Inaugural lecture by Prof. Jeffrey J. Rachlinski
November 2010 – On 9 November 2010, Jeffrey J. Rachlinski held his inaugural lecture as Erasmus Chair of Empirical Legal Studies. Under the title ‘Inside the Judical Mind: How Judges Make Decisions’, Rachlinski asks whether judges apply law to facts in a mechanical and deliberative way, as the formalists suggest they do, or rather rely on hunches and gut feelings, as the realists maintain. Debate has raged for decades, but researchers have offered little hard evidence in support of either model. Using empirical studies of judicial reasoning, Rachlinski demonstrates that judges respond to cases both with intuition and deductive reasoning. Accounting for both intuition and deliberation provides a more accurate account of judicial behavior than models that advance one or the other process as the sole determinate of judicial decision-making. The model also suggests that an excessive reliance on intuition is a common source of judicial error.
On the occasion of Rachlinski's lecture, Raimond Giard organised the seminar 'Judicial Decision Making in Civil Law: Determinants, Dynamics and Delusions'. Speakers included Ivo Giesen (Utrecht; ‘Attribution, causation and prevention’), Jan Smits (Maastricht; ‘The judge between facts and norms: on the psychology of norm selection’), Femke ten Velden and Carsten de Dreu (University of Amsterdam; ‘Judicial Judgement and Decision Making: A motivated information processing in groups perspective’), and Raimond Giard (Rotterdam; ‘Facts, framing, and fallacies in tort negligence’).
Inaugural lecture by Prof. Jonathan Klick
October 2010 - On Tuesday 26 October, Prof. Jonathan Klick will hold his inaugural lecture on 'The Empirical Revolution in Law and Economics' (Senaatszaal, 16.00 hours).
In his inaugural address, Prof. Klick describes the movement of law and economics from an almost exclusively theoretical and intuitive field of research to a predominantly empirical one. This movement is documented with descriptive data from journals that focus on law and economics. He then discusses possible reasons for the trend, and speculates about whether it will continue and, more importantly, how empirical work is likely to change in the future. Along the way, he will offer thoughts on various issues, such as why the empirical movement has not yet caught on in European law and economics, how empirical law and economics differs from the related empirical legal studies movement, and why the most prominent literature in empirical law and economics – that of legal origins/law and finance – actually represents bad law and bad econometrics.
The Power of Injunctive Relief in Tort
August 2010 - Following the successful seminar at the Maastricht 2009 Ius Commune Conference, Willem van Boom, Ivo Giesen and Anthony Ogus edited a special issue of the Maastricht Journal of European and Comparative Law (Vol. 17/1) on injunctive relief in tort. See . Contributions to this issue include "Comparative Notes on Injunction and Wrongful Risk-Taking" (Willem van Boom), "A Law and Economics Perspective on Injunctive Relief" (Anthony Ogus and Louis Visscher), "Enforcing the Right to Property Properly" (Siewert D. Lindenbergh) and "Injunctions at the Request of Third Parties in EU Competition Law" (Caroline Cauffman).
BACT Research Programme rated ‘excellent’ in Dutch RAE 2009
July 2010 - On 2 July 2010, it was announced that the research programme ‘Behavioural Approaches to Contract and Tort: Relevance for Policymaking’ (BACT) was rated ‘excellent’ in the Dutch Research Assessment Exercise 2009. The Dutch RAE is a national assessment of the quality of research programmes undertaken by Dutch law faculties.
The evaluation committee responsible for the assessment granted BACT an overall score of 4.75 on a scale of 5.00. It praised BACT for both the quality and the quantity of the publications generated by the research group. In particular, the committee appreciated that the programme ambitiously pushes the boundaries of legal research into the multidisciplinary and international legal arena. Moreover, the committee commended the programme for its promising prospects and sustainability.
Party autonomy in property law
June 2010 - On 27 and 28 May 2010, the conference ‘Party Autonomy in Property Law’ was held at the Erasmus School of Law in Rotterdam. Splendid lectures by prominent speakers, a mainly specialised audience, a friendly and international atmosphere (no fewer than twenty-two universities throughout Europe and even Japan and Africa were represented), and a subject that is known to be highly controversial, resulted in inspired and lively discussions. The conference met its objective perfectly: to analyse and comment on the question of whether party autonomy or, more specifically, a choice of law possibility in matters of Property Law should be recommended or required.
At the conference, four central themes were dealt with:
- General aspects of party autonomy, as seen from the perspective of Continental Law as well as of Common Law;
- Private International (Property) Law;
- Developments and prospects in Europe and in European Law Projects (e.g. European conflict rules for property law?);
- Assignment in Private International Law, Financial Instruments/the Collateral Directive; Insolvency Law.
The importance of the central theme may be described as follows. Only in Rotterdam – one of the largest ports in the world - more than 107 million tons of goods were transferred in the first quarter of 2010. The goods arrive from all over the world, and are then transported further around the globe. By the time they reach Rotterdam, they have crossed multiple borders, and will cross even more after leaving the port. The central legal question is: what happens to the related property rights when borders are crossed? Do we recognise a German retention of title or an American security right? And which law will apply: the law of the country of origin, the lex situs (the law of the place where the goods are situated) or the law of the country of destination? Is there a reason to have harmonised conflict rules within Europe or on an international level? Or do parties have the possibility to choose the law governing proprietary rights aspects?
Within the research programme ‘Behavioural Approaches to Contract and Tort: Relevance for Policymaking’, the tension between the last two questions immediately attracts attention. Is or should party autonomy be allowed in international property law? What gives rise to the actual need for party autonomy in the area of property law, an area that traditionally is dominated by the lex situs, a rule that is deeply established in the private law of countries? Why is it that parties involved in international trade have developed a need to choose, by themselves, the law that is applicable to their transaction? What happened or is happening – apparently – to the traditional private law of countries? In short, what causes this change in legal behaviour? And what will be the effects of allowing party autonomy?
On February 18 2011, Roel Westrik (who initiated and organised the conference, together with Jeroen van der Weide of the Leiden School of Law) presented the main results of the conference at a research programme seminar.
PhD Defence Hanneke Luth
On 27 May 2010, Hanneke Luth, PhD in the EDLE programme, defended her thesis on 'Behavioural economics in consumer policy. The economic analysis of standard terms in consumer contracts revisited'.
The full text of the summary can be downloaded here.
Jeffrey Rachlinski appointed Erasmus Chair of Empirical Legal Studies
9 March 2010 - Jeffrey Rachlinski (1966), Professor of Law at Cornell Law School (Ithaca, NY, USA), has been appointed part-time Chair of Empirical Legal Studies at Erasmus School of Law. Prof. Rachlinski is both a lawyer and psychologist, and he specialises in empirical legal studies.
Prof. Rachlinski joins the Erasmus School of Law interdisciplinary research team ‘Behavioural approaches to contract and tort’ to pursue new strands of empirical research into areas such as judicial decision-making processes and litigation strategies.
Prof. Rachlinski has ample experience in the methodology of empirical law and economics, and he will thus provide invaluable input with a view to accomplishing the empirical aspirations of Erasmus School of Law research.
With the appointment of Prof. Rachlinski, the Erasmus School of Law has secured a total of three Chairs in Empirical Legal Studies. Previous appointments included sociologist Vincent Buskens and economist Jonathan Klick.
- For a profile of Prof. Rachlinski, please visit Cornell Law School.
Seminar ‘Juxtaposing Autonomy and Paternalism in Private Law’
26 February 2010 – On 26 February 2011, Anthony Ogus and Willem van Boom organised a fruitful seminar entitled ‘Juxtaposing Autonomy and Paternalism in Private Law’.
The theme of this seminar was briefly demarcated as follows. Autonomy is generally regarded as the fundamental right of individuals to shape their own future through voluntary action. As such, it seems opposed to legal paternalism, briefly defined as instances in which legislative bodies or courts interfere with the individual’s decision-making process and build barriers that restrain the individual. Traditionally, legislation protecting the estate of minors and mentally disabled individuals against the consequences of their actions is considered the prime example of paternalism. However, such protection against the risks of succumbing to weakness and extortionary practices is currently ubiquitous in western society. The level of protection differs from domain to domain. The prohibition of trading in humans as a commodity – ranging from slavery to prostitution and to selling organs – seems difficult to compare with the restrictions of freedom of contract in marital and family issues or with gambling regulation, but the essential commonality is the substitution of voluntary individual decision-making by that which the legislator or court finds the most appropriate. This is what constitutes paternalism.
Paternalism comes at a cost. If mandatory paternalism is introduced without regulating price, the private party burdened with executing the paternalistic intervention (e.g. gatekeepers) will surely consider charging the protectee. Such a transferral of cost may cause the price of the product to rise, and may ultimately cause the product to become unaffordable for those on lower incomes. Measuring the cost of paternalism may be easier than measuring the benefits. What does society gain by protecting the patrimonial interests of the weak and the unwise? What does society gain by protecting inexperienced investors against market forces by imposing a duty on banks to check customers’ financial situation? Surely, the benefits must be found in some fundamental value of human autonomy: by turning to paternalism, the individual is protected in order to avoid more catastrophic consequences. This does not, however, preclude an effort towards a more objective measurement. How much is society willing to spend (or forego in terms of welfare increase) to protect specific groups of individuals? The extent to which a given society is willing to allow paternalist intervention tells us a great deal about the dominant political philosophy. Thus, by juxtaposing autonomy and paternalism in private law, we may identify and better evaluate these undercurrents in the politics of private law.
Among the academics presenting their paper at this workshop were:
- Gerhard Wagner, University of Bonn and Erasmus School of Law
- Simon Deakin, University of Cambridge
- Daniel Schwarcz, University of Minnesota Law School
- Nick Huls, Erasmus School of Law
- Oren Bar-Gill, New York University School of Law
- Ann-Sophie VandenBerghe, Erasmus School of Law
- Laurens Winkel, Erasmus School of Law
- Stephen Waddams, University of Toronto
The papers presented at the workshop will be collected and published at a later stage.