Sunday, 30 December 2012

My Comparative Law book – a preview

Over the last few days, I’ve been busy writing for my book on Comparative Law (CUP, 2014, forthcoming). As a form of procrastination I also played a bit with the references, i.e., the footnotes. The figure below shows the authors I have cited most often, as the book is at the moment.

Does it show anything interesting? As I discussed a few times on the blog, there are certain ‘camps’ of traditional comparative lawyers on the one hand and post-modern ones on the other (eg here; here). My citations may indicate a slight preference for the latter (eg, Mattei and Legrand) but I also cite more traditional ones (Zweigert & Kotz, Markesinis) plus further top comparatists who are somewhere between these camps. So, I think it looks ok. Needless to say that of course quantity is different from quality, ie if I were asked who were the writers most influential for my research I would mention other names as well.

Tuesday, 18 December 2012

The European Banking Union – a glass half full?

I’m just returning from Brussels where I attended an ECGI conference on Corporate Governance and Banking Union in a transatlantic perspective, with a number of high-profile speakers, inter alia, the EU Commissioner Barnier (his speech is here).
  • The general line of most initial presentations was that the forthcoming banking union, just agreed a few days ago, is a step in the right direction in order to guarantee effective supervision of banks and reduce the risk of future crises; but also that more needs to be done, for example, establish a single resolution authority in case of bank failures. So, the glass may be half full.
  • But, then, the emphasis also shifted to further gaps and problems, for example, that the banking union will be limited to the supervision of 200 or so big banks, that it will not automatically extend to the non-Eurozone countries, that it will only cover banking (not related topics of securities, capital markets and insurance), and that in substance banking law is only partly harmonised. So, the glass may also be seen as, at least, half empty.
  • However, one of the speakers also draw a parallel to the division of responsibilities in today’s EU competition law with some powers at the EU level, eg, for big cross border mergers, and the rest left for the Member States. So, it may well be wise that the banking union has only a limited scope. To continue with the metaphor, we may just take a smaller glass as benchmark and then it may almost be full.
  • But in the end I was getting more and more sceptical about the entire endeavour. The banking union means that the EU-wide supervision is done by the European Central Bank but there are a number of reasons why this may not make sense (apart from the limitation to the Eurozone, the difficult relation to the monetary tasks of the ECB, the unclear relation to the European Banking Authority, the lack of expertise in banking supervision). Also, more than once the conference turned to other topics related to banking and the financial crisis and those may well be seen as more important (such as Basel III, corporate governance failures, macro-systemic risk supervision and the international dimension of all of these). Thus, a sceptic may say, to continue with the metaphor, that the glass may be more or less full but that we should be more focussed in filling the glass with the right liquid.

Monday, 10 December 2012

Mapping, continued – the tension between legal research and teaching

It’s nice to see that the paper with Daithi Mac Sithigh on ‘Mapping Legal Research’, just published in the CLJ has received some attention on Twitter and SSRN (ssrn version here). In it we do various things but one of the main ideas is to map legal research based on the distinction between ‘practical legal research’, ‘law as social sciences’ and ‘law as humanities’.
A deliberate limitation of the paper was that we only looked at legal research: thus, this post sketches on how it may differ from legal teaching in the US, the UK and Germany. The figure below takes as a starting point the (small) dots for legal research from the paper, eg, see that the US is closest to social sciences, the UK mixed and Germany closer to practical and humanities-related legal research. Then, it adds legal teaching, and for Germany also examinations, in order to illustrate possible tensions (though not based on hard empirical data).
It can be seen that teaching in all three countries shifts the focus closer to ‘practical legal research’. But there are differences as well: (a) in the US the tension seems to be most pronounced but then the top US law schools ‘outsource’ a not insignificant part of their teaching to adjunct professors or other practitioners; (b) in the UK there is also some tension and I feel that most academics just accept it that research and teaching diverge a bit; (c) in Germany the tension seems less pronounced but then most of the final exam is managed by the state (not the universities) which is even less interested in law as social sciences and humanities: thus, here, the main tension is between teaching and examination (though this gap has decreased a bit in recent years).
How much does all of this illustrate ‘a problem’? To start with, in all academic disciplines research and teaching are bound to diverge: eg, in something like maths or medicine a professor teaching first year students will always have to start with the same introductory topics but his/her research would naturally do something more advanced. But in law the additional tension seems to be that there is some desire (or pressure) not to depart too much from the model of the ‘law school as a driving school’ – but here, of course, I don’t agree as explained in an earlier paper.