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December 28, 2011

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Dan Joyner

This is a surprising assertion to me. I can't comment on other substantive areas of law, but in public international law a number of uk/eu based peer reviewed journals are in my opinion the gold standard of doctrinal and theoretical scholarship. Two of these journals - the ejil and the iclq - made the list. Others like the Leiden Journal of International Law and the Journal of Conflict and Security Law are also excellent. It may be that uk/eu peer reviewed journals are more doctrinal than us law reviews, but to me this isn't a negative trait. I value the solid doctrinal analysis of international legal questions in these journals. One generalization I would add to the list in this post, specifically with regard to public international law scholarship, is that uk/eu based academics tend to take international law more seriously as law, and write about it this way in their journals. Obviously some us based academics approach the subject this way as well, but many do not. So in public international law I would disagree with the conclusion that on a qualitative basis eu/uk journals are not as good as us law reviews. If anything, again making a generalization, in terms of serious doctrinal scholarship I would say the opposite conclusion is correct.

Charles Hoffman

On the issue of antitrust/competition law specifically, US-based scholarship is very different from what you see elsewhere because of the dramatically different statutory bases of the laws. The American competition laws are basically cyphers to be filled in by judges, counsel, academics, etc., while other countries are much more likely to have detailed statutory regimes or codes explaining exactly what is and is not permissible. So, many American articles on antitrust law are really about policy questions, which are not of as much interest to the European, Canadian, etc., audiences.

Of course, another huge factor here is the immense influence American antitrust law has on the rest of the world, with many (though not by any means all) foreign competition regimes largely based on the American model. For better or for worse, this makes a lot of foreign scholarship less interesting to American scholars, at least until the convergences start to diverge again.

As for other areas, I am not surprised at all that there is such little interaction between American and "foreign" scholars, except in the limited area of international law. Since the mid-Nineteenth-Century, American law has de-emphasized its links to the United Kingdom and Commonwealth, let alone civil law jurisdictions. If law is to a large degree always national, American law is even more so. As a graduate student studying in Canada, but likely to return to the United States in the next stage of my academic career, I find this a little frightening, as I dread trying to explain how my Canadian-specific research is relevant to teaching in an American law school.

D. Daniel Sokol

I have some comments.

Antitrust: Charles you are only partially correct. Because antitrust in the US has relied so heavily on the judiciary with a relatively short staturoy scheme, academic writing has been able to address policy questions. However, when European law work addresses the same policy questions, the European legal scholars overall show less knowledge of the related industrial organization economics. Moreover, there are areas where there are apples to apples comparisons of the two schemes. There are merger guidelines in the US and in most countries that detail how to address antitrust concerns for all sorts of issues. The substantive areas addressed are relatively the same across jurisdictions (both civil and common law). Where you have differences across the systems are in the following areas: (i) In focusing on protecting competition and consumers, how does one analyse effects on competitors? (ii) What is the welfare standard used in analyzing effects on society? (iii) What is meant by "market definition," and how is it used in substantive analysis? (iv) What theories of competitive harm are recognized? (v) How are market dynamics taken into account? (vi) What efficiencies are considered, if any, and how are they measured? (vii) To what extent does financial weakness of a merging firm get taken into account? (viii) What nature of remedies will be used? (ix) Are there safe harbors?

When you look at the legal scholarship that addresses these questions across jurisdictions, you tend to find different levels of analysis- most work not written by economists outside the US tends to have less of an understanding of the economics to the legal regime and in antitrust/competition law this is the entire ballgame. This is changing in Europe, Asia and elsewhere and there are a number of really good scholars 45 and under. However, economics departments and law schools tend to be much more bifurcated outside the US. You are far less likely to see a joint workshop the way many schools commonly have in the US and which exists in Canada at the University of Toronto-- probably the best in Europe is at the University of East Anglia with strong interdisc centers elsewhere such as at the University of Amsterdam, Oxford, and the University of Chile. In Australia the University of Melbourne has a great competition law LLM that requires students to take econ classes. There are also econ modules in the competition law LLM programs at Kings and UCL in London. I strongly believe that scholarship in Europe and Asia will look very different (more North American in the application of economic theory ("North American" since the Canadian competition law scholarship by Trebilcock, Iacobucci and Katz has always been heavy on the l&e) in a decade.

Public international law - I am not surprised by the strength of its citation count in the US because this field for the most part speaks a common language in analytical approach.

My question is why in other areas of law (criminal law, torts, contracts, corporate, procedural law, etc.) do we not see citations to non-US law reviews when at the level of policy, the issues confronted may be similar?

Paul Horwitz

http://prawfsblawg.blogs.com/prawfsblawg/2011/12/blame-canada-and-everyone-else-legal-scholarship-edition.html

Mark Levin

Related question. How should our peers weigh work published in foreign language law journals? For example, I and colleagues in my field of Japanese law frequently publish to both US and Japanese legal academic audiences. This takes much time and effort, even with an assist in the translation. And the norms in the two discourse settings vary with regards to length, footnotes, etc. So our reputations and impacts grow in two language realms but US peers may only see (or be comfortable trying to assess) one half of the result.

Am assuming that both should be viewed as meaningful, in which case it all gets tricky, to say the least.

Jacqueline Lipton

Kim - I just saw this and I think I would be wise to stay the heck out of it. However, I do think a lot of assertions are made in the U.S. about perceived deficiencies/limitations/irrelevance of foreign scholarship that are unfounded or made in ignorance by people who have not seriously researched foreign scholarship.

In my early years in the U.S. before I had published much in U.S. journals, I had colleagues criticize me for previously writing only 'doctrinal case notes' in other countries. To this, I would always ask them if in fact they had ever read anything I had written overseas, given that of my 40 + overseas publications, there was only actually one casenote, which suggested to me that people making the comments had neither read my foreign work, nor my CV.

There are certain limitations with foreign scholarship from whichever perspective you look at it. For example, when I was in Australia I was careful not to overdo cites to U.S. developments particularly when I was writing in areas that were significantly substantively different (eg antitrust, banking and finance).

Another more general problem with citing to foreign scholarship is the risk of taking it out of context. Many academic legal fields have become quite specialized, with different principles developing in different countries even in relatively internationally harmonized areas. One can end up looking pretty stupid if one cites a foreign article or case only to realize later that it didn't support an assertion you were trying to make because you didn't really understand its full context and implications from that context.

Even when I did comparative Australia/U.K. writing (those two legal regimes being more similar to each other than the U.S. is to either of them at least in the areas I most commonly write in), I had to be very careful not to miss fundamental differences that weren't always apparent on the face of any one article or judicial decision. Spending a couple of years in England helped a great deal with that, as has now spending many years in the U.S.

So this is me 'staying out of it' - or not! I think comparative work is very important and comparative knowledge has helped me, but one must take it seriously and not come to it with too many preconceptions about the role or value of U.S. scholarship versus foreign scholarship. International teaching and research visiting exchanges (even short term exchanges) are extremely helpful for those who want to get a better flavor of foreign scholarship.

Kim Krawiec

Thanks, Jacqui! Glad that you didn't *really* stay out of it. This is a very interesting take.

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