Comments on: Why law & economics failed in Germany: The real reasons for the “transatlantic divide” http://www.antitrustreview.com/archives/1207 News and commentary about antitrust, economics, technology, policy Mon, 08 Sep 2008 10:26:48 +0000 http://wordpress.org/?v=2.2 By: Dirk http://www.antitrustreview.com/archives/1207#comment-10371 Dirk Fri, 02 Nov 2007 13:54:58 +0000 http://www.antitrustreview.com/archives/1207#comment-10371 <p>With due respect, Mr. Garoupa, the argument by Kaiser/Grechenig/Gelter strikes me as more plausible than the one proposed in your paper. The structure of legal education is certainly an important factor. To the extent that you focus on competitiveness in legal education as the principal criterion, however, the approach appears very reductionist:</p> <p>First, I am not sure you are right as an empirical matter: while it is probably true that competition to secure a position in a top 25 US school is higher than in most places in Europe, I would dare to argue that the contrary is true for the remainder of the schools. With a huge number of seond-tier and third-tier schools, the US market offers a safety net that European teaching markets don't have. If, after the PhD, one does not find a teaching position at one of the (comparatively few) European universities, a career change is the only option. In fact, I know of several scholars who were unable to secure a teaching position in Germany and who, subsequently, went abroad to teach in the UK, Canada, the US, and New Zealand.</p> <p>Second, it seems that you underestimate the potential of legal innovation in Europe. There are many other sites of innovation, apart from law & economics. Since we were speaking of the German-speaking teaching market, think of discourse theories of law (Alexy, Tschentscher), critical theories of law (Günther, Frankenberg) or systems-theoretical (autopoietic) approaches to law (Teubner, di Fabio). A concern, however, is the following: such innovation does not seem to be as helpful for people on tenure track as they should be. Thus, in my mind, the real question is not one of competitiveness (for there is a lot of that on both sides of the ocean) but of the criteria generally applied for tenure nomination.</p> <p>While Kaiser's criteria strike me as plausible, one may perhaps add another one that explains why even recent, cutting-edge scholarship in Europe is hesitant to adopt L&E approaches. I suspect that, following the 60s and 70s, there is a strong hesitation in continental legal scholarship to subscribe to notions of strategic rationality. Recent German scholarship on the legal theory front tends to me more committed to concepts of discursive rationality. It would not necessarily be satisified with explanations from "inside the legal system", as Kaiser writes. Rather, it would attempt to test the procedures and content of the legal systems against postulates of procedural justice.</p> With due respect, Mr. Garoupa, the argument by Kaiser/Grechenig/Gelter strikes me as more plausible than the one proposed in your paper. The structure of legal education is certainly an important factor. To the extent that you focus on competitiveness in legal education as the principal criterion, however, the approach appears very reductionist:

First, I am not sure you are right as an empirical matter: while it is probably true that competition to secure a position in a top 25 US school is higher than in most places in Europe, I would dare to argue that the contrary is true for the remainder of the schools. With a huge number of seond-tier and third-tier schools, the US market offers a safety net that European teaching markets don’t have. If, after the PhD, one does not find a teaching position at one of the (comparatively few) European universities, a career change is the only option. In fact, I know of several scholars who were unable to secure a teaching position in Germany and who, subsequently, went abroad to teach in the UK, Canada, the US, and New Zealand.

Second, it seems that you underestimate the potential of legal innovation in Europe. There are many other sites of innovation, apart from law & economics. Since we were speaking of the German-speaking teaching market, think of discourse theories of law (Alexy, Tschentscher), critical theories of law (Günther, Frankenberg) or systems-theoretical (autopoietic) approaches to law (Teubner, di Fabio). A concern, however, is the following: such innovation does not seem to be as helpful for people on tenure track as they should be. Thus, in my mind, the real question is not one of competitiveness (for there is a lot of that on both sides of the ocean) but of the criteria generally applied for tenure nomination.

While Kaiser’s criteria strike me as plausible, one may perhaps add another one that explains why even recent, cutting-edge scholarship in Europe is hesitant to adopt L&E approaches. I suspect that, following the 60s and 70s, there is a strong hesitation in continental legal scholarship to subscribe to notions of strategic rationality. Recent German scholarship on the legal theory front tends to me more committed to concepts of discursive rationality. It would not necessarily be satisified with explanations from “inside the legal system”, as Kaiser writes. Rather, it would attempt to test the procedures and content of the legal systems against postulates of procedural justice.

]]> By: Kristoffel http://www.antitrustreview.com/archives/1207#comment-10345 Kristoffel Thu, 01 Nov 2007 13:35:09 +0000 http://www.antitrustreview.com/archives/1207#comment-10345 <p>Nuno, I liked your paper. Still, how do explain that the gap between the US and Europe is so much larger in law than in any other field of scholarly research (see our brief discussion on page 10 & 11)?</p> Nuno, I liked your paper. Still, how do explain that the gap between the US and Europe is so much larger in law than in any other field of scholarly research (see our brief discussion on page 10 & 11)?

]]> By: Mark Gergen http://www.antitrustreview.com/archives/1207#comment-10344 Mark Gergen Thu, 01 Nov 2007 11:41:27 +0000 http://www.antitrustreview.com/archives/1207#comment-10344 <p>I cannot speak about Germany. This understates the importance of elite legal academics in the US in the 19th and early 20th century. It overstates the commitment among US legal elites to "formalism." A colleague, David Rabban, has a forthcoming book that demonstrates that legal thinkers in the US in the latter half of the 19th century had an historical and evolutionary view of the law. This overlooks what I believe is a central reason why legal realism flourished in the US. It is because of the practice in US legal education of teaching an amalgam of the law of the several states in private/common law courses. One cannot help but realize that legal formulae are not solving concepts when there is a confusion of formulae.</p> I cannot speak about Germany. This understates the importance of elite legal academics in the US in the 19th and early 20th century. It overstates the commitment among US legal elites to “formalism.” A colleague, David Rabban, has a forthcoming book that demonstrates that legal thinkers in the US in the latter half of the 19th century had an historical and evolutionary view of the law. This overlooks what I believe is a central reason why legal realism flourished in the US. It is because of the practice in US legal education of teaching an amalgam of the law of the several states in private/common law courses. One cannot help but realize that legal formulae are not solving concepts when there is a confusion of formulae.

]]> By: Spencer Waller http://www.antitrustreview.com/archives/1207#comment-10313 Spencer Waller Wed, 31 Oct 2007 17:22:02 +0000 http://www.antitrustreview.com/archives/1207#comment-10313 <p>I also have a very different theory about where law and economics has been adopted and where it has been rejected based on the institutional characteristics of the legal jurisdiction or body of law under examination. The article is "The Chicago School Virus" and it can be found at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1017882.</p> I also have a very different theory about where law and economics has been adopted and where it has been rejected based on the institutional characteristics of the legal jurisdiction or body of law under examination. The article is “The Chicago School Virus” and it can be found at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1017882.

]]> By: Nuno Garoupa http://www.antitrustreview.com/archives/1207#comment-10310 Nuno Garoupa Wed, 31 Oct 2007 14:01:19 +0000 http://www.antitrustreview.com/archives/1207#comment-10310 <p>We have a very different theory on our paper forthcoming in the Alabama Law Review: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=972360</p> We have a very different theory on our paper forthcoming in the Alabama Law Review: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=972360

]]> By: Kristoffel http://www.antitrustreview.com/archives/1207#comment-10273 Kristoffel Tue, 30 Oct 2007 13:08:44 +0000 http://www.antitrustreview.com/archives/1207#comment-10273 <p>I think "judicial review" is a relevant factor. We have mentioned it in our paper (e.g. page 12). Maybe, we should have discussed it more thouroughly. "Impersonal judgments" may have also played an important role, although nowadays, everybody knows which judges have decided a certain case at the highest courts.</p> I think “judicial review” is a relevant factor. We have mentioned it in our paper (e.g. page 12). Maybe, we should have discussed it more thouroughly. “Impersonal judgments” may have also played an important role, although nowadays, everybody knows which judges have decided a certain case at the highest courts.

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