparative study of judicial decision-making. By examining pat-
terns in the 103 high court decisions rendered between 1972 and 2012,
I show that other theoretical approaches cannot easily explain the out-
comes in question. The penultimate section uses process-tracing meth-
ods to demonstrate how a historical institutional approach that focuses
on ideational salience amplification better accounts for patterns in hate
https://doi.org/10.1017/S0043887117000272
speech decisions across the three time periods. The concluding sec-
tion highlights the broader contributions of this study, focusing on how
the framework contributes to our understanding of judicial decision-
7
Yom 2015, 626.
making and helps to conceptualize the role of ideas in historical insti-

tutionalist models of change.
French Court of Cassation Hate Speech Decisions

France’s core hate speech provisions were created by its 1972 antiracism
law, which defined three distinct categories of racial hate speech crimes.
It penalized insult; defamation; and provocation to discrimination, hatred,
or violence, where each infraction was directed at a person or a group of
people on the grounds of “their origins or their belonging or non-be-
longing to a determined ethnic group, nation, race, or religion.”8 New
laws contain ambiguities that courts must resolve, and when initial de-
cisions leave uncertainties, parties can appeal beyond tribunals to re-
gional appellate courts, and eventually to a centralized high court.
France’s Court of Cassation occupies the apex of the judicial pyramid
in criminal, civil, commercial, and social cases.9 The court comprises
approximately one hundred magistrates who are organized into six divi-
sions, each of which seats a panel of at least five judges to hear a case. If
the Court of Cassation rejects an appeal and upholds the lower court’s
decision, the outcome is definitive. If it quashes the appellate court’s de-
cision, it typically remands the case to a different appellate court for re-
trial. In hate speech cases, the Court of Cassation may uphold or quash
a lower court’s reasoning about whether the speech in question truly
constituted the crime of racist insult, defamation, or provocation, and
thus whether it should be restricted or protected by the law. Court of
Cassation decisions are especially significant because they become ref-
erence points for future holdings across the judicial system, and because
they influence the likelihood of obtaining a favorable outcome in fu-
ture cases. Given that its role is to synchronize the application of the
law across the entire country, the court is especially important in draw-
ing the line between legal free speech and illegal racist speech.
To understand patterns in Court of Cassation decision-making, I
have assembled an original data set comprising each decision involving
racist hate speech that was rendered based on France’s antiracism law
and that occurred between its passage in 1972 and the end of 2012.10
This data set was composed using multipronged searches of the official
https://doi.org/10.1017/S0043887117000272
8
Law 72-546 of July 1, 1972, which revised articles 33, 32, and 24 of the Press Law of 29 July, 1881.
9
What follows draws on the Court of Cassation’s English-language summary of its structure and
function, available at: https://www.courdecassation.fr/about_the_court_9256.html.
10
This data set was originally assembled with Zoe Hamilton. We jointly read and coded every sub-
stantive case.
Légifrance database, cross-checked in a series of steps designed to ensure

comprehensive coverage of relevant cases (see Appendix 1). The search
identified 256 cases related to racist hate speech, of which 153 were
adjudicated on procedural or technical grounds, such as whether the
appeal was filed by the deadline, whether the lower court correctly ar-
ticulated the portion of the law it used to render its decision, or whether
the group filing the appeal had legal standing to do so. The remaining
103 cases were decided based on whether the speech constituted insult,
defamation, or provocation with regard to a protected group. Each case
was coded for whether the appellate court decision was quashed or up-
held by the Court of Cassation, for the identity (or identities) targeted
by the speech, and for other factors related to the decision.11
The dependent variable in this study is the frequency with which the
Court of Cassation opted to restrict alleged racist hate speech. When
reviewing an appeal of a lower court decision, the Court of Cassation
sided with restricting racist speech when it upheld a lower court convic-
tion or quashed a lower court acquittal; it sided with protecting free speech
when it confirmed a lower court acquittal or quashed a lower court con-
viction. Analyzing the data in this manner reveals whether the Court
of Cassation systematically upheld enforcement of racist hate speech
laws, systematically protected free speech, or struck a balance between
restricting and protecting such speech. In fact, the Court of Cassation
sided with restricting racist speech in 60 of the 103 decisions, or 58 per-
cent of the total. This overall restriction rate provides a baseline against
which different categories of decisions can be measured.
In this article, I focus on the restriction rates in cases involving dif-
ferent types of hate speech targets. The first set involves prototypical vic-
tim groups. These include identity categories perceived as particularly
vulnerable to racism in French society from World War II through to-
day, namely Jews (or analogous targets such as Israel), Muslims, Ar-
abs, North Africans, Algerians, Beurs (young French people of North
African origins or ancestry), Blacks, and Africans. The second set in-
cludes powerful societal groups that have traditionally had stable demo-
graphic and social power within France, such as Catholics, Christians,
Whites, and the national-origin category, French. A third set includes
other groups, which courts have deemed not clearly covered by the law’s
https://doi.org/10.1017/S0043887117000272
protections based on origin, ethnic group, nation, race, or religion (im-

migrants, Harkis, Corsicans, aristocrats, and Jehovah’s Witnesses) or
that have not been consistently central to the French conception of
11
Detailed information about each case can be found in Appendix A of the supplementary mate-
rial; Bleich 2017.
120
58%
100
80
78%
60
40
28%
21%
20
0
Antiminority Antimajority Anti-Other Total
Restrictions Protections
Figure 1
French Court of Cassation Restrictions, Protections, and
Restriction Rate by Type of Speech
marginalized ethnic, racial, national, or religious outsiders since the end

of World War II (Asians, Roma, and Serbs).
Figure 1 conveys the number of decisions associated with each cate-
gory, the number of decisions in which the court sided with speech re-
strictions or protections, and the restriction rate for each category. To
aid comprehension, I use the term minority to stand for prototypical
victim groups and majority to stand for powerful societal groups. The
data show that most hate speech cases brought before the Court of Cas-
sation target minorities, and also that the court was far more likely to
tilt toward restricting antiminority speech than antimajority speech.12
The low restriction rate for the “other” category can largely be at-
tributed to the fact that most decisions revolved around whether the
targeted group was protected by the scope of the law (thirteen cases),
and not whether the offending phrases constituted legally punishable
speech (four cases). So while it serves as a reference point for compar-
ing the restriction rate across types of cases, I don’t undertake a de-
tailed analysis of decisions in this category. I focus instead on explaining
the difference in restriction rates between (prototypical) minorities and
https://doi.org/10.1017/S0043887117000272
(powerful) majorities, where the decisions by the Court of Cassation

turned on whether the speech constituted insult, defamation, or provo-
cation that justified legal restriction.
12
Fisher’s exact test = 1.8E-05; results significant at the p < .001 level.
16
100%
14 85%
58%
12
60%
10
63% 25%
8 86%
6 80% 0%
0%
4
50%
2 100%
0
Antiminority
Antimajority
Antiminority
Antimajority
Antiminority
Antimajority
Antiminority
Antimajority
Antiminority
Antimajority
Antiminority
Antimajority
Antiminority
Antimajority
Antiminority
Antimajority
1972–77 1978–82 1983–87 1988–92 1993–97 1998–2002 2003–07 2008–12
Restrictions (antiminority) Protections (antiminority)
Restrictions (antimajority) Protections (antimajority)
Figure 2
French Court of Cassation Restrictions, Protections, and Restriction
Rate by Type of Speech over Time
Although it is revealing to examine the data taken as a whole, closer

consideration of the cases reveals shifting patterns over time. From
1972 to 1992, the Court of Cassation didn’t review a single antimajor-
ity hate speech case. Between 1993 and 1997, the restriction rate in an-
timajority and antiminority cases was statistically indistinguishable.13
Between 1998 and 2012, antimajority and antiminority restriction rates
diverged sharply due to a sudden drop in high court restrictions in anti-
majority speech cases. Figure 2 illustrates these fluctuations by breaking
down restrictions and protections for each group per five-year period.
Any full explanation of judicial behavior in these cases must take
into account differences in aggregate decision-making and variation
over time. To do this, I analyze patterns across all 103 cases and closely
examine the text of the holdings. I also conducted semistructured in-
https://doi.org/10.1017/S0043887117000272
13
Fisher’s exact = 1; results not significant at the p < .05 level. The variation in the antiminority
speech restriction rate is not statistically significant when comparing the time periods 1972–92, 1993–
97, and 1998–2012 (Freeman-Halton extension of Fisher’s exact = 0.380; results not significant at the
p < .05 level).
terviews with more than two dozen observers or actors involved in the
judicial process in France, including scholars, journalists, antiracist ac-
tivists, instructors of judges, lawyers involved in hate speech cases, pub-
lic prosecutors, and current and former members of tribunals, appellate
courts, and the Court of Cassation.14 Through an agreement signed
with the Service de Documentation, des Études et du Rapport of the
Court of Cassation, I was granted access to internal court documents
such as the rapport (report) prepared by one of the sitting judges respon-
sible for the case, and the avis (recommendation) of the public prose-
cutor appointed to the Court of Cassation by the Ministry of Justice.15
These documents are intended for internal deliberation only and are
not part of the public record. They thus reveal additional information
about individual cases that supplements the discussion in the publicly
recorded Court decision. Taken together, Court of Cassation decisions,
semistructured interviews, and internal deliberative documents permit
a multifaceted understanding of judicial decision-making within the
French high court.
Examining Alternative Theoretical Frameworks

Before turning to the historical institutionalist approach, I explore
whether the outcomes seen in French hate speech cases can be ac-
counted for by alternative perspectives on judicial decision-making. I
examine two prominent theoretical families that may help to explain
French high court holdings about racist hate speech. The attitudinal
model focuses principally on the effect of the left-right political ide-
ology of judges. Strategic institutional perspectives view judges and
courts as situated within an institutional environment that imposes in-
centives and constraints on their decisions.
The attitudinal model devised by Jeffrey A. Segal and Harold J.
Spaeth asserts that the left-right ideologies of judges strongly shape
patterns of decisions.16 Segal and Spaeth’s parsimonious theory was de-
signed to account for United States Supreme Court decisions, but ad-
vocates have sought to apply it more widely.17 It has proved challenging
to test in European settings such as France, where the political ideolo-
14
See Appendix 2 for abbreviated information about interviewees. Appendix B in the supplemen-
https://doi.org/10.1017/S0043887117000272
tary material (Bleich 2017) contains detailed information in the form of an Interview Methods Table
as described in Bleich and Pekkanen 2013.
15
The terms of the agreement prevent me from making these documents public.
16
Segal and Spaeth 1993; Segal and Spaeth 2002.
17
Dyevre 2010, 301–302.
gies of judges are not identifiable and where published decisions are at-
tributed to the court as a whole and the votes of individual judges are
not revealed. These factors preclude the type of quantitative test of the
attitudinal model that is common in the study of judicial behavior in
the United States.
Instead, I pursued several alternative approaches to investigate
whether ideology affected outcomes. I began by examining the insti-
tutional structures for appointing judges. If judges obtained their posi-
tions through a political process of elections or government nomination
and approval, they would likely be selected at least in part because of
their ideology. But French civil and criminal high court judges are ap-
pointed through a bureaucratic process that is largely insulated from
political pressures and that is based on their professional reputation,
suggesting that ideology is less likely to play a systematic role. I then
examined individual judge continuity across time and his or her dispo-
sition to participate in speech-protective or speech-restrictive decisions
with regard to antimajority hate speech cases.
Unfortunately, complete lists of judges aren’t available for these cases.
But each decision between 1993 and 2000 identifies the president of
the panel, who is the most senior judge involved in the case. If certain
presidents oversaw the bulk of speech restrictions between 1993 and
1997, or if there were a sudden change in personnel after 1997 that re-
sulted in blanket protections, this may indicate that the preponderance
of restrictions between 1993 and 1997 and the subsequent decline were
due to individual characteristics of identifiable judges. But as Table 1
illustrates, most judges between 1993 and 2000 presided over decisions
both to protect and to restrict antimajority hate speech.
In addition, I routinely asked interviewees (including judges, pros-
ecutors, lawyers, ngo activists, journalists, and academics) if ideology
had a significant influence on court decisions. Only one respondent—
a person not directly involved in trying cases18—claimed that ideology
routinely affected patterns of judicial decisions. Perhaps most tellingly,
among my interviewees even prosecutors and lawyers, whose profes-
sional success depends upon understanding judges’ motives, didn’t be-
lieve that political ideologies systematically affected court rulings. One
lawyer who works with antiracist ngos, for example, asserted straight-
https://doi.org/10.1017/S0043887117000272
forwardly, “You can’t identify and line up political convictions to ex-
18
Author interview with Bernard Antony, September 29, 2014.
Table 1
Presiding Judge and Direction of Decision in
French Court of Cassation Antimajority Hate Speech Holdings,
by Case Number and Year, 1993–2000
Presiding Judge Decision to Protect Decision to Restrict

Le Gunehec 92-84439 (1993) 91-84653 (1993)
92-81091 (1993) 92-81094 (1993)
Zakine 93-12119 (1995) 93-20663 (1996)
Culie 96-80391 (1997)
Milleville 96-84890 (1998) 94-80064 (1995)
95-85691 (1998) 95-85958 (1998)
96-81655 (1998)
Gomez 98-83461 (1999) 99-80043 (2000)
plain outcomes.”19 Taken as a whole, therefore, the available evidence

suggests that attitudinal model variables don’t play a systemic role in
explaining broader patterns of outcomes in Court of Cassation hate
speech cases.
Strategic-institutional perspectives emphasize that judges and courts
interact with other actors in the judicial or political system.20 These per-
spectives have shown that judges respond to pressures from the legisla-
tive or executive branches of government, and also to public opinion.21
Although French judges admit in interviews that they consider them-
selves citizens embedded in societal discussions about contemporary
issues, neither they nor other actors in the judicial system (lawyers,
prosecutors, legal aid workers, scholars, or journalists) nor internal court
documents indicate that public opinion has influenced judicial decision-
making in this domain. The lack of surveys about hate speech makes it
impossible to test for a correlation between public opinion and Court
of Cassation decisions over time, while also suggesting that there are
no clear signals of public preferences about hate speech enforcement to
which judges can respond.
If political pressure by the executive or legislative branch played a
significant role in shaping outcomes, the results would be most visible
in those cases where Court of Cassation decisions affected voting blocs
https://doi.org/10.1017/S0043887117000272
that supported the party in power, and especially where one party con-
19
Author interview with Matthieu Henon, November 18, 2014.
20
Dyevre 2010, 302–10; Epstein and Knight 2000.
21
Dyevre 2010, 304–10.
Table 2
Restriction Rate Based on Party in Power and Type of Hate Speech
Antimajority Speech Antiminority Speech
a
Left-party power 100% 81%
(n = 1) (n = 16)
Right-party powerb 18% 70%
(n = 11) (n = 23)
Divided power c 31% 84%
(n = 13) (n = 25)
a
1981–86; 1988–93; 2012.
b
1972–81; 1995–97; 2002–12.
c
1986–88; 1993–95; 1997–2002; 2012.
trolled both branches of government. Because mainstream right parties

frequently compete with far right parties for conservative voters and
draw fewer minority supporters, these mainstream parties would ben-
efit from the restriction of antimajority speech. Conversely, left parties
would benefit from the restriction of antiminority speech, since minor-
ities and human-rights-association sympathizers are more tradition-
ally left voters. Although the low number of antimajority speech cases
during left-party power limits our ability to make robust comparisons
across all sets of cells, Table 2 shows that the court isn’t more prone to
restrict antimajority speech when the right is in power, nor does it dis-
proportionately restrict antiminority speech when the left is in power.22
The party in power thus has no clear relationship to Court of Cassation
rulings in hate speech cases.
This review of alternative perspectives on judicial decision-making
reveals that neither the attitudinal model nor strategic-institutional ap-
proaches can account for patterns of outcomes in these cases. There
may be causal elements from these theoretical approaches that play
a role in individual cases. But the existing evidence shows that these
schools of thought don’t provide a compelling explanation of either the
divergent restriction rates across target groups or the shifting rate of re-
striction over time for antimajority speech.
https://doi.org/10.1017/S0043887117000272
22
Statistical tests show that the restriction rate for antimajority speech does not differ significantly
between right-party power and divided power (Fisher’s exact = 0.649; results not significant at the p < .05
level). In addition, antiminority restriction rates do not differ significantly when comparing left- party
power to right-party power, left-party power to divided power, or right-party power to divided power
(Fisher’s exact = 0.480, 1, and 0.311, respectively; results not significant at the p < .05 level).
Historical Institutionalism and Ideational

Salience Amplification
Historical institutionalism within the law and courts field emerged
from the new institutionalism of the 1980s.23 One distinctive element
of this theoretical family has been a focus on how ideas shape out-
comes.24 Ideas-oriented legal scholars have variously emphasized no-
tions about the proper role of courts in society,25 judicial attitudes and
professional role conceptions,26 legal knowledge and philosophies,27
and institutionally rooted normative principles.28 Overall, historical
institutionalist research has primarily focused on ideas specific to the
judiciary.29 These are widely shared (though not universally applied)
norms such as judicial restraint, independence, impartiality, autonomy,
nonpartisanship, supremacy, procedural justice, stare decisis or juris-
prudence constante, conforming to statute, and consistency or harmoni-
zation of decisions across jurisdictions.30 Although the constraints can
vary, scholars in this school of thought emphasize the abiding influence
they can have on judges who are imbued with a legal state of mind or
a sense of mission.31
Historical institutionalist studies of judicial decision-making have
drawn attention to how ideas can influence outcomes, but these studies
also have limitations. In particular, they have rarely integrated key in-
sights derived from recent theorizing about institutional change. This
second strand of historical institutionalist theorizing has developed
concepts such as intercurrence, displacement, conversion, layering, and
drift.32 While this literature has shown the value of applying such con-
cepts to transformations in societal institutional structures and in pat-
terns of policy-making, it has itself been criticized for paying relatively
little attention to how ideas influence outcomes, especially in recent
years.33
The framework developed here capitalizes on the distinctive strengths
of these two strands of historical institutionalism. From the judicial de-
23
Smith 1988; Clayton and Gillman 1999; Whittington 2000.
24
Smith 2008, 52–7; Brandwein 2011.
25
Ingram 2012.
26
Hilbink 2012.
27
González Ocantos 2014.
https://doi.org/10.1017/S0043887117000272
28
Keck 2007, 334.
29
Feldman 2005.
30
Edwards 2006; Epstein, Landes, and Posner 2013, 192; Fon and Parisi 2006; Stone Sweet 2000,
28; Smith 2008, 52; Richards and Kritzer 2002.
31
Gillman 2001, 485–96; Keck 2007; Brandwein 2011, 190.
32
Hacker 2004; Conran and Thelen 2016.
33
Blyth, Helgadottir, and Kring 2016.
cision-making strand, I highlight the role of ideas; from the institu-

tional change strand, I identify mechanisms that can affect patterns
of outcomes. I begin with the institutionalist observation that formal
rules explicitly authorize certain actors to operate within the judicial
field, and also empower subsets of actors within a particular issue area.
For example, French institutions define the Court of Cassation as the
final arbiter for criminal and civil cases, and they also grant antiracist
associations, specialized prosecutors, and specialized judges additional
responsibilities in hate speech cases. When these actors within the judi-
cial field share widely distributed, highly salient, and stable sets of ideas,
such ideas are especially likely to affect patterns of court holdings and to
encourage continuity across time. Below, I show that this pattern oper-
ated in the first time period in France, where the prevailing understand-
ing of classic antiracism and the norm of harmonizing decision-making
based on existing jurisprudence fostered high levels of Court of Cassa-
tion restrictions in antiminority hate speech cases.
Yet, institutions also create opportunities for the unanticipated en-
try of new actors, and thus the potential for change. In some cases,
emergent actors can strategically exploit existing institutional provi-
sions to gain entry into a system. Historical institutionalists have iden-
tified “conversion” as a process whereby the “rules on the books remain
the same but are interpreted and enacted in new ways.”34 Ideational
scholars have long demonstrated that when new actors enter the field,
they frequently struggle to enforce the supremacy of their distinct ideas
through power or persuasion.35 But there is another pathway through
which ideas can help explain change over time. Powerful actors within
a field are typically imbued with a wide range of ideas that can shape
their approaches to decision-making. I conceptualize these as overlap-
ping distributions of ideas across relevant actors, with each idea hav-
ing a potentially variable salience in any given time period. Rather than
having to replace one set of established ideas with an alternative para-
digm, emergent actors may simply amplify the salience of certain ideas
that already exist within the judicial field.
Through this process, new actors may effectively decrease the prom-
inence of ideas that had previously carried greater weight in deci-
sion-making processes, thereby shifting the balance of outcomes in a
https://doi.org/10.1017/S0043887117000272
direction they prefer. This pattern describes the entry of the far-right
legal group agrif in the mid-1990s and its effort to amplify the sa-
Conran and Thelen 2016, 65.
34
Hall 1993; Blyth 2002; Lieberman 2002; Parsons 2003; Mandelkern and Shalev 2010; Schmidt
35
2010; Béland and Cox 2010.

lience of judicial neutrality, a preexisting but latent norm that inher-

ently favored restrictions on antimajority speech. Activating the norm
of judicial neutrality decreased the relative salience of classic antiracism
beliefs, and encouraged a similar restriction rate for antimajority and
antiminority speech.
As theorists of institutional change have noted, institutional rules
may offer multiple points of entry for new actors. In Karen Orren
and Stephen Skowronek’s terms,36 “intercurrence” describes a process
whereby instability at one institutional level can disrupt established
patterns at another level. Although intercurrence has paradigmatically
been applied to explain macrohistorical processes, it may also operate at
mezzo- and microlevels of analysis. For example, shifting rules in inter-
national or supranational courts can have strong effects within member
countries.37 A late-1990s restructuring of European Court of Human
Rights institutions and rules facilitated European citizens’ access to that
court. In effect, it introduced a new actor into the French system by al-
lowing convicted speakers to go over the head of the Court of Cassa-
tion in freedom of expression cases. Although the European Court of
Human Rights doesn’t have the power to overturn national-level rul-
ings, it can find that domestic rulings have violated the European Con-
vention on Human Rights. Doing so puts pressure on national courts
to align their rulings with European-level decisions.
This new situation thus amplified the salience of harmonizing ju-
risprudence between the French and European levels. Although the
rule changes had nothing to do with hate speech, subsequent Euro-
pean court decisions in this issue area also sent a signal to French courts
about the types of speech that could be restricted. The ecthr has largely
upheld penalties on antiminority speech while overturning antimajority
speech convictions. This decreased the importance of judicial neutral-
ity as a norm within the French judicial field and increased the salience
of the classic antiracism belief that antiminority hate speech deserves
more restriction than antimajority speech. As a result, the restriction
rate for antimajority speech was driven down from the late 1990s on.
The following sections support these claims by examining the inter-
action of ideas, institutions, and actors in the French judicial field across
three time periods from 1972 to 2012. I use process-tracing methods
https://doi.org/10.1017/S0043887117000272
that enable a close focus on causal mechanisms.38 The central goal is to

identify the dynamic interaction among ideas, institutions, and actors
36
Orren and Skowronek 1996.
37
Keller and Stone Sweet 2008.
38
Hall 2003; Bennett and Checkel 2014.
in a way that not only accounts for outcomes in these cases, but that also
exemplifies how the framework contributes to a broader understanding
of judicial decision-making and historical institutionalism.
Early Antiracism and the Rise of the National
Front, 1972–92
The first two decades of Court of Cassation hate speech enforcement
were marked by two distinct outcomes. The court exclusively heard
cases involving antiminority speech, and it tilted toward speech restric-
tions a strikingly high 81 percent of the time. Its focus on antiminority
hate speech is best explained by the institutional empowerment of anti-
racist associations, and by the highly salient and stable classic antiracism
beliefs that were widespread among all key actors in this time period.
The elevated restriction rate is best explained by the framing of hate
speech provisions in keeping with analogous prohibitions on nonracist
insult, defamation, and provocation, which encouraged the application
of existing jurisprudential norms that permitted speech restrictions.
France’s 1972 antiracism law penalized racist insult, defamation, and
provocation, but it also contained a signal institutional innovation. It
permitted any antiracist association that had existed for five years prior
to the time of an incident to initiate a hate speech case without the ap-
proval of public prosecutors. Empowering civil society groups to launch
criminal cases wasn’t a widely established practice in France in the 1970s,
even though the possibility of private prosecutions had long existed in
a number of countries.39 Antiracist associations sought this status be-
cause they believed that public officials weren’t sufficiently concerned
about racist hate speech and probably wouldn’t aggressively pursue cases
under the new law. In fact, of the 103 cases between 1972 and 2012,
antiracist groups participated in seventy-four Court of Cassation hear-
ings, whereas public prosecutors were only involved in twenty-three.
Institutionally recognized antiracist associations thus played a central
role in determining the number and type of cases that reached the high
court.
The stable beliefs of these antiracist associations help to explain the
absence of antimajority cases during the initial two decades of the law.
The four most active groups40 in the postwar decades embodied clas-
https://doi.org/10.1017/S0043887117000272
Michel and Sikkink 2013, 879–82.

39
The licra (Ligue International contre le Racisme et l’Antisémitisme, or the International League
40
against Racism and Anti-Semitism), the Ligue des Droits de l’Homme (Human Rights League), the
mrap, and sos-Racisme (sos-Racism).
sic antiracism ideas, focusing on racism directed at prototypical minor-

ities such as Jews, Arabs, Muslims, and Blacks. When lobbying for the
law prior to its passage, for example, the Movement against Racism and
for Friendship among Peoples (Mouvement contre le Racisme et pour
l’Amitié entre les Peuples, or mrap) decried anti-Semitic statements in
the post-Holocaust era and the stigmatization of new migrants such as
North Africans, Algerians, Black Africans, Blacks, or Muslims.41
Antiracist associations were not the only groups that believed anti-
minority racism was a primary concern. Political leaders were motivated
to pass the 1972 antiracism law following France’s 1971 ratification of
the International Convention on the Elimination of All Forms of Ra-
cial Discrimination.42 This document expressed global alarm at govern-
ment policies aimed at minorities that were “based on racial superiority
or hatred, such as policies of apartheid, segregation or separation” and
their effect on equality, human rights, and fundamental freedoms.43
The far-right National Front’s breakthrough in the mid-1980s
heightened mainstream politicians’ concerns about antiminority racism
and xenophobia. Party leader Jean-Marie Le Pen’s 1987 claim that the
Nazi gas chambers were merely a “detail” of the history of World War II
led to the passage of a 1990 antiracism law banning contestation of the
Holocaust.44 Judicial officials also focused exclusively on antiminority
speech. Between 1972 and 1992, public prosecutors pursued five hate
speech acquittals to the Court of Cassation. Four of the cases involved
antiminority speech (the fifth involved speech in the “other” category,
none was an antimajority case), and the Court of Cassation sided with
prosecutorial efforts to restrict antiminority hate speech in three of the
five cases by quashing lower court acquittals.
Even if the court exclusively reviewed antiminority speech cases, why
did it uphold restrictions 81 percent of the time when it could have
just as easily tilted toward protecting controversial speech? The hate
speech provisions of the 1972 law were constituted as subcategories
of generic infractions of insult, defamation, and provocation. Courts
were thus able to draw on their experience of enforcing these paral-
lel violations. Court of Cassation standard operating procedures call
for reviewing relevant jurisprudence when considering new cases. Be-
https://doi.org/10.1017/S0043887117000272
41
mrap 1984.
42
Author interview with Alain Terrenoire, the elected member (député) responsible for shepherd-
ing the law through the National Assembly, April 5, 1997.
43
icerd (International Convention on the Elimination of All Forms of Racial Discrimination),
December 21, 1965, preamble.
44
On the passage of the 1990 antiracism law, see Bleich 2003, chap. 6.
fore deliberations, one participating judge prepares a report and the

advocate general, appointed by the Ministry of Justice, submits a rec-
ommendation that summarizes existing jurisprudence applicable to the
case at hand. Jurisprudence thus systematically and predictably enters
into each Court of Cassation deliberation.
To provide a baseline for the court’s propensity to restrict conten-
tious speech prior to passage of hate speech provisions, I examined all
seventeen cases of nonracial defamation and insult from 1972 and the
three cases of nonracial provocation between 1964 and 1971 (provo-
cation is a rarer infraction; there were no cases in 1972). Out of the
twenty total cases, the Court of Cassation sided with speech restrictions
in eleven cases, and speech protections in nine. There was thus estab-
lished jurisprudence that permitted speech restrictions for nonracial in-
sult, defamation, and provocation. Between 1972 and 1992, therefore,
restricting contentious speech was not unusual for the Court of Cas-
sation, and punishing racist speech may have seemed particularly ap-
propriate given prevailing classic antiracism beliefs and the passage of a
specific law to penalize hate speech.
In sum, institutional rules embedded in the 1972 law empowered
antiracist associations to bring cases to court even when public prose-
cutors lacked the time or the resources to do so. By harmonizing hate
speech infractions with preexisting provisions against insult, defama-
tion, and provocation, these rules also triggered Court of Cassation
standard operating procedures of examining hate speech cases in light
of existing jurisprudence where speech-restrictive rulings were relatively
common. Moreover, all the key actors in this era—antiracist groups,
politicians, prosecutors, and judges—shared the classic antiracist be-
lief that countering hate speech meant protecting vulnerable minorities
and, especially with the rise of the National Front in the mid-1980s,
that such hate speech was a salient societal problem. The combination
of institutional rules that empowered new actors; norms of harmoniz-
ing decisions with existing jurisprudence; and widespread, salient, and
stable classic antiracism beliefs accounts for the absence of antimajority
cases and the high restriction rate in antiminority cases during this time
period.
The Entry of a Far-Right “Antiracist” Association, 1993–97
https://doi.org/10.1017/S0043887117000272
Between 1993 and 1997, the Court of Cassation ruled on its first eight
antimajority hate speech cases. It tilted toward speech restrictions in
five cases, or 63 percent of the time (statistically indistinguishable from
the 60 percent rate in antiminority cases and the 61 percent overall rate
in this time period). What factors introduced this type of case into a
system established to counter antiminority speech? And why were these
appeals so successful?
The antiracism law of 1972 was intended to oppose incidents of clas-
sic racism, but it was crafted in race-neutral terms. In 1984, a National
Front European Member of Parliament strategically exploited this fact
by founding an “antiracist” association, the agrif, designed to pursue
cases of antimajority speech. The agrif’s account of its origins criticized
traditional antiracist groups for participating in cases of hate speech tar-
geting “ethnicities, immigrants, North Africans, Israel,” but not those
involving “anti-French” or “anti-Christian” acts.45 The agrif thereby
“situated itself in conformity with the letter of the 1972 law” to oppose
what it characterized as the “innumerable” examples of anti-French and
anti-Christian racism.46 This is a prototypical case of institutional con-
version through which actors repurpose existing institutions in unfore-
seen ways to further their goals.
French courts initially kept the new group at arm’s length, using
the law’s requirement that an association be established for five years
before it could bring a case. After the waiting period, norms of ju-
dicial neutrality and classic antiracism came into direct conflict. The
agrif’s strategy involved amplifying its appeals to judicial neutrality to
undermine the salience of classic antiracism as a dominant norm among
judicial actors. The group wasn’t immediately successful: a Paris tribu-
nal refused to recognize its standing when the five-year waiting period
was over in 1989. The court articulated a classic antiracist rationale
by asserting that the association’s “essential intention was not to fight
racism.”47
The agrif pursued its case for recognition, obtaining a favorable rul-
ing in the Paris appellate court in 1990 that subsequently went to the
Court of Cassation for a final decision. In 1991, the high court was con-
fronted with the argument that the agrif did not truly intend to fight
racism, and that its stated focus on “anti-French and anti-Christian rac-
ism” revealed “an attitude in total contradiction to its pretended stated
objectives.”48 Instead of following this classic antiracism logic, the court
was swayed by the agrif’s arguments that it had declared its objective
of fighting racism in 1984, that it had waited the requisite five-year pe-
https://doi.org/10.1017/S0043887117000272
riod, and that the race-neutral text of the 1972 law “extends to all dis-
45
Montmirail 2009, 21.
46
47
Cited in Montmirail 2009, 57.
48
Court of Cassation decision 90-87508 of April 16, 1991.
crimination founded on the origin or belonging or non-belonging to a

race, an ethnicity, a nation, or a religion, without restriction or exclu-
sion” and thus that anti-French and anti-Christian hate speech con-
stituted “punishable racism.”49 Principles of neutrality trumped classic
antiracism beliefs.
Once it had obtained official recognition, the agrif acted vigorously
to bring cases. Even though the Court of Cassation had recognized the
group’s standing in 1991, it wasn’t clear how the court would rule on
the substance of antimajority hate speech claims. Lower courts had not
only refused to recognize the agrif, at times they had also denied that
antimajority hate speech was a punishable act. Given that the Court of
Cassation grants a full hearing only in cases where there is legal ambi-
guity, the court had wide latitude to decline to restrict antimajority hate
speech in virtually any individual case. Why did it so often side with re-
stricting antimajority speech in this time period? The agrif succeeded
primarily by amplifying the salience of the norms of judicial neutrality
and of harmonization with existing jurisprudence.
To understand the influence of judicial neutrality and the harmo-
nization of jurisprudence, it is helpful to examine specific cases. The
first agrif appeal reviewed by the Court of Cassation involved an as-
sertion in the Figaro newspaper by Jewish Franco-Polish intellectual
Marek Halter that the “Churches of the East . . . had not gone through
the work of reflection that took place here [in the West] in the after-
math of Nazism, nor Vatican II, nor John XXIII. They are Churches
that are archaic, xenophobic, often racist and anti-Semitic.”50 The agrif
took Halter and the Figaro to court, claiming that these statements
defamed Catholics. The tribunal initially dismissed the claim on the
grounds that the agrif did not qualify as an antiracist association with
the standing to bring such cases.51 The appellate court subsequently
recognized the agrif’s standing, but acquitted Halter and the Figaro,
ruling that the statements were indeed defamatory but targeted only
“geographically localized institutions and not the whole of the Catholic
community”—in other words, churches in specific countries in a spe-
cific time period rather than Catholics as a group.52
The agrif appealed to the Court of Cassation. The court heard the
case within two years of explicitly recognizing that the race-neutral text
https://doi.org/10.1017/S0043887117000272
of the 1972 law made anti-Christian hate speech illegal. During the
49
Court of Cassation decisions 90-87508 and 90-87509 of April 16, 1991.
50
Court of Cassation decision 91-84653 of March 2, 1993.
51
52
proceedings, the agrif also evoked a 1991 court finding that speech
accusing American Jews of exploiting the Holocaust defamed Jews in
general.53 If targeting a “geographically localized” portion of the Jewish
community resulted in a conviction, the agrif argued, judicial neutrality
and harmonization of jurisprudence required that the same legal logic
should apply to speech targeting a portion of the Catholic community.
In March 1993, the court overturned the Paris appellate court ac-
quittal of Halter and the Figaro, ruling that, “in this case, the Chris-
tian communities of the countries of the East were targeted . . . because
of their Catholic allegiance and the behavior attributed to their mem-
bers.”54 The court cited two prior rulings in its decision: the April 1991
case recognizing the agrif’s standing and the October 1991 ruling up-
holding the conviction for hate speech targeting American Jews.55 It re-
manded the case to the appellate court of Orléans for a retrial, and that
court convicted Halter and the Figaro of defamation. Halter and the
Figaro subsequently appealed the Orléans appellate court’s ruling to the
Court of Cassation, which ultimately upheld the conviction in 1995.56
During this time period, the court also sided with the agrif in cases
involving speech targeting the Carmelites of Auschwitz, a cartoon de-
picting the Pope being sodomized, and a Charlie Hebdo cartoon of an-
tiabortion activists defecating and urinating in a church.57 In interviews
conducted in 2015, two magistrates involved in hate speech cases dur-
ing the mid-1990s admitted that each of these rulings was a close call,
and that judicial actors were especially influenced by a desire to seem
neutral when confronted with this new type of claim. The magistrates
described these high court decisions as “soft” or “small” quashings, sig-
nifying that the court was issuing tentative rulings rather than taking
a strong stand against antimajority hate speech. And they admitted
that these cases wouldn’t result in speech restrictions today. With re-
spect to the Charlie Hebdo cartoon, one magistrate recalled, “We were
embarrassed to quash the acquittal.”58 When asked to elaborate on the
court’s rulings, he noted that judges were much more accustomed to
traditional antiracist associations that brought cases of speech targeting
“Jews, Muslims, and North Africans.” Another magistrate from that
era cited the fear of being accused of applying a double standard if the
https://doi.org/10.1017/S0043887117000272
53
54
55
56
Court of Cassation decision 94-80064 of October 3, 1995.
57
Court of Cassation decisions 92-81094 of December 7, 1993; 93-20663 of February 28, 1996;
and 96-80391 of October 21, 1997.
58
Confidential interview, June 9, 2015.
court dismissed anti-Catholic hate speech complaints. “Prudence” was

the watchword of the era, he suggested, so Court of Cassation decisions
often focused on side issues rather than fully endorsing the notion that
antimajority speech was illegal hate speech. As one magistrate from the
mid-1990s summarized the situation, “We were careful to seem neu-
tral, but it was awkward.”59
As stated above, the institutional structure of the 1972 law permit-
ted any declared antiracist association to bring cases as long as it had ex-
isted for at least five years prior to the alleged infraction. When the law
was passed, no one anticipated that a far right association would engage
in a process of institutional conversion to launch antimajority speech
cases. The agrif did just that, bringing the first cases of “anti-French
and anti-Christian” hate speech to the Court of Cassation. The agrif
stressed norms of judicial neutrality coupled with references to prece-
dents established in antiminority hate speech cases. By amplifying the
salience of judicial neutrality, it offset the effect of the classic antiracism
belief. In sum, institutional rules enabled strategic action by a new actor
that drew on the text of the law and existing jurisprudence to heighten
the salience of the norm of judicial neutrality in order to win victories
in antimajority hate speech cases.
European Court of Human Rights Oversight, 1998–2012
The success of the agrif and the restriction of antimajority hate speech
didn’t last long. Between 1998 and 2012, the court upheld curbs in an-
timajority speech cases only twice in seventeen opportunities, for a re-
striction rate of 12 percent. That steep drop can be attributed primarily
to the increased influence of a new actor that entered the French ju-
dicial field through a process of institutional intercurrence. This de-
velopment decreased the salience of the judicial neutrality norm and
reamplified classic antiracism as an approach that again became stable
and widespread among French judges.
The ecthr was established in Strasbourg in the 1950s to rule on al-
leged violations of the European Convention on Human Rights. Al-
though it had been possible for individuals convicted of hate speech
infractions to appeal to the ecthr based on the Convention’s Article 10
protections for freedom of expression, no party in the forty-one sub-
https://doi.org/10.1017/S0043887117000272
stantive Court of Cassation hate speech cases prior to 1998 had done
so.60 Then, between 1998 and 2000, two changes greatly increased the
59
In the handful of Court of Cassation technical cases in that time frame that referenced European
60
protections, the high court simply declared that French provisions clearly conformed to European
Convention standards. See, for example, Court of Cassation decision 92-83890 of October 9, 1995.
influence of the ecthr. In 1998, a major institutional reform eliminated

the European Commission on Human Rights, an agency that served to
filter out inadmissible complaints before they reached the ecthr, and all
member states were required to allow individuals to bring claims to the
European court. These steps more than tripled the number of applica-
tions to the court between 1998 and 2002, even controlling for grow-
ing state membership.61 In addition, France reinforced the power of the
ecthr through a June 2000 law that allowed French judges to revisit
their decisions when the European court found a serious rights vio-
lation, and empowered the ecthr to grant fair compensation if the
French state did not resolve the harm.62
These developments were a form of institutional intercurrence that
reduced the autonomy of the Court of Cassation. The greater impor-
tance of the ecthr was not intended to affect French decision-making
patterns with regard to matters of freedom of expression in general, or
with specific respect to hate speech cases. But after 1998, the shadow
of the European court loomed large in both types of rulings, increas-
ing the pressure on the French judiciary to harmonize its decisions with
European ones. At the broadest level, the ecthr protected freedom of
expression more than French courts traditionally did. It signaled this
clearly by finding France in violation of European Convention stan-
dards on free speech in three holdings between 1998 and 2000.63 Eight
out of ten French judges interviewed asserted that the ecthr had a siz-
able influence on how French courts dealt with general freedom of ex-
pression cases. One summarized the attention paid to the ecthr as the
“daily bread” of French judges.64 Another asserted that French judges
restrict speech “less and less often” because they “have to respect the
European Court of Human Rights, and it is for freedoms.”65 A sit-
ting Court of Cassation judge dated the transition in French judicial
attention to the ecthr to the late 1990s and early 2000s, stating, “We
thought we had our laws and freedoms worked out—then we lost [in
the European Court of Human Rights] in Strasbourg,” and had to sup-
port free speech more than before.66
The entry of the European Court of Human Rights as a significant
actor marked an important turning point. Given the far greater signifi-
https://doi.org/10.1017/S0043887117000272
61
Cichowski 2006, 58–9.
62
Law no. 2000-516, June 15, 2000.
63
Lehideux et Isorni c. France (1998); Fressoz et Roire c. France (1999); Du Roy et Malaurie c. France
(2000).
64
65
Author interview with Fabienne Siredey-Garnier, June 8, 2015.
66
Author interview with Jean-Yves Monfort, February 17, 2015.
cance of the ecthr, it’s not surprising that thirty-three of the sixty-two
hate speech cases heard by the French Court of Cassation from 1998 to
2012 invoked the European Convention’s Article 10 free speech pro-
tections. But it was not immediately obvious how the European court’s
greater preference for freedom of expression would affect hate speech
cases. In fact, since 1998 the ecthr has reflected classic antiracism ideas
in this domain, carving out an exception to its speech-protective ten-
dencies. It has routinely upheld restrictions on hate speech that targets
minorities, and it has done so at a far greater rate than with respect to
speech targeting majorities.67 Among the six major French hate speech
cases heard since 1998, the ecthr sustained convictions in all five anti-
minority cases, but opposed the sole restriction on antimajority speech.
This pattern also holds beyond French cases in that time period, as the
court upheld convictions in thirteen of thirteen antiminority speech
cases, but found states violated Article 10 protections for freedom of ex-
pression in seven of nine antimajority cases (see Appendix 3).
Two French cases from the mid-2000s reflect the European court’s
classic antiracism approach to hate speech. In 2003, the ecthr found
inadmissible Roger Garaudy’s appeal of his conviction for Holocaust
denial. It argued forcefully that his speech constituted “one of the most
serious forms of racial defamation of Jews and of incitement to ha-
tred of them,”68 even though Holocaust denial laws don’t exist in many
Council of Europe states. In 2006, by contrast, the ecthr unanimously
overturned France’s conviction of Paul Giniewski for anti-Christian
defamation. It ruled that France failed to prove that restricting Giniew-
ski’s statements was “necessary in a democratic society,” and stated that
“his conviction on a charge of public defamation towards the Christian
community did not meet a ‘pressing social need’” given the circum-
stances of the case.69 This overarching pattern of decisions sent a strong
signal to French Court of Cassation judges to harmonize their deci-
sions with European-level jurisprudence animated by classic antiracism
norms. Reflecting on this dynamic, one French judge said, “Look also
at the Strasbourg court’s antiracism philosophy—they are classic anti-
racists, too. They signal to France what is acceptable; some racism can
be repressed, other types not.”70
https://doi.org/10.1017/S0043887117000272
67
Prior to 1998, European Court of Human Rights rulings were more balanced in their restrictions
of antiminority and antimajority speech. See, for example, Glimmerveen and Hagenbeek v. the Nether-
lands (1979); Jersild v. Denmark (1994), para. 32; Otto-Preminger-Institut v. Austria (1994); and Wing-
rove v. the United Kingdom (1996).
68
Garaudy v. France (2003), p. 29.
69
Giniewski v. France (2006), para. 53.
70
Author interview with Monfort, February 17, 2015.
The post-1998 ecthr decisions therefore helped undercut the sa-

lience of the norm of judicial neutrality within France. Classic antira-
cism reemerged as the dominant idea guiding large numbers of judicial
actors in the 2000s and 2010s. Out of fifteen interviews in the mid-
2010s with French lawyers, prosecutors, and judges involved in hate
speech cases, there was unanimity (with the exception of the agrif chief
counsel) that antiminority speech was a far more pressing problem than
antimajority speech. All three agrif actors interviewed complained vo-
ciferously of the “objective discrimination” of the French courts and the
pervasiveness of what they derogatorily called the “human rightist” val-
ues that define racism only in an antiminority way.71 One high-placed
French judge admitted that the agrif’s argument was “admissible,” sug-
gesting that the classic antiracist belief that antimajority speech isn’t a
serious societal problem is widespread, highly salient, and stable among
the majority of French judicial actors.72
The dramatic drop in the antimajority hate speech restriction rate is
thus explained most centrally by the intercurrence of developments at
the European level. These developments encouraged the French Court
of Cassation to harmonize its decisions with those of the European
Court of Human Rights. ecthr holdings signaled the increased salience
of classic antiracism ideas and decreased the importance of the norm of
strict judicial neutrality. Institutional structures thus opened space for
the entry of a new actor that shifted the relative salience of preexisting
ideas within the French judicial field. These shifts encouraged a high
restriction rate for antiminority hate speech and a low one for antima-
jority speech.
Conclusions
The analytical framework developed in this article builds on existing
strands of historical institutionalist scholarship that focus on judicial
decision-making and institutional change. It identifies patterns of in-
teractions between ideas, institutions, and actors that help to explain
the variation in French Court of Cassation restriction rates across hate
speech targets and over time. The framework begins with the premise
that institutions empower actors who hold ideas. It demonstrates that
https://doi.org/10.1017/S0043887117000272
when actors hold sets of ideas that are widely distributed, highly salient,
71
Author interviews with Antony, September 29, 2014; with Jérôme Triomphe, December 24,
2014; and with Vivien Hoch, June 9, 2015.
72
Author interview with Monfort, February 17, 2015.
and stable, those ideas can influence decisions in an issue area and en-
courage continuities in outcomes. However, institutions also provide
opportunities for new actors to enter the field, through processes such
as conversion and intercurrence. To change patterns of decisions, these
actors don’t have to replace preexisting sets of ideas with substantially
different ones. Rather, they can alter outcomes by amplifying the sa-
lience of latent ideas that already exist within the judicial field.
There is an elective affinity between the analytical framework devel-
oped here and the field of judicial politics. In most cases, judicial de-
cision-making involves relatively small groups of actors empowered to
use their judgment based on principles rather than large groups of ac-
tors who are subject to wide-ranging political pressures. This is espe-
cially true in focused domains dominated by the judicial equivalent of
epistemic communities, such as during the early years of French high
court decisions on hate speech. But institutional rules also permit ide-
ational salience amplification in a wider array of settings. Scholars such
as Ezequiel González Ocantos and Lisa Hilbink have demonstrated
that ngos or judicial training facilities can play a critical role in de-
veloping ideas that reshape consequential outcomes in areas such as
convictions for human rights violations or judicial activism.73 Histor-
ical institutionalist students of judicial decision-making are thus well
placed to identify systematic propositions about the circumstances
under which institutions allow for the entry of actors who shift the
relative salience of ideas within a particular field, as well as the circum-
stances under which these efforts succeed in altering patterns of judicial
decisions.
Ideational salience amplification may also constitute a path through
which ideas influence outcomes in broader political realms. This won’t
always be the case, as Desmond King and Rogers Smith have shown
that processes of large-scale societal change often include elements that
aren’t as common in the domain of law and courts—such as building
advocacy coalitions, mobilizing mass support, and developing cultural
images.74 Tasks like these may involve actors who “exchange old ideas
for new ones,”75 or require the identification of distinct sets of ideas that
shape divergent outcomes across country or time.76
Yet because ideational salience amplification is less costly than ide-
https://doi.org/10.1017/S0043887117000272
ational replacement, it may be more common than is currently recog-

73
González Ocantos 2014; Hilbink 2012.
74
King and Smith 2014.
75
Berman 2001, 233; Hall 1993.
76
Bleich 2003; Blyth 2002.
nized by institutionally oriented students of ideas and politics. Ideational

salience amplification shares affinities with concepts developed by so-
cial movement theorists, such as frame amplification and value ampli-
fication, which focus on the goal-oriented “identification, idealization,
and elevation of one or more values presumed basic to prospective con-
stituents.”77 In addition, even King and Smith identify the strategic am-
plification of the preexisting norm of color blindness by conservatives as
a key factor that has contributed to prevailing political ideas about race
in the United States.78
Finally, developing frameworks that emphasize the role of ideas can
also contribute to scholarship on institutional change itself. Many his-
torical institutionalists have concentrated on macrohistorical devel-
opments involving large numbers of actors over long periods of time,
where widely shared ideas may be relatively rare. But for researchers in-
terested in the mezzolevel of a policy domain or the microlevel of a spe-
cific issue, shared sets of norms or beliefs may be more common. As the
analytical framework advanced here suggests, it’s likely that these ex-
isting ideas contain latent tensions that can at times be exploited or af-
fected by actors. In French hate speech cases, the agrif functioned as an
“opportunist” group that engaged in endogenous change through con-
version79 by increasing the salience of the judicial neutrality norm. The
exogenous intercurrence of the European Court of Human Rights en-
couraged the French high court to reactivate the salience of classic an-
tiracism beliefs. By demonstrating how new actors can shift the salience
of ideas that influence patterns of outcomes over time, it is possible to
identify specific mechanisms that help integrate ideas more firmly into
propositions about institutional change. Pinpointing how ideas, insti-
tutions, and actors interact to affect judicial outcomes can thus con-
tribute not only to a deeper understanding of judicial decision-making,
but also to broader propositions about historical institutionalism itself.
https://doi.org/10.1017/S0043887117000272
77
Snow et al. 1986, 469; see also Béland 2009, 705–707.
78
King and Smith 2014.
79
Mahoney and Thelen 2010a, 26–7.
Appendix 1
Case Identification
Relevant cases were assembled through a series of searches of the da-
tabase Légifrance, the official website for French judicial decisions. A
first-round search used terms aligned with the six possible ways to pros-
ecute hate speech law in France (the keyword + the source in the writ-
ten law):
1. Public racial injury: “injure” + “article 33 loi 1881”
2. Nonpublic racial injury: “injure” + “R624-4 ”
3. Public racial defamation: “diffamation” + “article 32 loi 1881”
4. Nonpublic racial defamation: “diffamation” + “R624-3”
5. Public provocation to racial hatred: “provocation” + “article 24 loi 1881”
6. Nonpublic provocation to racial hatred: “provocation” + “R625-7 ”
This process identified 802 cases. Each case was then examined to de-
termine whether it concerned specifically racial defamation, injury, or
provocation. To ensure that all relevant cases were included, a second
round of searches was conducted using more general terms, such as “in-
jure raciale,” “diffamation raciale,” and “provocation à la haine.”
In total, this method identified 256 cases concerning racist hate
speech. Of these, 153 cases were based on procedural or technical con-
siderations. Each of the remaining 103 substantive decisions was read
and analyzed by the author and an additional researcher to identify the
outcome, the judicial reasoning, the speech in question, and the vic-
tim group.
Appendix 2
Summary of Interviewsa
Category 1: Antiracist Association Members
licra activist Charlotte Lefranc, 9/26/14, 11/17/14, 6/23/15, 9/5/15
agrif president Bernard Antony, 9/29/14
agrif communications director Vivien Hoch, 6/9/15
Ligue des Droits de l’Homme legal affairs director Isabelle Denise,
10/13/14, 6/23/15
https://doi.org/10.1017/S0043887117000272
Category 2: Judges
Court of Cassation judge Jean-Yves Monfort, 11/18/14, 12/16/14,
2/17/15
Court of Cassation former judge and Constitutional Council member

Guy Canivet, 11/18/14
Former Council of State member Olivier Dutheillet de Lamothe,
12/16/14
Paris Press Tribunal presiding judge Fabienne Siredey-Garnier, 6/8/15
Paris Press Tribunal former presiding judge Marc Bailly, 5/18/15
Judge and legal scholar Denis Salas, 2/17/15
Category 3: Experts on the Training of and Influences on Judges

Scholar Anne Boigeol, 10/17/14
Ecole Nationale de la Magistrature director Xavier Ronsin, 3/12/15
Ecole Nationale de la Magistrature member and legal scholar Antoine
Garapon, 11/18/14
Category 4: Lawyers
Public prosecutor involved in racism cases Annabelle Philippe, 5/19/15
Senior public prosecutor Jean Quintard, 12/15/14
mrap and licra lawyer Matthieu Henon, 11/18/14
agrif lawyer Jérôme Triomphe, 12/24/14
French government-appointed legal advisor Agnès Douvreleur, 11/18/14
Category 5: Experts on French Law

Scholar Alec Stone Sweet, 10/10/14
Scholar Pascal Mbongo, 10/9/14
Le Monde journalist Franck Johannès, 11/17/14
Scholar Pascale Deumier, 3/26/15
Category 6: Experts on Racism in France

Scholar Daniel Sabbagh, 10/10/14
Défenseur des Droits specialist Sophie Latraverse, 10/10/14
Category 7: Court of Cassation Judicial Actors from the 1990s

1990s Court de Cassation Judge B (confidential), 6/9/15
1990s Prosecutor in the Paris Press Tribunal (confidential), 6/9/15
a
Additional information about interviewees is available online in the supplementary material, Ap-
pendix B, Interview Methods Table: Hate Speech and France’s Court of Cassation; Bleich 2017.
https://doi.org/10.1017/S0043887117000272
Appendix 3
European Court of Human Rights Post–1998 Hate Speech Rulingsa
Target Speech Restriction
Year Case Group Upheld
2001 Osmani... v. Macedonia minority yes
2003 Garaudy v. France minority yes
2004 Seurot v. France minority yes
2004 Norwood v. UK minority yes
2007 Pavel Ivanov v. Russia minority yes
2008 Soulas and Others v. France minority yes
2008 Balsyte-Lideikiene v. Lithuania minority yes
2009 Feret v. Belgium minority yes
2009 Willem v. France minority yes
2012 Vejdeland and Others v. Sweden minority yes
2012 Peta Deutschland v. Germany minority yes
2015 Delfi AS v. Estonia minority yes
2015 M’Bala M’Bala v. France minority yes
2003 Gunduz v. Turkey (35071/97) majority no
2005 I.A. v. Turkey majority yes
2006 Aydin Tatlav v. Turkey majority no
2006 Giniewski v. France majority no
2006 Erbakan v. Turkey majority no
2006 Klein v. Slovakia majority no
2007 Karatepe v. Turkey majority yes
2007 Nur Radyo v. Turkey majority no
2009 Mehmet Cevher Ilhan v. Turkey majority no
a
This list includes all judgments and all major admissibility decisions (defined by the court as Case
Reports or level 1 importance) where the target group is a societal minority or majority.
Supplementary Material
Supplementary material for this article can be found at https://doi.org/10.1017
/S0043887117000272.
References
Alter, Karen J. 2014. The New Terrain of International Law: Courts, Politics, Rights.
Princeton, N.J.: Princeton University Press.
Béland, Daniel. 2009. “Ideas, Institutions, and Policy Change.” Journal of Euro-
https://doi.org/10.1017/S0043887117000272
pean Public Policy 16, no. 5: 701–18. doi: 10.1080/13501760902983382.

Béland, Daniel, and Robert Henry Cox, eds. 2010. Ideas and Politics in Social Sci-
ence Research. New York, N.Y.: Oxford University Press.
Bennett, Andrew, and Jeffrey T. Checkel, eds. 2014. Process Tracing: From Meta-
phor to Analytic Tool. New York, N.Y.: Cambridge University Press.
Berman, Sheri. 2001. “Ideas, Norms and Culture in Political Analysis.” Compara-
tive Politics 33, no. 2: 231–50. doi: 10.2307/422380.
Bleich, Erik. 2003. Race Politics in Britain and France: Ideas and Policymaking since
the 1960s. New York, N.Y.: Cambridge University Press.
———. 2017. Supplementary material for “Historical Institutionalism and Judi-
cial Decision Making: Ideas, Institutions, and Actors in French High Court
Hate Speech Rulings.” At https://doi.org/10.1017/S0043887117000272.
Bleich, Erik, and Robert Pekkanen. 2013. “How to Report Interview Data.” In
Layna Mosley, ed., Interview Research in Political Science. Ithaca, N.Y.: Cornell
University Press.
Blyth, Mark. 2002. Great Transformations: Economic Ideas and Institutional Change
in the Twentieth Century. New York, N.Y.: Cambridge University Press.
Blyth, Mark, Oddny Helgadottir, and William Kring. 2016. “Ideas and Histori-
cal Institutionalism.” In Orfeo Fioretos, Tulia G. Falleti, and Adam Sheingate,
eds., The Oxford Handbook of Historical Institutionalism. New York, N.Y.: Ox-
ford University Press.
Brandwein, Pamela. 2011. “Law and American Political Development.” Annual
Review of Law and Social Science 7: 187–216. doi: 10.1146/annurev-lawsocsci
-042710-092852.
Cichowski, Rachel A. 2006. “Courts, Rights, and Democratic Participation.” Com-
parative Political Studies 39, no. 1: 50–75. doi: 10.1177/0010414005283217.
Clayton, Cornell W., and Howard Gillman, eds. 1999. Supreme Court Decision-
Making: New Institutionalist Approaches. Chicago, Ill.: University of Chicago
Press.
Conran, James, and Kathleen Thelen. 2016. “Institutional Change.” In Orfeo
Fioretos, Tulia G. Falleti, and Adam Sheingate, eds., The Oxford Handbook of
Historical Institutionalism. New York, N.Y.: Oxford University Press.
Dyevre, Arthur. 2010. “Unifying the Field of Comparative Judicial Politics: To-
wards a General Theory of Judicial Behaviour.” European Political Science Re-
view 2, no. 2: 297–327. doi: 10.1017/S1755773910000044.
Edwards, Harry T. 2006. “Judicial Norms: A Judge’s Perspective.” In John N.
Drobak, ed., Norms and the Law. New York, N.Y.: Cambridge University Press.
Epstein, Lee, and Jack Knight. 2000. “Toward a Strategic Revolution in Judicial
Politics: A Look Back, A Look Ahead.” Political Research Quarterly 53, no. 3:
625–61. doi: 10.1177/106591290005300309.
Epstein, Lee, William M. Landes, and Richard A. Posner. 2013. The Behavior of
Federal Judges: A Theoretical and Empirical Study of Rational Choice. Cambridge,
Mass.: Harvard University Press.
Feldman, Stephen M. 2005. “The Rule of Law or the Rule of Politics? Har-
monizing the Internal and External Views of Supreme Court Decision Mak-
ing.” Law & Social Inquiry 30, no. 1: 89–135. doi: 10.1111/j.1747-4469.2005
.tb00347.x.
Fon, Vincy, and Francesco Parisi. 2006. “Judicial Precedents in Civil Law Sys-
https://doi.org/10.1017/S0043887117000272
tems: A Dynamic Analysis.” International Review of Law and Economics 26, no.
4: 519–35. doi: 10.1016/j.irle.2007.01.005.
Gillman, Howard. 2001. “What’s Law Got to Do with It? Judicial Behavioralists
Test the ‘Legal Model’ of Judicial Decision Making.” Law & Social Inquiry 26,
no. 2: 465–504. doi: 10.1111/j.1747-4469.2001.tb00185.x.
González Ocantos, Ezequiel. 2014. “Persuade Them or Oust Them: Crafting Ju-
dicial Change and Transitional Justice in Argentina.” Comparative Politics 46,
no. 4: 479–98. doi: 10.5129/001041514812522725.
Hacker, Jacob S. 2004. “Privatizing Risk without Privatizing the Welfare State:
The Hidden Politics of Social Policy Retrenchment in the United States.”
American Political Science Review 98, no. 2: 243–60. doi: 10.1017/S000305540
4001121.
Hall, Peter A. 1993. “Policy Paradigms, Social Learning, and the State: The Case
of Economic Policymaking in Britain.” Comparative Politics 25, no. 3: 275–96.
doi: 10.2307/422246.
———. 2003. “Aligning Ontology and Methodology in Comparative Research.”
In James Mahoney and Dietrich Rueschemeyer, eds., Comparative Historical
Analysis in the Social Sciences. New York, N.Y.: Cambridge University Press.
Hilbink, Lisa. 2012. “The Origins of Positive Judicial Independence.” World Poli-
tics 64, no. 4 (October): 587–621. doi: 10.1017/S0043887112000160.
Hirschl, Ran. 2004. Towards Juristocracy: The Origins and Consequences of the New
Constitutionalism. Cambridge, Mass.: Harvard University Press.
Ingram, Matthew C. 2012. “Crafting Courts in New Democracies: Ideology and
Judicial Council Reforms in Three Mexican States.” Comparative Politics 44,
no. 4: 439–58. doi: 10.5129/001041512801282988.
Kapiszewski, Diana, Gordon Silverstein, and Robert A. Kagan, eds. 2013. Conse-
quential Courts: Judicial Roles in Global Perspective. New York, N.Y.: Cambridge
University Press.
Keck, Thomas M. 2007. “Party, Policy, or Duty: Why Does the Supreme Court
Invalidate Federal Statutes?” American Political Science Review 101, no. 2: 321–
38. doi: 10.1017.S0003055407070190.
Keller, Helen, and Alec Stone Sweet, eds. 2008. A Europe of Rights: The Impact of
the ECHR on National Legal Systems. New York, N.Y.: Oxford University Press.
King, Desmond S., and Rogers M. Smith. 2014. “‘Without Regard to Race’: Crit-
ical Ideational Development in Modern American Politics.” Journal of Politics
76, no. 4: 958–71. doi: 10.1017/s0022381614000541.
Lieberman, Robert C. 2002. “Ideas, Institutions, and Political Order: Explaining
Political Change.” American Political Science Review 96, no. 4: 697–712. doi:
doi:10.1017/S0003055402000394.
Lupu, Yonatan, and Erik Voeten. 2012. “Precedent in International Courts: A
Network Analysis of Case Citations by the European Court of Human
Rights.” British Journal of Political Science 42, no. 2: 413–39. doi: 10.1017/S000
7123411000433.
Mahoney, James, and Kathleen Thelen. 2010a. “A Theory of Gradual Institu-
tional Change.” In James Mahoney and Kathleen Thelen, eds., Explaining In-
stitutional Change: Ambiguity, Agency, and Power. New York, N.Y.: Cambridge
University Press.
Mahoney, James, and Kathleen Thelen, eds. 2010b. Explaining Institutional
https://doi.org/10.1017/S0043887117000272
Change: Ambiguity, Agency, and Power. New York, N.Y.: Cambridge Univer-
sity Press.
Mandelkern, Ronen, and Michael Shalev. 2010. “Power and the Ascendance of
New Economic Policy Ideas: Lessons from the 1980s Crisis in Israel.” World
Politics 62, no. 3 ( July): 459–95. doi: 10.1017/S0043887110000109.
Michel, Verónica, and Kathryn Sikkink. 2013. “Human Rights Prosecutions and
the Participation Rights of Victims in Latin America.” Law & Society Review
47, no. 4: 873–907. doi: 10.1111/lasr.12040.
Montmirail, Cécile. 2009. La Preuve par l’agrif. Paris, France: Godefroy de Bouil-
lon.
MRAP. 1984. Chronique du Flagrant Racisme. Paris, France: Editions La Décou-
verte.
Orren, Karen, and Stephen Skowronek. 1996. “Institutions and Intercurrence:
Theory Building in the Fullness of Time.” Nomos 38: 111–46.
Parsons, Craig. 2003. A Certain Idea of Europe. Ithaca, N.Y.: Cornell University
Press.
Richards, Mark J., and Herbert M. Kritzer. 2002. “Jurisprudential Regimes in Su-
preme Court Decision Making.” American Political Science Review 96, no. 2:
305–20. doi: 10.1017/S0003055402000187.
Schmidt, Vivien A. 2010. “Taking Ideas and Discourse Seriously: Explaining
Change through Discursive Institutionalism as the Fourth ‘New Institution-
alism.’ ” European Political Science Review 2, no. 1: 1–25. doi: 10.1017/S1755
77390999021X.
Segal, Jeffrey A., and Harold J. Spaeth. 1993. The Supreme Court and the Attitudi-
nal Model. New York, N.Y.: Cambridge University Press.
———. 2002. The Supreme Court and the Attitudinal Model Revisited. New York,
N.Y.: Cambridge University Press.
Smith, Rogers M. 1988. “Political Jurisprudence, The ‘New Institutionalism,’ and
the Future of Public Law.” American Political Science Review 82, no. 1: 89–108.
doi: 10.2307/1958060.
———. 2008. “Historical Institutionalism and the Study of Law.” In Gregory
A. Caldeira, R. Daniel Kelemen, and Keith E. Whittington, eds., The Oxford
Handbook of Law and Politics. New York, N.Y.: Oxford University Press.
Snow, David A., E. Burke Rochford, Steven K. Worden, and Robert D. Ben-
ford. 1986. “Frame Alignment Processes, Micromobilization, and Movement
Participation.” American Sociological Review 51, no. 4: 464–81. doi: 10.2307
/2095581.
Stone Sweet, Alec. 2000. Governing with Judges: Constitutional Politics in Europe.
New York, N.Y.: Oxford University Press.
Whittington, Keith E. 2000. “Once More Unto the Breach: PostBehavioralist
Approaches to Judicial Politics.” Law & Social Inquiry 25, no. 2: 601–34. doi:
10.1111/j.1747-4469.2000.tb00974.x.
Yom, Sean. 2015. “From Methodology to Practice: Inductive Iteration in Com-
parative Research.” Comparative Political Studies 48, no. 5: 616–44. doi: 10.1177
/0010414014554685.
https://doi.org/10.1017/S0043887117000272

Historical Institutionalism and Judicial Decisionmaking-2

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Historical Institutionalism and Judicial Decisionmaking-2

Uploaded by

Copyright:

Available Formats

Downloaded from https://www.cambridge.org/core.

C OURTS play an increasingly important role in shaping political,

World Politics, 70, no. 1 ( January 2018), 53–85

judicial continuity, it has rarely drawn on research by historical institu-

identified by theorists of institutional evolution.5 These developments

Institutionalists have frequently shown that actors with alternate sets

significantly more weight on classic antiracism than on judicial neu-

classic antiracism idea of protecting vulnerable minorities in domestic

making and helps to conceptualize the role of ideas in historical insti-

French Court of Cassation Hate Speech Decisions

Légifrance database, cross-checked in a series of steps designed to ensure

protections based on origin, ethnic group, nation, race, or religion (im-

marginalized ethnic, racial, national, or religious outsiders since the end

(powerful) majorities, where the decisions by the Court of Cassation

Restrictions (antiminority) Protections (antiminority)

Restrictions (antimajority) Protections (antimajority)

Although it is revealing to examine the data taken as a whole, closer

Examining Alternative Theoretical Frameworks

forwardly, “You can’t identify and line up political convictions to ex-

Presiding Judge Decision to Protect Decision to Restrict

plain outcomes.”19 Taken as a whole, therefore, the available evidence

trolled both branches of government. Because mainstream right parties

Historical Institutionalism and Ideational

cision-making strand, I highlight the role of ideas; from the institu-

2010; Béland and Cox 2010.

lience of judicial neutrality, a preexisting but latent norm that inher-

that enable a close focus on causal mechanisms.38 The central goal is to

Michel and Sikkink 2013, 879–82.

sic antiracism ideas, focusing on racism directed at prototypical minor-

fore deliberations, one participating judge prepares a report and the

crimination founded on the origin or belonging or non-belonging to a

court dismissed anti-Catholic hate speech complaints. “Prudence” was

influence of the ecthr. In 1998, a major institutional reform eliminated

The post-1998 ecthr decisions therefore helped undercut the sa-

ational replacement, it may be more common than is currently recog-

nized by institutionally oriented students of ideas and politics. Ideational

Court of Cassation former judge and Constitutional Council member

Category 3: Experts on the Training of and Influences on Judges

Category 5: Experts on French Law

Category 6: Experts on Racism in France

Category 7: Court of Cassation Judicial Actors from the 1990s

pean Public Policy 16, no. 5: 701–18. doi: 10.1080/13501760902983382.

You might also like