Thursday, 23 December 2010

Shanghai and blogging break

If things work well (Heathrow!), I'm going to fly to Shanghai tomorrow, visiting at the law school of Shanghai Jiao Tong University. I'll therefore take three weeks off blogging and will be back in mid January.

Wednesday, 22 December 2010

Programme on Lord Bingham - and how Lord Falconer got it completely wrong

I just listened to the BBC Radio 4 programme “Unreliable Evidence” (see here) on the late Lord Bingham, described as one of the greatest judges of all time (here). It was very interesting to me, not least since I had been a visiting fellow at the BICCL in the last four months which has been closely associated with Lord Bingham. There was not a lot to disagree with the interviewees - until in the final seconds of the programme Lord Falconer said the following about the judiciary: "The way forward is the way how Tom [Bingham] demonstrates, which is to focus on the law: what judges do well is being judges (...)". This was said in the context of judges not being celebrities, which I agree they should not be, but, still, I find this statement clearly wrong. Lord Falconer seems to assume that the law is something independent to political, social and economic circumstances, the latter being things judges should apparently ignore. But such kind of positivism is really something that has been out-of-date for more than half a century. Of course, judges are not politicians but a good judge should clearly not only know the law but be aware of its socio-economic context.

Sunday, 19 December 2010

Oxford Handbook of Comparative Law: a brief book review

I have just been reading more properly most of the chapters of the Oxford Handbook of Comparative Law (Reimann and Zimmermann eds, 2006). Overall, I find it very useful: Part II (approaches to comparative law) is very good; personally, I’m less interested in Part I (history of comparative law) and a couple of chapters of Part III (subject areas) may a bit old-fashioned.
Of course, all comments of the OUP Handbook have to reflect the – outrageous but entertaining – “criticisms of all criticisms” by Pierre Legrand, published in the Journal of Comparative Law and online available here. He writes:
"This book evidences pathologies not unfamiliar to the field of comparative legal studies: A compulsion for lists and an obsession with size. (...) But what (…) use reports devoting fully 32 pages to France (…) and 25 per cent less to the whole of ‘East Asia’? … What benefit a map of the world’s laws when 11 of the 15 mappers teach in Germany or the US with over 70 per cent of these US academics operating around the Great Lakes? (…) (C)contributions were thus entrusted to friends and to friends of friends — a chromophobia indulged by the publishers. What was needed was violence of thought. What is proposed is hegemonic, aparthood-like violence that is unable to engender thought.(…)"
Does Legrand have a point? I just did a mini-analysis of the 43 contributors: (1) Looking at their current affiliations 33% are from the US, 19% from Germany, 9% from the UK and from South Africa, 7% from Italy and France, 5% from the Netherlands and 2% (i.e. one author) from Switzerland, the Czech Republic, Canada, Japan and Lebanon. (2) Alternatively, one can look at the countries of origin of the authors: then, Germany tops the list with 30%, followed by the US with 28%, South Africa 9%, the UK and Italy 7%, France and the Netherlands 5%, and the Czech Republic, Canada, Japan and Lebanon 1%.
So, yes, the choice of contributors is skewed. The US and Germany are overrepresented and the UK, France and Italy underrepresented. Importantly, a number of major jurisdictions are not represented at all, e.g., Russia,China, India, and Brazil. There are also no contributors from Latin America, the Nordic countries and any African country with the exception of South Africa.
Is this a problem? I am divided: on the one hand, a country or continent quota of authors would be slightly odd. What matters is the quality of the contributions. So, using the UK REF terminology, I’m perfectly happy to read a 4* article by the 10th contributor of country A, ignoring the 1* contributions by the first author of country B. On the other hand, where we are from and where we are clearly influences the way we think and write about law. Thus, authors from other jurisdictions may have provided different ideas about comparative legal thinking reflecting the plurality of legal systems and methods around the world.

Sunday, 12 December 2010

Networks, Dialogue or One-Way Traffic? An Empirical Analysis of Cross-Citations between Ten European Supreme Courts

The second paper of the project with Martin Gelter, available here. Abstract:
Today, according to Anne Marie Slaugther, "judges see each other not only as servants and representatives of a particular polity, but also as fellow professionals in an endeavour that transcends national borders." Such interaction may take place in various forms. There is some direct transnational cooperation between supreme court judges, but in our project we focus on cross-citations as a form of influence. To be sure, the citation of a foreign court does not necessarily mean that foreign ideas were really a decisive consideration for the outcome of a case. Still, cross-citations can show to what extent courts use foreign law as a justification for a judicial decision.
In this short paper, which is part of a wider research project, we present and analyse some of our findings on cross-citations between ten European supreme courts. We managed to get access to the full text of almost all decisions of these ten courts for the period between 2000 and 2007. It total we considered 636,172 decisions and found 1,426 cross-citations. The paper is structured as follows: first, we summarise the data considered and the search methodology used. The next two parts present different ways to visualise these data: on the one hand three types of bar charts showing the citations per citing court, and on the other hand two network presentations of the cross-citations between the ten courts. Subsequently, we examine the relationship between incoming and outgoing citations, in particular whether some of the ten courts may be regarded as "the core" and others as "the periphery". Finally, we discuss possible policy implications, in particular in the context of the European Union.

Monday, 6 December 2010

Language, Legal Origins, and Culture Before Courts: Cross-Citations Between Supreme Courts in Europe

A joined empirical paper with Martin Gelter (Fordham). The paper is available here, and the abstract reads:
Should courts consider cases from other jurisdictions? The use of foreign law precedent has sparked considerable debate in the United States, and this question is also controversially discussed in Europe. In this paper and within the larger research project from which it has developed, we study the dialogue between different European supreme courts quantitatively. Using legal databases in Austria, Belgium, England and Wales, France, Germany, Ireland, Italy, the Netherlands, Spain, and Switzerland, we have hand-collected a dataset of transnational citations between the highest courts of these countries, in total searching 636,172 decisions decided between 2000 and 2007.
In the present paper we show that citation of foreign law by supreme courts is not an isolated phenomenon in Europe, but happens on a regular basis. We found 1,426 instances in which these courts have cited the supreme courts of the other nine countries. The majority (1,077) of these citations have been made for purely comparative reasons. We also undertook regression analysis in order to understand the differences between the cross-citations. Whether such citations take place and in what quantity depends on the particular legal culture and its relationship to others. Austria and Ireland, which stand in an asymmetric relationship with Germany and England respectively, seem to be particularly receptive to foreign influence on their legal systems. But even controlling for these outliers, we have been able to identify that the population of the cited country and a low level of corruption, native languages and language skills, legal origins and families, and cultural and political factors all matter for which courts are likely to be cited. More specifically, knowledge of the language of the cited court appears to be a more important factor driving cross-citations than legal traditions, culture or politics. Thus, to facilitate a transnational market of legal ideas, it can be suggested that courts should strive to make their decisions available in languages that possible readers understand.