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“Valid Law” Methodology How can we make criminal law dogmatics objective?

DOI 10.25527/re.2023.10
Legal dogmatics of criminal law is a subject of inquiry in legal science, but its objectivity is a matter of debate. It might be seen as the presentation of subjective values by individual scholars, lacking objectivity. Others argue that objectivity can be achieved by selecting and presenting objectively correct dogmatic from legal texts. In another perspective, legal dogmatics is viewed as a description of the present status of effective criminal law, which could be considered objective. Legal Dogmatics and Objectivity in Germany and Japan In Germany, legal dogmatics of criminal law aims to interpret the criminal code systematically and normatively, without...
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Empirical legal research to test judicial decisions

DOI 10.25527/re.2023.04
In making legal judgements, Dutch courts regularly use so-called 'societal views'. For example, within criminal law 'socio-ethical acceptability' is used as a measure of whether sexual contact between minors is a crime or not. Within private law 'what is socially acceptable' is used as a criterion in tort law, and at the intersection of liability law and corporate law, societal views play a role in the question of whether a natural person's conduct can be imputed to the legal entity. However, although judges rely on views in society when making certain judgments, they rarely mention how or where they found those societal views, nor whether and how they investigated what exactly those societal views are. This raises the question of whether...
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A bridge over clashing waters? Empirical legal studies bridging structural and poststructural feminist standpoints in research

DOI 10.25527/re.2023.02
During my time as a master’s student in Sociology of Law, I often came across the pretense that combining structural- and post-structural feminist standpoints in research is a nearly impossible equation due to epistemological and ontological differences. A clear distinction is that post-structural feminism challenges heteronormativity and the male/female dichotomy that structural feminism illuminates. For example, structural feminists aim to illuminate men’s violence against women whilst post-structural feminists approach violence in a more gender-neutral way.  Thus, differences in structural- and post-structural feminist...
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Scopus/Scimago: Useless for Studying Legal Research! An Empirical Assessment of Misclassification Rates in a Popular Scientometric Data Source

DOI 10.25527/re.2022.02
Empirical research on citation patterns and scholarly reputation in academic research ("scientometrics") frequently relies on a commercial database called Scopus. Scientometric studies routinely analyse the contents of this database as representing the universe of research articles in various academic fields, including legal research. We reviewed the publically available data on German law journals and found that hardly ten percent of them are classified correctly. Even our most charitable count puts the misclassification rate at around 60 percent. In scientometrically studies regarding legal research, the use of Scopus...
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Empirical Tax Research in Germany Federal Government Plans to Establish New Institute (IfeS)

DOI 10.25527/re.2021.09
Tax research is among the lively fields of empirical interaction between law and economic sciences. One of the authors' faculty supervisor in the US, Jacob Goldin, quite literally made his career off of well-designed large scale field experiments in tax compliance research such as the one published in the National Tax Journal. German legal scholars also study tax compliance using experimental methods. Yet, there is still a dearth of large-scale datasets available for empirical tax research. This is why the German government has now resolved to establish a new institute for empirical tax research called Institut für empirische Steuerforschung (IfeS). Members...
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Berkeley 12 – 0 Stanford International Pedigrees of Private Law Professors in Germany

DOI 10.25527/re.2021.07
The European Football Championship of 2021 is afoot. Many people flock to watch the games - especially today, as the German team competes against Hungary, just hours after German chancellor Merkel publically decried a discriminatory Hungarian law. On days like these, it is hard to know whether politics or football take center-stage. But there's yet another fascinating game that I happened to observe recently: In a paper that got published a few days ago in the German law journal Archiv für die civilistische Praxis ("Archive of Civil Law Studies"), I studied the world of German professors of private law and undertook "An Empirical Inquiry into their...
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Continuity in the Federal Constitutional Court?

DOI 10.25527/re.2020.04
Abstract | The election of new judges to the German Federal Constitutional Court has seen multiple delays in recent years. While we observe increasing debates among politicians when choosing candidates for the bench the public’s opinion with regard to nominees seems to play a minor role. We used a survey-experiment to assess how the German public evaluates traits of judicial nominees. In this post we apply our findings to characteristics of current nominees who may follow on Andreas Voßkuhle and Johannes Masing. The results suggest that all nominees have traits which make them adequate successors of the leaving judges. Moreover, to enhance the courts public standing decision-makers should highlight the judicial qualities of nominees rather than...
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Governing through the Primacy of Science

DOI 10.25527/re.2020.03
Abstract | German politicians trust science's primacy to fight COVID-19. From a regulatory perspective, however, this proves problematic insofar as science operates under deficient and dynamic empirical data, thereby making its proposals subject to constant change. Whilst this can be dangerous for legal certainty, prudentially transferring science's methods to regulation can make it ...
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The Forbidden Tree of Knowledge France restricts predictive analytics for judicial decisions

DOI 10.25527/re.2019.09
The problem with new methods and sources of knowledge is that these can bring forth facts that do not always please all those involved. But to prohibit the pursuit for knowledge and insight is rather absurd in a transparent state at the latest after the Age of Enlightenment. In France this seems to be seen differently. In fact, France has recently adopted a law reforming the judicial system. Article 33 of the law has caused an international controversy. It reads literally: "Les données d'identité des magistrats et des membres du greffe ne peuvent faire l'objet d'une réutilisation ayant pour objet ou pour effet d'évaluer, d'analyser, de comparer ou de...
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The Hindsight Bias On the problem of ex ante knowledge in negligence assessment ex post

DOI 10.25527/re.2019.08
Abstract: Judging negligence correctly is notoriously difficult once a catastrophic result is known to the individual making the judgement. Due to a phenomenon called hindsight bias, the events leading up to a specific outcome seem significantly more self-evident in hindsight than they did moving forward in time. In a forensic setting, judges are expected by law to ponder foreseeability ex ante, even though the result is presented in the file. Not only are legal practitioners typically unaware of the hindsight bias; disappointingly, empirical research suggests that even warning them of it does little to circumvent its effects. The main article is only...
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Why lab experiments are a powerful tool for legal scholarship

DOI 10.25527/re.2019.07
Many questions formulated by legal scholars address a causal relationship between the law and human behavior: What is the effect of “teaser rates” on credit card debt? Will delegation of decision-making diminish the “stickiness of default rules”? Does a key information document improve retail investors’ understanding of investment products? Behavioral law and economics can help answering these questions, as it provides predictions about people’s behavior in a legally relevant context. Its increasing use in policy-making and law calls for an understanding of how these predictions are formulated and tested. Laboratory experiments are an important empirical method employed to this end. Thus, it comes at no surprise that...
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Related Party Transactions of Listed Companies in Germany

DOI 10.25527/re.2019.06
Common law jurisdictions pride themselves on having a keen sense of fiduciary relationships and the perils of self-dealing. While the UK’s influence on EU law may recede in the long run, it has left another lasting impression in the EU’s revised Shareholder Rights Directive that regulates corporate governance aspects of European listed companies. Besides encouraging stewardship by institutional investors and ensuring shareholders a „vote on pay“, the directive introduces a new set of provisions on the company’s dealings with related parties—parents, sibling entities, controlled and associated entities, and managers. The rules on related party transactions (RPTs) are evidently inspired by, and modelled on, Chapter 11 of the UK’s Listing...
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Standardization of State Exams or Competition in the Federal System?

DOI 10.25527/re.2019.05
Abstract | German legal education is in part determined by federal law and in part by the local law of the German states. In order to ensure the compatibility of the examinations the Conference of the Ministers of Justice has discussed a variety of measures. Unfortunately, this discussion was not accompanied by empirical research on the existence and impact of such differences. However, a statistical study about students moving from one state to the other gives, at least, hints about this question. Together with other available data on the university part of the State Examination the study provides arguments why the current differences between the legal education statutes of the German states are less important than differences in the...
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Is There a Relationship Between Shareholder Protection and Stock Market Development?

DOI 10.25527/re.2019.04
Does the quality of legal and other institutions make a difference to economic development and growth? In their very well-known studies of the relation between law and finance, Andrei Shleifer and his collaborators (in particular Rafael La Porta and Simeon Djankov) found evidence to support this claim. Their econometric analysis showed that higher levels of shareholder and creditor protection were correlated with increased financial development. This work became highly influential among researchers and policy-makers. Since the mid-1990s, the widespread belief has been that strengthening share-holder and creditor rights will lead to improved financial outcomes. This view became a mainstay of global policy initiatives, including...
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Are apex court judges politically biased?

DOI 10.25527/re.2019.03
The question whether judges are politically biased is highly disputed. Some consider it a heresy even to ask the question, while others believe it to be a self-evident truism. If we look at how controversial the nomination procedures for new justices to the U.S. Supreme Court are, we see that most participants in the U.S. political process at least believe that justices are influenced by their political ideology. There is some empirical evidence confirming this belief. The seminal contribution on this issue is a study by Jeffrey Segal and Albert Cover. The authors construct an ideology score for Supreme Court Justices, which is based on newspaper reports regarding these judges prior to their election to the Court. The study finds a high correlation between...
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Augmented Doctrinal Reality Exploring and Analysing Judicial Discourse with Computer-Aided Methods

DOI 10.25527/re.2019.02
When I discuss empirical studies of law with legal scholars and law students in Europe, whether is in Germany, Belgium, France or Italy, one comment I often hear is “but this is not law”.  This is a remark worth exploring, because it tells us something important about the way academic lawyers conceive of their discipline and its object of study. I tell my bachelor students that there are basically two ways to approach the study of law. One is as product of society and as instrument of social control. Much of the political science law and courts literature as well as the law & economics literature follow this approach. These literatures are concerned with...
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What do Lawyers Have to Count (on)? On the Role of Lawʼs|Empirics in European Legal Studies

DOI 10.25527/re.2019.01
Abstract | In Continental Europe, traditional legal thinking is rather remote from empirical research and statistics. Nonetheless lawyers have been trying for more than one hundred years to fuse knowledge about society’s “isʼs and oughts”. Their attempts had to continuously adapt to changes in the dominant intellectual paradigms, and are now framed as discursive argumentation about different normatively infused descriptions of the world. As such, empirical discourse is indispensable for the law and will shape legal education in the future. Complex legal realities require statistical legal thinking. The new academic blog Law's|Empirics seeks to document...
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