News 2012
Sixth Topics Workshop of the Max Planck "Uncertainty School" at ESL Policy Implications of Law and Behavior
August 2012 – This year BACT will host the Topics Workshop of the International Max Planck Research School on Adapting Behavior in a Fundamentally Uncertain World ("Uncertainty School"). The Topics Workshop (Erasmus University Rotterdam, October 15-19) is an opportunity for PhD-students to get in touch with cut-edge researchers in the field by presenting parts of their thesis and take part in in-depth discussions. Keynote lectures will be given by: Vincent Buskens, Arjo Klamer, Jonathan Klick, Jeffrey Rachlinski and Avishalom Tor.
While the Topics Workshop is part of the Max Planck Research School it is also open for PhD-students who are affiliated with Erasmus University. This is part of BACT"s ongoing efforts to do not only top-level research, but also to provide students opportunities to improve their research skills.
The International Max Planck Research School on Adapting Behavior in a Fundamentally Uncertain World combines approaches from Economics, Law and Psychology to explain human decisions under uncertainty more effectively and to better design institutional responses. Its executive director is Prof. Dr. Christoph Engel, who currently holds the Sanders Wisselleerstoel of the Erasmus School of Law. More information on the Max Planck Research School can be found here. Interested PhD-students from Erasmus University Rotterdam may contact Mrs. Marianne Breijer (breijer@law.eur.nl). Please know that a limited number of places is available. For additional information click here.
Prof. Christoph Engel appointed Chair “Sanders Wisselleerstoel”
July 2012 – Professor Christoph Engel has accepted the Erasmus School of Law “Sanders Wisselleerstoel”. Prof. Engel is Director of the Max Planck Institute for Research on Public Goods (Bonn). His work is thoroughly interdisciplinary, combining law with economics and psychology. Prof. Engel has built the only German lab for experimental law and economics, and one of the few worldwide. His work has been published by first rate journals in law (like the Journal of Empirical Legal Studies, and the Journal of Competition Law and Economics) and economics (like Experimental Economics, the Journal of Institutional and Theoretical Economics, and the Journal of Institutional Economics). Prof. Engels ranks high on SSRN (197 worldwide, rank 4 among German authors). Furthermore, he is one of the founders of the International Max Planck Research School Adapting Behaviour in a Fundamentally Uncertain World, and is chairman elect. Prof. Engel joins the Erasmus School of Law interdisciplinary research team ‘Behavioural Approaches to Contract and Tort’ to further strengthen the group’s empirical research efforts into behaviour of individuals, institutions and organisations.
KNAW Colloquium “Civil Justice: Thinking and Deciding by Civil Courts” (5 – 6 July 2012 Amsterdam, The Netherlands)
July 2012 – This invitational conference, organised by Jeff Rachlinski, Ivo Giesen (Utrecht) Willem van Boom , and hosted and financed by the Royal Netherlands Academy of Arts and Sciences KNAW, focused on the empirical-legal dimensions concerning the cognitive processes in the judiciary and how the courts’ thinking and deciding in civil cases is shaped and moulded. Contributions focused on the methodology of using empirical insights in our understanding of the judicial decision-making process as well as (on a more practical level) on what we know and do not know about cognitive processes in civil adjudicators, how potential pitfalls could be avoided and how procedural restraints may either mitigate or amplify biases and heuristics in the adjudication process. Speakers included Dan Kahan (Yale), Mandeep Dhami (Surrey), Tracey George (Vanderbilt), Christoph Engel (Max Planck Bonn, ESL), Reid Hastie (Chicago Booth), Theodore Eisenberg (Cornell), Chris Guthrie (Vanderbilt), Carsten de Dreu (Amsterdam UvA), Gerhard Wagner (Bonn, ESL), Riël Vermunt (Leiden), Raimond Giard (ESL).
Prof. Heine awarded Jean Monnet Chair
June 2012 – Prof. Klaus Heine has been awarded a Jean Monnet Chair of Economic Analysis of European Law. In the academic community, the Jean Monnet label is recognized as a sign of excellence. It was established by the European Commission as an initiative to promote teaching, research and reflection in the field of European integration studies in higher education institutions. The Jean Monnet Chair of Economic Analysis of European Law will strengthen teaching and research on European integration at Erasmus University and will make European integration studies more accessible for students and civil society groups.
Master Dissertation Project “Hampers, Hitches and Holdups in Private Law”
June 2012 - On June 22, some sixteen LLM students specialising in private law held their dissertation presentations before an audience of family, friends and staff. Their presentations marked the conclusion of the Civil Law Department’s Annual Master Dissertation Project. This project offers promising LLM students in private law the opportunity to write their theses in the form of a book chapter. This year’s theme focuses on the effectiveness and side effects of various private law constructs and formalities, the underlying causes thereof and how the relevant legal framework can be ameliorated to better serve its purposes. The forthcoming book on hampers, hitches and holdups in private law is edited by this year’s project supervisors Mark Tuil, Martijn van Kogelenberg and Willem van Boom. The volume will appear in the faculty’s Young Masters series.
Resolving Mass Disputes: ADR and Settlement of Mass Claims
June 2012 – On June 26-27, 2012, we organised a conference on the occasion of the inaugural lectures of professors Christopher Hodges and Astrid Stadler. This conference examined two emerging responses to mass issues that are currently confronting European member States. The problem of how to respond to multiple small claims by consumers, which has challenged court systems in Europe, has found a possible solution in ‘Consumer Alternative Dispute Resolution’ (CADR). The first part of the conference presented research findings on how CADR systems operate in different member States, and on current European Commission legislative proposals to build national CADR systems that have full coverage for all types of consumer-to-business disputes, supported by an ODR (online dispute resolution) platform. CADR systems appear to offer a genuine alternative pathway for resolving small disputes, and raise questions of how they should be designed so as to provide feedback that can have regulatory function on traders’ behavior, and what, if any, residual role courts may play. Speakers include leading ombudsmen and experts.
Mass claims cases seldom proceed as far as a final court judgment. Even though the high number of claimants and the complexity of legal and factual issues make negotiations difficult, settlements are achieved very often. The Dutch Collective Mass Claims Settlement Act encourages out-of-court settlement by providing an opt-out court proceeding to declare settlements legally binding for all persons affected by mass damages and it turned out to be a very successful tool for handling large international securities cases and other mass claims. However, some important questions of international jurisdiction and recognition are still unsolved.
Mass settlements are a challenge for both, lawyers and courts. Existing group litigation acts in Europe require court approval of mass settlements following the US class action rules. This puts judges in a difficult position as legal regulations often provide only vague and abstract criteria to be applied. Courts must have information sufficient to consider the proposed settlement fairly. To what extent should the absent group members participate or comment the proposed settlement? In multinational mass claims, courts may have to compare the terms of the settlement with the potential outcome of litigation despite the fact that a multiplicity of substantive laws has to be applied.
Various speakers addressed these aspects of CADR. Contributors included Dr Iris Benöhr, CSLS University of Oxford; Dr. Naomi Creutzfeldt-Banda, CSLS University of Oxford; Dr Stefaan Voet, University of Ghent; Jolanda Girzl, Director of ECC-SE; Dr. Julia Hörnle, Queen Mary, London University; Lewis Shand Smith, Ombudsman, Ombudsman Service, UK; Robert W. Hammesfahr, Managing Director, Executive Claims Counsel, Swiss Re; Prof. Ianika Tzankova, Tilburg University; Professor Deborah Hensler, Stanford University/Tilburg University.
ELS at ESL
April 2012 – The informal staff seminar entitled ‘Empirical Legal Studies at Erasmus School of Law’ will take place on April 11th. Scholars at ESL conduct all types of research, ranging from legal theory to comparative law, law and economics and black-letter law. This rich tradition of multifarious methodology is to be honoured and preserved. Moreover, another gem has been recently added to the family of legal methods: Empirical Legal Studies. The criminology department has a rich and long tradition in empirical research. Recently, others have followed suit and started looking into how law really works, affects and steers behaviour and how people think and decide in the shadow of the law. In terms of ELS, ESL has chairs focusing on a range of areas, such as empiricism in sociology of law (Huls, Stoter), law and psychology (Rassin), criminology (Van de Bunt, Van Swaaningen, Staring) and forensic psychiatry (Van Marle). Moreover, three chairs in Empirical Legal Studies were were added: Prof. V.W. Buskens, Prof. J. Klick and Prof. J.J. Rachlinski.
This informal staff seminar aims to bring together faculty members from various disciplines to discuss the practicalities of their empirical work, the challenges they face and the day-to-day issues they encounter. We invite you to submit a brief proposal on a topic you would like to address. Talks can be about virtually anything in the area of ELS, such as the latest survey you have conducted, the most recent findings from qualitative fieldwork, the methodological conundrums you are encountering, etc. We will allot and arrange the available slots on the basis of the submissions.
Guest Lectures Prof. Jonathan Klick
April 2012 – The guest lecture series of Prof. Jonathan Klick took place from Monday 2 April till
Thursday 5. Jonathan Klick (1975) is professor of law at the 
University of Pennsylvania Law School and has been appointed as part-time Erasmus Chair of Empirical Legal Studies at Erasmus School of Law. Prof. Klick is both a lawyer and economist, specialising in empirical law and economics, and has ample experience in the methodology of empirical law and economics, which provides invaluable input for accomplishing the empirical aspirations of Erasmus School of Law research.
The course is an introduction to statistical methods used in law and economics and empirical legal studies. The course ensures that the participants can be critical consumers of empirical research used in modern social science scholarship, and offers a starting point for attendees to perform their own empirical law and economics research.
Seminar on the occasion of the inaugural lecture of Gerhard Wagner
March 2012 – On 29 March a seminar took place on the occasion of the inaugural lecture of Gerhard Wagner, entitled ‘Competition Between Civil Justice Systems. The Market for Dispute Resolution Services’.
Traditionally, adjudication is classified as a governmental function rather than a service provided by civil servants. Since 1979, however, when Landes and Posner published their paper on ‘Adjudication as a Private Good’ in the 8th volume of the Journal of Legal Studies, it has become increasingly common to think of adjudication as a service like any other, offered in markets. States in Europe and the US have reacted to challenges from arbitral institutions and neighbouring jurisdictions by reforming their judicial systems in order to make them more attractive to litigants. Some of these efforts have proved quite successful, stimulating a process that bears obvious parallels to features characteristic of competitive markets in goods and services. However, the theoretical and empirical foundations of competition in the litigation market have not been explored, and the question of whether the outcomes of competition are desirable has not been answered systematically. The discussion that looms large in the area of corporate law, regarding whether competition in the legal arena results in a race to the top or a race to the bottom, has never reached the present topic. This leaves lawmakers at the national and supranational levels with few clues as to whether they should think of ways to stimulate competition or strategies to fence it in.
In 2011, Prof. Wagner was appointed professor in the Erasmus Chair of Fundamentals of Private Law. He also holds a chair in European Private Law and Civil Procedure at the University of Bonn in Germany. He serves as director of the Institute of Civil Procedure and Dispute Resolution and is co-director of the Centre of Advanced Studies in Law and Economics. In 2010/11 he was visiting professor of law at the University of Chicago Law School. He has published widely on issues involving the choice between compensation systems, liability regimes, international arbitration, European civil procedure, mediation, negotiation and other modes of alternative dispute resolution.
Prof. Anthony Ogus preceded Prof. Wagner as chair (2008–2011).
Willem van Boom appointed professor at Durham Law School
March 2012 – Starting March 2012, Willem van Boom will hold a part-time professorship at Durham Law School (UK), where he will teach and conduct research in comparative contracts, liability, insurance, and property law. Durham Law School is consistently rated one of the top UK law schools and was rated as the fourth-best law school in the latest UK research assessment. Willem van Boom will remain as a part-time professor at Erasmus School of Law and will therefore hold positions at both Rotterdam and Durham.
Inaugural lecture Martijn Scheltema
February 2012 – On Friday the 17th of February, Martijn Scheltema delivered his inaugural lecture, entitled ‘Effectiveness of private regulation: can it be measured?’ Martijn Scheltema (1967) has been appointed Chair of Enforcement Issues in Private Law at Erasmus School of Law in Rotterdam. Scheltema also is attorney at law/partner at Pels Rijcken & Droogleever Fortuijn, a law firm based in The Hague.
The prerogative of government regulation has gone. In an international context, rules regarding business and communities are set in a melting pot of government and private regulation. The influence of private regulation is growing considerably and appears in many forms.
All of this has made it important to assess the effectiveness of private regulation (also as an alternative to government regulation). This may help businesses decide whether to participate in private regulatory initiatives and may also help private rule-making bodies use effectiveness indicators to enact better regulation. There is a need for such indicators. Government regulation has a long tradition, which private regulation lacks. Beside this, governments could use such indicators to assess the existence of private regulation that meets their purposes, which could reduce the need for government intervention.
Measuring effectiveness is not easy; it calls for an empirical approach, using other disciplines such as economy, sociology and psychology. All these disciplines are needed to find indicators with which to assess the effectiveness of private regulation. Despite their useful insights, these disciplines also have blind spots. Therefore, there is a need for an integrated approach. Furthermore, it is important to find indicators that can be assessed using sources of information that are easy to access, such as those from public sources. Otherwise, it is necessary to conduct costly research.
Measuring effectiveness of private regulation is not a mathematical exercise. One must assess whether indicators can be found regarding the effectiveness of private regulation.
Tinkering with Tort Law - inaugural lecture of Prof. Giard
February 2012 – Raimond Giard, a practising pathologist and legal scholar, has been appointed Professor of methodology and torts at the Erasmus School of Law. On Friday the 10th of February, 2012, Prof. Giard delivered his inaugural lecture entitled ‘Dokteren aan het aansprakelijkheidsrecht. Over binnendijks denken, de buitengrenzen van waarheidsvinding en betrouwbare kennis’ [Tinkering with Tort Law].
A legal decision is only as good as the facts upon which it is based. However, the procedure must also be legally correct. Therefore, form and content are both important and neither should predominate.
Incomplete or inaccurate facts can lead to an inaccurate verdict. Tort law is particularly fact-sensitive. When a person has suffered damages and assumes this to be the result of somebody else’s negligent behaviour, the true cause of the mishap must be carefully established. The methodology for investigation, judgment and decision-making must be well tested to ensure objectivity.
Who is ultimately responsible for the quality of a legal procedure? In Dutch civil law, this control is primarily in the hands of the parties engaged in the conflict; the magistrate’s role is passive. This is not realistic, however. To avoid any miscarriage of justice, the judge should not only direct the procedure but must also actively supervise fact-finding and interpretation.
In tort law, inference to the best explanation of an accident is of the utmost importance, not only for a fair judgment but also in order to truly learn from mistakes. Therefore, fact-finding must be taken seriously. From this follows the need for evidence-based investigation as well as active participation in these processes by the magistrates. That is why, although it is necessary to tinker with tort law, doing so always comes at a price.
Raimond Giard (born 1950) studied medicine at Leiden University, specialising in clinical oncology and subsequently in clinical pathology. He was also trained in clinical decision-making and clinical epidemiology and wrote his first PhD thesis on diagnostic decision-making. He later started studying law and produced a second dissertation on medical negligence.
Giard currently works as a clinical pathologist at the Maasstad Ziekenhuis and Ikazia Ziekenhuis in Rotterdam and is a part-time staff-member of the Rotterdam Institute of Private Law from the Erasmus School of Law. On the 15th of June, 2011, he was appointed professor of methodology and torts.
New (external) PhD student: Lisa Bench Nieuwveld
January 2012 – Lisa Bench Nieuwveld has joined BACT as an external PhD researcher. Lisa will be researching the ethical implications of involving third-party funding in international dispute resolution. Different legal systems have different ways of addressing the involvement of third parties and any interest in the dispute. This research project, supervised by Willem van Boom, will look at the development of the third-party market in multiple jurisdictions, as well as the legal principles that have come into play and the role they continue to play in the involvement of third-party funders. Most importantly, the project will also examine the ethical implications to which this may lead. This analytical path will vary among the legal systems and the research will target key jurisdictions for a comparative approach.
Lisa Bench Nieuwveld is a partner and head of the international dispute resolution group at Bench Cooper Singh, a boutique firm in New York. She also works as of counsel in Rotterdam to Conway-Partners, bolstering their international arbitration group. Prior to holding this position, Bench Nieuwveld worked with NautaDutilh’s international arbitration group. Her practice concentrates on both commercial and investor-state arbitrations. Bench Nieuwveld is a US-licensed attorney but, through marriage, has both US and Dutch citizenship. She holds a JD from Florida State University College of Law, an LLM from Erasmus in international, comparative and European law, as well as a Bachelor of Business Administration degree in finance from the University of Central Florida. Lisa comes from Florida, which is where she calls home. She works as an adjunct professor at Florida State College of Law teaching international arbitration, and at Webster University Leiden campus teaching negotiation skills and sustainable careers.
Edited volume “Judicial decision making in civil law: determinants, dynamics, and delusions”
January 2012 –The edited volume entitled “Judicial decision making in civil law: determinants, dynamics, and delusions” has now been published. The contributors to this book presented their papers at the symposium on the occasion of the inaugural lecture of Prof. Jeffrey Rachlinski. Raimond Giard has edited the collection. The theme of the volume is as follows.
One of the cornerstones of a civil society is a legal system that makes fair and accurate decisions concerning guilt and innocence. Consequently, jurists – and judges in particular – are in the business of judgment and decision-making. Essentially, their work combines investigative and normative elements. The most critical aspect of legal decision-making is that judges are always looking back, knowing the unwanted aftermath; they are prone to the motivational biases of the plaintiff and their own cognitive biases, such as hindsight and outcome bias. High-quality administration of legal judgment requires an awareness of the many vulnerabilities of the processes involved. Every ruling is always highly fact-dependent. Fact-finding is a destitute description of the process. We do not simply gather facts that are lying around in a disorganized manner. The administration of justice requires that facts be collected in an educated, goal-driven way, and that these facts be gathered from unprejudiced observations and used wisely. Legal professionals are on a quest for truth, the whole truth and nothing but the truth. However, circumventing the vulnerabilities of this task is no longer just a matter of legal science. The behavioural approach of civil law requires the transition from monodisciplinarity to a methodological practice, which is marvellously multidisciplinary. This is justified enrichment of legal scholarship
