Leveling and Spotlighting: How International Courts Refract Private Litigation to Build Institutional Legitimacy

Private actors are increasingly turning to international courts (ICs). We argue that ICs can refract private litigation to build legitimacy and mitigate intergovernmental backlash. By leveling the odds for individuals and spotlighting their claims over those of more resourceful litigants, ICs cultivate civil society support and legitimate judicial policymaking in intergovernmental polities where individuals are disempowered. We evaluate this argument by scrutinizing the first IC with private access: the European Court of Justice (ECJ). We trace how ECJ judges privilege individuals in their advocacy and assess if they match words with deeds. Leveraging an original dataset, we find that the ECJ “levels,” supporting individual claims over businesses boasting larger and more experienced legal teams. The ECJ also “spotlights” its support for individuals through press releases that get amplified in law reviews. Our findings challenge the view that ICs build legitimacy by stealth and the haves come out ahead in litigation.