Law and Method

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Access_open Naar een gedragseconomie van het recht

Keywords behavioural law and economics, law and economics, experimental approach, incentive compatibility
Authors Marin Coerts, Berber Laarman, Jacobien Rutgers e.a.
AbstractAuthor's information

    Behavioral economics builds on insights from behavioural sciences, primarily psychology, and aims to explain the behaviour of (groups of) individuals under conditions of scarcity. It applies an empirical methodology grounded in econometrics and based on experimental research. The authors’ proposition is that behavioural law and economics rooted in experiments is a valuable approach to legal studies that complements pre-existing law and economics. Experiments maximise the opportunity to identify causal links and norms as building blocks of the law as interventions in human behaviour, and hence are well suited in the context of empirical legal studies. The research design menu includes variables such as hypothetical decisions versus actual behaviour, experiments with or without full randomisation, pure or quasi, lab versus field, and natural experiments versus experiments that can be manipulated. Behavioural economics operates under conditions of incentive compatibility and the no-deception principle. In this article, the authors set out a research agenda for behavioural law and economics research, covering private law (consumer and contract law as well as liability and tort law), administrative law, and economic law.

Marin Coerts
Mr. Marin Coerts is PhD candidate, Faculty of Law at the Vrije Universiteit Amsterdam, The Netherlands.

Berber Laarman
Mr. dr. Berber Laarman is Assistant Professor, Faculty of Law at the Vrije Universiteit Amsterdam, The Netherlands.

Jacobien Rutgers
Prof. mr. dr. Jacobien Rutgers Professor of private law, Faculty of Law at the Vrije Universiteit Amsterdam, The Netherlands.

Wolf Sauter
Prof. mr. dr. drs. Wolf Sauter is Professor law markets and behavior, Faculty of Law at the Vrije Universiteit Amsterdam and expert at the Authority for Consumers & Markets (ACM), The Hague, The Netherlands.

Arjen van Witteloostuijn
Prof. dr. Arjen van Witteloostuijn is Dean of the School of Business and Economics at the Vrije Universiteit Amsterdam, The Netherlands and Professor at the Antwerp Management School, Antwerp, Belgium.

Access_open De podcast als toets binnen rechtsgeleerdheid

Keywords toetsing, podcast, rechtsgeleerdheid
Authors Willem Janssen and Dave van Toor
AbstractAuthor's information

    This contribution describes a teaching pilot of the School of Law at Utrecht University, in which students had to record a podcast as a final assessment in two courses. This way of assessing students seems to have potential, because presenting without visual support is a skill that is rarely practiced and assessed, even though it belongs to the standard skill set of most lawyers. The authors position podcasting as a form of assessment within the literature on the subject. They also discuss how the podcast as a form of assessment fits into the idea of constructive alignment. Finally, they share their experiences and those of students.

Willem Janssen
Dr. Willem Janssen is an Associate Professor of European and Dutch public procurement law, School of Law, Utrecht University, and a podcast host at BESTEK – Public Procurement Central.

Dave van Toor
Dr. Dave van Toor is an Assistant Professor of Criminal (Procedural) Law, School of Law, Willem Pompe Institute for Criminal Law and Criminology, Utrecht University.

Access_open Interdisciplinary Methodological Approaches to Desk-Based Socio-legal Human Rights Research

Keywords positionality, reflexivity, socio-legal human rights research, right to health
Authors Thomas Peck
AbstractAuthor's information

    As legal study adopts more interdisciplinary approaches and assimilates with other disciplines such as sociology, politics and business, there is a growing need to pay greater attention to the research methods and methodologies from across the academic spectrum. Doing so creates opportunities to borrow and employ methodological techniques and insights from disciplines across the spectrum of the social sciences. In this work I examine how socio-legal methodologies may be informed by approaches within the wider social sciences and explore how borrowed elements such as research ethics, reflexivity, and positionality, can be understood and utilised within interdisciplinary, desk-based, socio-legal research. I do so using the example of a project examining the human rights abuses of pharmaceutical companies. The project sits at the intersection of the fields of human rights (the right to health), socio-legal studies and ‘business and human rights’ research. It thus serves as a useful example of how those borrowed elements from the wider social sciences can be conceived of and utilised within interdisciplinary, desk-based, socio-legal research. This work may serve as an example to those looking to incorporate a more interdisciplinary approach towards the study of law using methodological techniques found across the social sciences.

Thomas Peck
Thomas Peck LLB, LLM, MA, is Postgraduate Researcher at Lancaster University, United Kingdom.

Access_open The Expanding Methodological Toolbox of the ECHR Scholar

Special Issue Progress in Legal Scholarship, Marnix Snel, Sanne Taekema & Gijs van Dijck (eds.)

Keywords ECHR, ECtHR, methods, legal progress
Authors Janneke Gerards, Elif Erken and Claire Loven
AbstractAuthor's information

    Scholars who set out to study the European Convention on Human Rights (ECHR or Convention) system will find an abundance in research methods to choose from. In the early years of the European Court of Human Rights (ECtHR or Court), the methodological toolbox of the ECHR scholar largely consisted of qualitative and classical-doctrinal methods to study the Court’s case law, as well as historical, philosophical and theoretical studies to contextualize the ECHR system. Today, these ‘traditional’ methods not only have evolved to reflect the enormous increase of, and scholarly interest in, the Court’s case law but have also been complemented by empirical qualitative and quantitative, statistical and machine learning research methods. This contribution traces these major developments in the methods applied to studying the Court. By providing a comprehensive discussion of the different approaches, including their application, value and potential weaknesses, this contribution helps scholars understand, use and learn from the rich methodological toolbox of the ECHR scholar.

Janneke Gerards
Prof. mr. Janneke Gerards is Professor of Fundamental Rights Law, Montaigne Centre for Rule of Law and Administration of Justice, Utrecht University, The Netherlands.

Elif Erken
Elif Erken is PhD candidate, Montaigne Centre for Rule of Law and Administration of Justice, Utrecht University, The Netherlands.

Claire Loven
Dr. Claire Loven is Assistant Professor, Montaigne Centre for Rule of Law and Administration of Justice, Utrecht University, The Netherlands.

Access_open Critical Thinking in Academic Legal Education

A Liberal Conception

Keywords critical thinking, academic legal education, legal skills training, social engagement
Authors Bart van Klink
AbstractAuthor's information

    Critical thinking is generally considered to be one of the central goals – if not the ultimate goal – of education. Critical thinking, as part of liberal learning, is done primarily for its own sake, for the sheer pleasure of thinking against the grain, exploring new ideas and thereby contributing to the development of scientific knowledge. The liberal conception of critical thinking is under threat, since education is nowadays turned into some form of social engagement. Increasingly, academic education is conceived in instrumental terms as a means to achieve some non-academic end: to create responsible ‘academic citizens’, who are committed to the values of diversity and inclusion and who are engaged in solving contemporary social problems. Against this tendency, this article defends a liberal conception of critical thinking in academic legal education and addresses three questions: (i) what is critical thinking? (ii) why do we need critical thinking? and (iii) how can we, as teachers, promote critical thinking in our students? Finally, it raises the question of whether a liberal conception of critical thinking rules out any kind of social engagement as pursued by universities in the present day.

Bart van Klink
Bart van Klink is Professor of Legal Methodology at Vrije Universiteit Amsterdam, The Netherlands.

Access_open Moot Court Competitions, Experimental Moot Courts and Documentary Role Plays

Keywords reenactment, moot courts, documentary theatre
Authors Wouter Werner
AbstractAuthor's information

    To be an international lawyer is to perform international law behavior. As Schechner has put it, ‘Performance means: never for the first time. It means for the second to the nth time. Performance is twice-behaved behavior’ (Schechner, 1985, p. 36). Moot courts are a classical way to teach students ‘twice-behaved legal behavior’. In international law, moot court competitions have proliferated lately. However, the format of the moot court is copied rather uncritically, and not much attention is devoted to other, more reflexive theatrical means. In this article I try to open up space for such critical thinking beyond moot courts. I study moot courts as a form of performance, as a re-enactment. This perspective on moot courts allows me to focus on one of the core questions brought up in existing studies on re-enactments: who or what is re-enacted in such role plays? The equally main question is whether it is possible to reenact court cases differently. In order to answer this question, I will explore two alternative forms of reenactment of international law behavior: experimental moot courts and documentary role-plays. I examine what sort of behavior, what sort of character is restored in these two other forms of role-play.

Wouter Werner
Wouter Werner is Professor international law at the Vrije Universiteit, Amsterdam, The Netherlands and extradorinary professor at the University of Curaçao.

Access_open Progress in Migration and Asylum Law scholarship – International, Intersectional, and Interdisciplinary

Special Issue Progress in Legal Scholarship, Marnix Snel, Sanne Taekema & Gijs van Dijck (eds.)

Keywords migration and asylum law, legal scholarship, multilevel governance intersectionality
Authors Mariana Gkliati, Tesseltje de Lange and Sandra Mantu
AbstractAuthor's information

    Migration and asylum are global phenomena. Yet they lack a universally accepted and applicable legal regulatory framework, which leads to fragmentation across different levels and fields of analysis. In this contribution, we focus on migration and asylum law (MAL) which we understand to be made up of national, regional and international laws as well as their implementation in practice. The aim of this article is to identify developments in the area of MAL and the scholarly voices that have contributed to ground-breaking legal scholarship. We approach the question of progress in MAL scholarship based on our combined expertise in human rights, refugee law and migration law and bring forward how, in these often-separate legal fields, similar progress has been made. We focus our discussion on three interactions that we consider to have changed the way in which legal scholarship addresses migration and asylum: interactions between national and other sources of law; interactions between different fields of law, crossing into human rights law, family law or labour law; and interactions with various empirical scholarships (section 3). Learning from sociology and anthropology scholarships, the intersection of social stratifications such as gender, race and ethnicity, and class is now firmly grounded in MAL scholarship, inspiring the methodological shift from black letter law to empirical legal studies.

Mariana Gkliati
Mariana Gkliati is Assistant Professor of Migration and Asylum Law, Tilburg University, Tilburg, The Netherlands.

Tesseltje de Lange
Tesseltje de Lange is Professor of European Migration Law, Radboud University, Nijmegen, The Netherlands.

Sandra Mantu
Sandra Mantu is Assistant Professor of Sociology of Law and Migration Law, Radboud University, Nijmegen, The Netherlands.

Access_open What Counts as Progress in Criminal Law Scholarship?

Special Issue Progress in Legal Scholarship, Marnix Snel, Sanne Taekema & Gijs van Dijck (eds.)

Authors Jørn Jacobsen
AbstractAuthor's information

    The article discusses what should be considered as ‘progress’ in criminal law scholarship, as a legal scholarly discipline. What is considered progress depends on one’s ideas about the aim(s) of a scholarly discipline and how it should develop to better achieve that aim. Criminal law scholarship is, for its part, characterized by its study of positive criminal law from a knowledge point of view, one that puts criminal law scholarship in close contact with the philosophy of criminal law. At the same time, positive criminal law must be subjected to this perspective. As such, while criminal law scholarship may progress in many ways, the article claims particular importance to what is called ‘theoretical integration’. This refers to the operation of bringing aspects of positive law into the knowledge perspective of criminal law scholarship, to subject it to study. The article exemplifies the value of doing so by three works from contemporary criminal law scholarship.

Jørn Jacobsen
Jørn Jacobsen is professor at the Faculty of Law at the University of Bergen, Norway.

Access_open Turtles All the Way Down? Progress in EU Law Scholarship

Special Issue Progress in Legal Scholarship, Marnix Snel, Sanne Taekema & Gijs van Dijck (eds.)

Keywords progress, innovation, EU law, scholarship
Authors Henri de Waele
AbstractAuthor's information

    European Union (EU) law, with a history of approximately 60 years, remains one of the younger legal disciplines around the world. The scholarship in this field initially focused on the development of the European Economic Community and its common market, gradually branching out, in tandem with the ever-expanding reach of the relevant rules. The number of books and journals has grown exponentially, with novel genres like blogs and podcasts recently gaining in popularity too. Increases in size or quantity should, however, not be automatically equated with the notion of ‘progress’ as such. For a sound measuring of progress, the key question that needs to be answered is the extent to which the knowledge base has been advanced, and whether genuinely superior insights have been acquired over the course of time. In EU law scholarship, these issues are closely connected to the general tone and objectives of the leading studies, which can be seen to have evolved significantly. The current article zooms in on three publications from the 2010-2020 period, discussing how they fit into the overall picture, indicating in what way the progress label may fruitfully be applied to these pieces, and hereby also reflecting on how they are believed to have exerted a marked influence on the work of subsequent authors.

Henri de Waele
Professor dr. Henri C.F.J.A. de Waele is Professor of International and European Law at the Research Centre for State and Law, Radboud University Nijmegen, The Netherlands, Visiting Professor, Faculty of Laws at the University of Antwerp, Belgium and Senior Fellow at the Centre for European Integration Studies, University of Bonn, Germany.

Access_open Progress in Legal Methodology – A Methodological Assessment of Six PhD Theses

Special Issue Progress in Legal Scholarship, Marnix Snel, Sanne Taekema & Gijs van Dijck (eds.)

Keywords legal methodology, legal scholarship, methodological justification, normative framework
Authors Sanne Taekema and Bart van Klink
AbstractAuthor's information

    In this article, the question is raised to what extent the methodology debate in legal scholarship has improved the practice by PhD researchers of justifying their methodology. Over the past twenty years, there has been much more consideration and discussion of legal methods, especially in Dutch academia. Taking this Dutch debate as a starting point, Taekema and Van Klink argue that it has led to a normative framework with which the methodology of legal research can be assessed. Formulating a set of topics and questions that form the core of this framework, they apply it to a set of six fairly recent PhD dissertations. Building on these cases, they observe that some progress is made from a methodological point of view, compared with the situation described by Tijssen in his PhD thesis from 2006. Taekema and Van Klink conclude, however, that the methodology debate appears not to have led to a significantly better practice of methodological justification, at least not yet on all assessment criteria. The normative framework of a dissertation, for instance, still deserves attention.

Sanne Taekema
Sanne Taekema is Professor of Legal Theory, Erasmus University Rotterdam, The Netherlands.

Bart van Klink
Bart van Klink is Professor of Legal Methodology, Vrije Universiteit Amsterdam, The Netherlands.

Access_open Quality, Methodology, and Politics in Doctrinal Legal Scholarship

Keywords doctrinal research, quality, methodology
Authors Rob van Gestel
AbstractAuthor's information

    Doctrinal legal scholarship is the oldest form of academic legal research but the quality criteria and methodological ground rules for this type of research have always remained rather implicit. This is increasingly problematic in a ‘post-truth era’ in which academic research is being put under a magnifying glass. Although it is certainly not impossible to make the quality standards more explicit and to require a higher degree of methodological accountability, this is unlikely to happen in the short run because of certain politics in legal academia. These feed the fear of many law school managers to distance legal scholarship too much from legal practice because that may hurt the future prospects of their law students. At the same time, though, law schools need to worry about the fact that not making the quality standards and methodology of doctrinal research more explicit could make legal scholars lose credibility towards other academic disciplines and the larger public.

Rob van Gestel
Prof. dr. Rob van Gestel is professor of theory and methods of regulation at Tilburg University and professor of methodology of legal research at KU Leuven.