Legal Scholarship

To ask the question, “Does evidence law matter?,” is often to assume that some sets or groups of people believe it is important while others are challenging that view.  However, another assumption regarding the nature of this question is possible—that the question is asked because legal academics believe that evidence law both does and does not matter, and that those academics also believe that these are irreconcilable beliefs.  What is of particular interest is how legal academics reached this point and why they believe that evidence law both does and does not matter. 

Consideration of these aspects of evidence law scholarship and study reveals that evidence law can be understood as something both rational, irrational, and non-rational.  It can be perceived as permitting practitioners and scholars to both accommodate paradox and accept the conflict of an abstract rule of law imposed by “concrete” persons.  This stands at odds with progressive reform efforts which attempt to define, codify, and ultimately reconcile the inherently dichotomous nature of evidence law.  In order to achieve real progress in the area of evidentiary reform, the idea of progress will have to be abandoned.

http://elibrary.steiner-verlag.de/legal-scholarship-and-the-subject-matter-of-jurisprudence.html

In this paper I call attention to the fact that there is a remarkable difference between that which Anglo-American jurisprudents more or less unanimously regard as their subject matter (namely, law and the related notions of morality, authority, coercion, etc.) and that which prominent Continental writers have emphasized as one of the main topics for jurisprudential discussion. In Continental Europe, legal philosophers have often directed their attention to something quite specific: not law or any of the aforementioned law-related phenomena, but the study of law, or legal scholarship. In particular, Continental writers have been interested in legal scholarship as it is characteristically produced by law teachers or academic lawyers. Some phrases that have been used to describe the relevant type of scholarship are “doctrinal legal scholarship”, “legal dogmatics”, “la doctrine”, and “legal science (in its narrow and proper sense)”.
This paper is structured as follows. Section 2 gives reasons why Anglo-American legal theorists should keep their minds open to the idea that jurisprudence may take the doctrinal study of law as its subject matter. The claim is not that Anglo-American authors should go so far as to substitute doctrinal legal scholarship for their currently preferred jurisprudential topics. The claim is rather (i) that they should not forget, at the risk of alienating their Continental counterparts, that writers in that tradition have often focused on doctrinal scholarship, and (ii) that Anglo-American authors may benefit from dedicating more of their own attention to the doctrinal study of law even while maintaining their commitment to the idea that law (as distinct from the study of law) is the principal or ultimate subject matter of jurisprudence. Section 3 takes the time to explain in more detail what doctrinal legal scholarship is, and thereby engages in precisely the type of jurisprudential inquiry that Section 2 is out to promote. Section 4 contains some brief concluding remarks.

Resumen: Este trabajo articula una serie de reflexiones epistemológicas del autor partiendo de su experiencia particular en el campo del Derecho del Trabajo y de la Seguridad Social, que se pretenden aplicar a cualquier indagación académica en las áreas dedicadas al estudio del Derecho Positivo. El discurso parte de la consideración de la Ciencia Jurídica como una disciplina basada en la " comprensión " y condicionada por el " círculo hermenéutico ". Se asume un realismo jurídico moderado a partir del cual se tratan de integrar la " perspectiva externa " y la perspectiva " interna " del Derecho, dedicándose atención a la incorporación de " valores " al discurso del investigador, así como a los problemas que implica el estudio de la práctica jurídica y la formulación de enunciados socio-jurídicos. Abstract: This paper structures some epistemological reflections based on the author's particular experience in the field of Labor Law and Social Security Law, but they are intended to be applied to any kind of academic research regarding Positive Law. The starting point is the consideration of Legal Scholarship as a discipline focused on " understanding " and conditioned by the " hermeneutic circle ". The author assumes a moderate legal realism which intends to integrate the 'external' and 'internal' perspectives of the Law. This study also examines some other problems, as the incorporation of 'values' into the discourse of legal researchers and the analysis of legal practice in order to make socio-legal statements. Palabras clave: epistemología, metodología de investigación, investigación jurídica, estudios socio-jurídicos, hermenéutica.

The paper intervenes in the burgeoning field of comparative constitutionalism. Adopting comparative constitutional research on gay rights as a case study, it addresses the scholarship that comparative constitutionalists are producing, including the methodology and underlying assumptions about constitutions. It criticizes the mainstream comparative work on gay rights for its methodological thinness. Such research views constitutions as rule-based, privileging the judgments of constitutional courts over the practice of constitutionalism in other sites of governance. Foreign examples are pressed into service to bring about change in a designated place. From the vantage of an activist or advocate, the comparative constitutional work on gay rights that is prevalent now may prove misleading. Undue emphasis on courts as the site of constitutional change directs efforts to litigation away from other forms of activism. The literature also exaggerates the transferability of constitutional precedents by abstracting them from their discursive and cultural context. Moreover, the consistent selection of a handful of success stories from pioneering jurisdictions distracts from the potential lessons waiting in the failures, where reform efforts have foundered. From a scholar's perspective, the work is also unsatisfactory. Comparative constitutionalists, by accepting the current framing of debates, are failing to imagine transformations beyond same-sex marriage litigation and, consequently, falling short of their distinctive power as scholars. The paper argues for thick instrumentalism as a mode of comparative constitutional scholarship. Thick instrumentalism combines commitment to a justice project for gay rights with a richer, more discursive and culturally sensitive understanding of the multiple sites in which constitutional rights are respected - and infringed.

The comparative method is central to the developments of international arbitration. The recurrent epistemological debates on the nature of comparative law and its relationship with method have constituted a hindrance to the developments of the subject thus redefined. Starting from the premise that method is particular to the individual who sets to study an object comparatively, the initial question also determines the method to deploy. Therefore, an awareness of both the gaze of the comparison and methodology is necessary. Since the comparative method is not pan-disciplinary, the question of methodology is specifically addressed. The second salient development of this paper is concerned with the contribution comparative law can make to the teaching of international arbitration. Uses and misuses of the comparative method are underlined. Identifying the educational function of comparative law as one of its principal facets and arbitration as belonging to the realm of practice, the reconciliation of these two components seems difficult. A critical investigation on the treatment of comparative law in the literature is conducted before discussing shortcomings and needs in a conclusion on the direction scholarship should take to challenge comparative issues in international arbitration.

With a focus on Canada, but framed by similar and shared concerns emerging in the United States, this chapter examines the current status of what constitutes and defines academic freedom for academic librarians and the rights and the protections individual, professional academic librarians have with respect to the freedom of speech and expression of their views in speech and writing within and outside of their institutions. It reviews the historical background of academic freedom and librarianship in Canada, academic freedom language in collective agreements, rights legislation in Canada versus the United States as it pertains to academic librarianship, and rights statements supported by Canadian associations in the library field and associations representing members in post-secondary institutions. The implications of academic librarians using the new communication technologies and social media platforms, such as blogs and networking sites, with respect to academic freedom are examined, as well as, an overview of recent attacks on the academic freedom of academic librarians in the United States and Canada. Included in this analysis are the results of a survey of Canadian academic librarians, which examined attitudes about academic freedom, the external and internal factors which have an impact academic freedom, and the professional use of new communication technologies and social media platforms.

Abstract (D): Neuere Beispiele zeigen, wie Rechtswissenschaftler – und nicht nur Naturwissenschaftler, wie z.B. in jüngster Zeit Epidemiologen und Virologen  – aufgrund ihrer Expertise Einfluss auf die Politik nehmen können oder dies zumindest anstreben. Überraschend ist dies nicht: Sachverstand stellt eine von vielen möglichen Einflussquellen dar.  Wie dieser Beitrag darzulegen versucht, ist die Rechtswissenschaft eine ausgesprochen politiknahe Disziplin. Die Grenzen zwischen rechtswissenschaftlicher Expertise und politischer Beeinflussung sind fliessend: einerseits beeinflussen Rechtswissenschaftler(innen) die Politik, andererseits ist die rechtswissenschaftliche Forschung nicht frei von politischen Einflüssen. Entsprechend stellt sich die Frage, welche normativen Grundsätze die rechtswissenschaftliche Forschung leiten sollten bzw. ob und wie Forschende sich in den politischen Diskurs einbringen sollten. Dieser Problematik geht der vorliegende Aufsatz nach, wobei der Fokus auf die Schweiz gerichtet ist. In einem ersten Schritt wird erläutert, weshalb die Rechtswissenschaft eine besonders politiknahe Disziplin darstellt. Anschliessend wird eruiert, welche normativen Grundsätze das Verhältnis zwischen Rechtswissenschaft und Politik de lege lata regeln. Angesichts der zahlreichen offenen Fragen, welche die Schnittstelle zwischen rechtswissenschaftlicher Forschung und politischem Aktivismus aufwirft, wird abschliessend dafür plädiert, dass die rechtswissenschaftliche Forschungsgemeinschaft diesbezüglich klarere und präzisere Normen schafft. Dies würde es ihren Mitgliedern erlauben, sich in diesem Spannungsfeld zu orientieren und ihre Tätigkeit verantwortungsvoll und selbstkritisch auszuüben. Drei wichtige Ansätze zur Erreichung dieses Ziels bestehen in der flächendeckenden Einführung von Peer-Review-Verfahren, in der Verabschiedung von Normen zur Gutachtertätigkeit sowie in der Offenlegung von Interessenbindungen. In allen drei Fällen geht es darum, die Unabhängigkeit der Forschenden und zugleich auch die Autonomie der Rechtswissenschaft als Disziplin zu schützen.

Abstract (E): Recent examples show how legal scholars - and not only natural scientists, such as, recently, epidemiologists and virologists - can use their expertise to influence politics, or at least strive to do so. This is not surprising: expertise is one of many possible sources of influence. As this article attempts to show, legal research is a  discipline that is particularly close to politics. The boundaries between legal expertise and political influence are fluid: on the one hand, legal scholars influence politics; on the other hand, legal research is not free of political influence. Accordingly, the question arises as to which normative principles should guide legal research, and whether and how researchers should engage in political discourse. The present article examines this problem by focusing mainly on Switzerland. In a first step, I explain why legal research as a discipline is particularly close to politics. Subsequently, I identify the normative principles that govern the relationship between legal research and politics de lege lata. In view of the numerous open questions raised by the interface between legal research and political activism, in the final section I argue that the legal scholarly community should create clearer and more precise norms in this regard. This would allow its members to orient themselves in this field of tension and to carry out their work in a responsible and self-critical manner. Three important approaches to achieving this goal are the widespread introduction of peer review procedures, the adoption of standards as regards expert opinions, and the disclosure of interest ties. In all three cases, the aim should be to protect the independence of legal researchers and, at the same time, the autonomy of legal research as a scientific discipline.

Both Richard Weisberg and James Boyd White are eminent figures in the academic field of law and literature.  As lines between philosophy and literature blur, the stance of “judgment” becomes more like a reflective aesthetic evaluation than a critique through formal logic.  Law is, as Weisberg and White agree, more art than science.  Yet, for all their contributions to the study of law, including their ostensibly shared realm of mediation, the two create a combative, hierarchic tone of discourse by the near-total exclusion of women from their texts. 

Law as conversation is not primarily war through or with words.  Rather, it is the free yet necessary activity of community-weaving among people of profound differences.  As such, a new timbre of conversation, a new openness, must be spoken for in the study of law.  Among the always emerging differences among persons, men are as mysterious and irresistible to women as some men have recognized women to be; and if men could remember both the irresistible part and the mystery, and would open the existing public conversation, they might critique and pointedly ignore each other less violently, and enjoy a new richer company.

On its 50th anniversary, this paper argues for revising the accepted reading of Roncarelli v. Duplessis. Accounts by which Rand J. defended the rule of law while the dissenters were indifferent to it mischaracterize the judgment. Rand J.'s judgment is bolder and less explicit than is typically supposed: his treatment of the notice requirement constitutes part of his defence of the rule of law. Fauteux J.'s dissent enacts a plausible understanding of the judge's role within the rule of law. Disagreement on the overlooked procedural issue is best viewed as fully internal to the rule of law. The judgment's relevance for rule-of-law scholars is its exemplification of the possibility for rule-of-law impulses to conflict, making it a much richer and more interesting text. Scholars' dismissiveness towards the procedural issue reveals an unsatisfactory view on the part of legal scholars, one by which judges simply apply the rule of law, rather than being also themselves constrained by it. Their failure to recognize Rand J.’s treatment of the procedural rule as a key part of his performance suggests the need for rule-of-law scholars - reading as both philosophers and lawyers - to include the technicalities within the judicial conduct of interest to them.

Esta Tese defende que juristas internacionais brasileiros constituem uma comunidade acadêmico-profissional dotada de elementos identificadores e específicos da matéria. Utilizando a metáfora de Oscar Schachter (“Escola Invisível de juristas internacionais”) para descrever a comunidade profissional de Direito Internacional – que, dedicada a um projeto intelectual comum no plano acadêmico e profissional, seria dotada de influência decisiva em esferas de governo – serão analisados alguns elementos da atuação de juristas internacionais brasileiros, visando aferir a influência recíproca da atividade acadêmica nos canais oficiais do Estado, espaços de comunicação e colaboração científica e acadêmica sobre Direito Internacional e impacto da atuação em demandas envolvendo o país na jurisprudência de sistema regional de Direitos Humanos. Ao final, buscar-se-á verificar se esses caracteres da atuação de juristas internacionais brasileiros podem ser interpretados como possuidores de um senso coletivo de propósito e, assim, caracterizando uma Escola Invisível dentre a comunidade profissional de Direito Internacional no Brasil.

Legal blogging is an emerging phenomenon in Quebec compared to other legal systems where it is has been a longstanding practice. The Quebec legal blogosphere now has around fifty active blogs which remain largely unknown to the legal community, the latter generally granting them no value. Yet, they are reliable tools for disseminating legal doctrine and case notes, which Quebec judges are now much less reluctant to employ.

Relying on foreign and Quebec examples, this article attempts to demonstrate how legal blogs can contribute not only to the dissemination of legal knowledge in an original way, but also serve to criticize and transform the law. To do so, this article first proposes to quickly draw a picture of the Quebec legal blogosphere. It follows up with a discussion about the nature and value of blogs’ contributions, and finishes by questioning the influence, actual or potential, of legal blogs on legal actors.

This article is primarily concerned with investigating whether and to what extent legal doctrine actually influences judicial decision-making process in Ukraine and others countries. It is concluded that legal doctrine not only assists judges, but somehow restricts their exercise of discretionary power.

espanolEste trabajo articula una serie de reflexiones epistemologicas del autor partiendo de su experiencia particular en el campo del Derecho del Trabajo y de la Seguridad Social, que se pretenden aplicar a cualquier indagacion academica en las areas dedicadas al estudio del Derecho Positivo. El discurso parte de la consideracion de la Ciencia Juridica como una disciplina basada en la “comprension” y condicionada por el “circulo hermeneutico”. Se asume un realismo juridico moderado a partir del cual se tratan de integrar la “perspectiva externa” y la perspectiva “interna” del Derecho, dedicandose atencion a la incorporacion de “valores” al discurso del investigador, asi como a los problemas que implica el estudio de la practica juridica y la formulacion de enunciados socio-juridicos EnglishThis paper structures some epistemological reflections based on the author’s particular experience in the field of Labor Law and Social Security Law, but they are intended to be applied to any ki...

Father, Son, and Constitution by Alexander Wohl is a major contribution to legal scholarship.  This dual biography focuses on two public figures, each of whom played a leading role in addressing the most challenging legal questions of their day.  The subjects of the book are Supreme Court Justice Tom C. Clark and his son Ramsey Clark, the most liberal attorney general in American history.  The Clarks’ stories are told against a backdrop of the continuing American struggle to find the proper balance between governmental power and individual liberty.

The public careers of Tom and Ramsey Clark were largely sequential, but sometimes overlapping.  Together, they spanned three-quarters of a century.  Thus, in following this saga of father and son, Wohl marches through a large sweep of American history, and traverses a gamut of wars, both military and metaphorical.  However, those controversies merely furnish the context.  The author’s attention is devoted principally to constitutional issues related to the Bill of Rights, and the ways in which Tom and Ramsey Clark frequently took center stage in shaping and deciding those debates.

There are two major challenges to writing about Tom and Ramsey Clark in the same volume.  The first formidable obstacle is the sheer number of events and persons that must be discussed.  The second is that, at times, the subjects are difficult to categorize.  It is impossible to quickly and confidently sketch the character and motivations of either man.  Wohl, however, expertly handles these obstacles, and, as such, Father, Son, and Constitution is well worth reading.  It should be part of every good library because it illuminates issues that are both important and timeless.

Legal doctrine is an integral part of any developed legal system, where class of professional lawyers has been formed, complex of special legal texts has been created and there are professional legal practices secluded from other spheres of social activity. At the same time, the degree, forms  and a legal doctrine intensity of influence on processes of state and law-making, the development of society as a whole depend on the state of  the development of the legal system, existing legal traditions and the character of the sources of law system. The legal doctrine is created, reconstituted, developed as the result of intellectual and creative efforts of the professional community of lawyers (primarily scientists-lawyers), that always are in the specific economic, legal, cultural and political conditions. Substantial filling of the results of scientific researches, necessity in them and implementation in legal practice one way or another depend on power, in particular, the existing state and political regime. These and relevant to them questions have not been investigated sufficiently till now in Ukrainian jurisprudence, are acquiring actuality for the Ukrainian legal system, large-scale reforms of which are to be provided on the scientific grounds. This, in its turn, causes the necessity in revision or reconsideration of the role and significance of scientific legal community in contemporary national state and society.

The main purpose of the article is conducting analysis of foreign and domestic (Soviet) experience of the interaction between the scientific community and power, revealing of peculiarities (intensity, form) of influence of the latter on a legal doctrine formation.

On the European continent attitude to public authorities and the scientific community legal doctrine has not always been positive: it had been changing from recognizing doctrine at the official level as source of law, for example, in Ancient Rome, until its denial in some periods. Sometimes authoritarian regimes had been trying to control, or even subordinate the development of scientific thought, educational and cultural space. At last, conclusions from the negative experience have been done and came the realization that such a policy is not only harmful but also dangerous. Today, in the western law orders the results of scientific research have been accepted by the state and legal practice in connection with deep, thorough and objective cognition of the essence of  the state-legal phenomena and processes and revealing of regularities of their origin and development. The basis of such researches are methodological pluralism, real scientific discussion, free exchange of ideas, which is a prerequisite of working out of effective and useful to society scientific conclusions and proposals. Only a productive dialogue between the public authorities and lawyers, the existence of a free market of ideas, freedom of scientific creativity, independence of the academic community which is to be recognized and protected by the state and it is under such conditions working out of effective and useful to society scientific provisions is possible. Such dialogue, as it is known, is possible only in the case when subjects interact on an equal partnership footing, excluding the service function of legal science and the implementation of it by representatives of «political orders».

If you analyze the Soviet period, the interaction between the scientific community and the state, which has always strictly controlled all spheres of socio-political and legal life (except for short phase of liberalization of state policy), resembling moving of one-way street. From time to time the street name has been changed, but the rules and basic approaches were without any changes. Adding, that government dictated (most frequently) to the science and its representatives which questions and problems must be investigated, what to be criticized and what ideas are to be supported and which to be denied and rejected.

Short papers have been relegated to secondary status primarily because of their length. But many scholarly papers of under 10,000 words have had monumental impact in legal thought. I argue for a reassessment of the short paper's value and offer some prescriptions for assimilating more openness to the short paper going forward.

This essay argues that comparative law is not and never will be a distinctive academic discipline. Various counter-arguments based on the alleged distinctiveness of comparative law’s (1) subject-matter, (2) methodology, (3) challenges, and (4) aims are identified and rejected. The essay concludes by arguing that comparative scholars should embrace the ordinariness of their scholarship. To the extent that comparative law is associated with a particular subject-matter, method, challenge, or aim its value will always be a matter for debate. By contrast, if comparative scholarship is just ordinary scholarship with more data (as I argue), its value is undeniable.

With a focus on Canada, but framed by similar and shared concerns emerging in the United States, this chapter examines the current status of what constitutes and defines academic freedom for academic librarians and the rights and the protections individual, professional academic librarians have with respect to the freedom of speech and expression of their views in speech and writing within and outside of their institutions. It reviews the historical background of academic freedom and librarianship in Canada, academic freedom language in collective agreements, rights legislation in Canada versus the United States as it pertains to academic librarianship, and rights statements supported by Canadian associations in the library field and associations representing members in post-secondary institutions. The implications of academic librarians using the new communication technologies and social media platforms, such as blogs and networking sites, with respect to academic freedom are examined, as well as, an overview of recent attacks on the academic freedom of academic librarians in the United States and Canada. Included in this analysis are the results of a survey of Canadian academic librarians, which examined attitudes about academic freedom, the external and internal factors which have an impact academic freedom, and the professional use of new communication technologies and social media platforms.

Sometimes the authors of law review articles engage in a bait-and-switch: they insert exaggerated claims of novelty or significance into their submission to student editors and then, after securing a satisfactory offer of publication, moderate those claims in drafts made available to colleagues and the public. By doing so, the authors manage to improve their chances at a desirable placement and avoid unscholarly claims before peers.

This symposium essay suggests that baiting and switching is unethical, and then discusses potential ways to address it.

Two camps have begun to emerge from the rich ferment in legal ethics teaching and scholarship over the last twenty years.  The first group, whose members might be termed “law-givers,” consists of those who view legal ethics as chiefly concerned with the identification, transmission, and enforcement of uniform standards governing the conduct of lawyers.  The second group—considerably smaller, but increasingly well-defined—might be called the “story-tellers.”  The story-tellers place a higher value on persons and context than on principles and procedures, and on the cultivation of a deeper, less mechanical sense of professionalism than detailed rules can provide.

Larry Dubin’s most recent educational videotape, Legal Heroes, brings him more firmly into the ranks of the legal ethics master story-tellers.  Reasonably short and fast-moving, the videotape is exceptionally well-planned, and it refreshes the spirit and nourishes the soul in the best tradition of story-telling.  The film focuses on three lawyers who elected to chart altruistic courses, and in the process secured not only important results but the admiration of their peers.  Often, attempting to reinforce positive professional images is not an easy sell; idealism is passe.  Nevertheless, Professor Dubin produces an effective and useful product.  Legal Heroes is a very positive film, designed to make lawyers and, more importantly, law students feel comfortable, even proud, of their choice of career, and reminds them that there can be much more to law practice than the law alone.