Sunday, 30 September 2012

The Non-Law Heroes of Comparative Law

Sunday afternoon and I’m playing with Google Scholar. Following up from one of my previous posts, I was wondering which non-law intellectuals are most popular in comparative law – also considering potential differences between the English-, French-, and German-speaking world. I searched ten names:

Adam Smith
John Maynard Keynes
Milton Friedman
Pierre Bourdieu
Michel Foucault
Emile Durkheim
Max Weber
Karl Marx
Immanuel Kant
Sigmund Freud

To explain: (a) I counted the hits for these names plus “comparative law” in the three languages from 2010 until today (ie 30 September 2012), eg, something like “Adam Smith” AND “droit compare”; (b) then I searched how often “comparative law”, “droit compare” and “Rechtsvergleichung” have been mentioned in total; the table above indicates the hits per total. (c) green is more than 2% hits; yellow between 1-2%.
Interpretation: Max Weber most popular: perhaps not a surprise since in substance he may be seen as comparative lawyer anyway. Then, language/nationality effect: compare Adam Smith, Michel Foucault, Karl Marx and Immanuel Kant. A bit surprised about the popularity of Marx & Kant, less so about Smith & Foucault. Also interesting to note other differences: eg very low hits for Smith & Kant in French and Bourdieu in English.
Caveats: ok, what journals, books etc are in Google Scholar, ie are they are good proxies? It would also be interesting to examine more closely in which context these names are mentioned (or the reverse: in which context ‘comparative law’ is mentioned in research about these persons)

PS: Just searched a few more names: Habermas and Hobbes also make it at least in the >1% category; narrowly not Derrida (0.94% for France).

Saturday, 22 September 2012

Tolerance (and world peace!) – a model

This blog has dealt with many difficult issues, such as rankings of journals and universities, but now it’s time to be really ‘brave’: so here’s my model for world peace – or, well, at least an attempt to understand trends of growing intolerance between cultures (for illustration: here, here, here).
So, let’s start with two groups (called A and B) and what these two groups think about each other. Initially, we have the situation that the majority of both groups understands that there are a few ‘maniacs’ in the other group but that, generally speaking, the members of the other group are tolerant. Thus, we are at point X in Figure 1 below. But, then I would argue that we may have moved gradually to Y where both groups have a negative view about the tolerance of the other group.

Why? In Figure 2 assume that, first, something exogenous to this model happens that makes group A bit more intolerant towards B (eg, a violent attack, a perceived insult). Then group B thinks that A’s reaction is really outrageous – and B becomes more intolerant towards A, going even further then A’s initial reaction. This, then, triggers a further reaction by group A, etc, until we reach point Y. And returning to Figure 1, even if now group A thinks that this has escalated too far, and it makes a well-meant gesture to group B (black arrow), this is not be sufficient if group B does not react, because then group A will return to the view that B is indeed predominantly intolerant (blue arrow).
So, that sounds all fairly grim. What’s the positive lesson? The model shows that it is not facts but attitudes which matter. To provide an imperfect analogy: if this model is seen as a football match and we assume that a foul occurs, what matters is that the other side regards this as a mere accident and not as something deliberate that deserves an even more violent foul – while it does not matter whether the initial foul was indeed accidental or deliberate! Thus, the ‘simple’ lesson is to find a mechanism that triggers over-reactions to good intentions (not over-reactions to bad acts), and in doing so reversing the shift from X to Y.

Wednesday, 12 September 2012

Who are the top 10 comparative lawyers in the US?

A few days ago Phillips & Yoo posted a paper on SSRN, inter alia, with citation rankings of US legal scholars according to various areas of law (available here). They say that they made some methodological improvements to the previous citation rankings by Leiter (here). Yet, what interested me most was that, in contrast to Leiter, they also included ‘comparative law’ as a category. So, here are Phillips & Yoo’s top 10 US comparative lawyers:
1. Vicki C Jackson, 2. Tom Ginsburg, 3. Katerina Linos, 4. Christopher Sprigman, 5. Joseph HH Weiler, 6. Stephen A Gardbaum, 7. James Q Whitman, 8. Alec Stone Sweet, 9. Mark D West, 10. Robert A Kagan.
Is this plausible? Well, perhaps not if we consider another list of top US comparative lawyers, namely the US-based legal scholars who participated to the Oxford Handbook of Comparative Law (the thinking being that this book is the main authority of comparative law):
Charles Donahue, David S. Clark, Ralf Michaels, Vivian G. Curran, Harold J. Berman, James Gordley, Annelise Riles, Ugo Mattei, E. Alan Farnsworth, Harry D. Krause, Matthew W. Finkin, David J. Gerber, Mark Tushnet, Markus D. Dubber, Mathias Reimann
Comparing the names, it can be seen there is no overlap at all between the Phillips & Yoo ranking and the contributors to the Oxford Handbook. That’s very strange... And indeed, I’d say that there are a number of problems with the Phillips & Yoo ranking of US comparative lawyers: (a) Phillips & Yoo only considered the top 16 US law schools, but many well-known comparative lawyers are at lower-ranked law schools with a strong focus on comparative law (eg, Tulane, Hastings). (b) Their ranking is based on citations in US law reviews plus journals of the Web of Science. Thus it predominantly measures US legal scholarship. This explains the constitutional law bias of the ranking (and the fact that main private-law comparatists of the Oxford Handbook don’t make it in their top 10) since US constitutional lawyers have some interest in comparative questions, but that’s different for most questions of US private law. (c) They allocate each of the US scholars to only one category (note therefore that Tushnet, who contributed to the Oxford Handbook, is in the ‘public law’ category of the Phillips & Yoo ranking). This is problematic since the ‘comparative lawyers’ of their top 10 may actually have mainly have been cited for their work on other topics.

Thus, let’s turn to my suggestion for an alternative top 10 that takes these points into account. It is based on Google Scholar (thus addressing (b), above), searching for all ‘hits’ (ie cites plus own articles) between 1 January 2011 and today, ie 11 September 2012. The search term includes ‘comparative law’, as well as versions of the name with or without the middle initial; eg something like: ("Vicki C Jackson" OR "Vicki Jackson") AND "comparative law". Thus, I only aim to capture articles which have at least a very modest link to comparative law (thus addressing (c), above). I searched all names of Phillips & Yoo’s top 10, all US names of the Oxford Handbook plus circa 30 further names of the most prominent US comparative lawyers (thus addressing (a)), above).

All of this leads to my top-ten of US comparative lawyers (with hits in brackets):
  1. Tom Ginsburg (178)
  2. Mark Tushnet (165)
  3. Alan Watson (152)
  4. Mathias Reimann (150)
  5. David Kennedy (132)
  6. Alec Stone Sweet (132)
  7. Joseph Weiler (127)
  8. Ralf Michaels (113)
  9. Ugo Mattei (123)
  10. Katharina Pistor (94)
I think this looks plausible than the Phillips & Yoo top 10. It is also interesting to see that this list contains only three of their top 10 (numbers 1, 6, 7), four of the Oxford Handbook contributors (numbers 2, 4, 8, 9) plus three further names whose cites I counted as well (numbers 3, 5, 10).

Caveat: well, I have to admit I also counted the hits of a few more scholars (adding, as explained, AND ‘comparative law’), and they would have also made it into my top 10 - but then I felt that they cannot be regarded as comparative lawyers. They are (with hits in brackets): Richard Posner (342), Eric Posner (188), Andrei Shleifer (119), and Lawrence Friedman (118). I fully admit that this introduces some subjectivity, but then I don’t think I got it wrong because these four are really predominantly law & econ, law & society or just economics scholars, despite their (apparently) frequent citations in the comparative law literature.

Friday, 7 September 2012

What type of knowledge does legal education provide? – A comparative overview

I’m just at UC Hastings College of Law in San Francisco attending an interesting conference on Justice System Reform in Japan. One of the topics concerns the controversial changes to legal education in Japan: to simplify, it means mixing element of European and US style legal education. To get a clearer picture, I draw the table below. It shows, in a simplified way, what knowledge lawyers have once they are qualified in the US, the UK, Germany and Japan – including the university education (in law and/or in other fields, relevant for the US) as well as the post-university education (eg, the traineeships in the UK and Germany). 

black-letter law
legal practicalities
non-law knowledge
high *
high *
                                                         * but at university: low!

The main difference seems to be in the column on ‘non-law knowledge’. However, the discussion at the conference focussed on the knowledge of ‘legal practicalities’. How come? It seems to me that many overlook that in most countries these skills are ‘outsourced’ to a special training following university education (practical but also with courses). Which model is preferable? One could say that it makes more sense to proceed as the UK and Germany since law professors may have no genuine interest or skills in teaching these issues. But then it can also be based at universities but that it’s mainly done by adjunct or visiting professors, as I guess it’s getting more and more common in the US (and possibly also the new professional law schools in Japan). So perhaps either model is a feasible one.

PS: on a related topic see my chapter on ‘a world without law professors’ (though not dealing with Japan)