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The question may seem needlessly provocative. Shouldn’t legal academics be the best qualified to conduct and evaluate legal research? How could it be otherwise? The current context with the accelerating trend towards interdisciplinary approaches, however, makes the question legitimate. Don’t get me wrong. I have nothing against interdisciplinary legal research. Quite the opposite. Most of my research qualifies as interdisciplinary. (Some may argue that I’m not really a lawyer, but that’s another debate.) The problem I see has more to do with the research attracting funding and appearing (or not appearing) in top law journals.

A Primarily European Problem

The problem is primarily a European one. Legal scholarship in the United States and in places like Israel has long embraced interdisciplinarity. It is common for law professors at top US law schools to have a PhD in another discipline as well as a JD in law and the Israeli legal academy has very few researchers left doing only doctrinal analysis. These places already have a solid ecosystem of practices, institutions and, crucially, knowledgeable scholars to supervise, produce and assess interdisciplinary work.

Not so in Europe. In most corners of the European legal academy (there are, of course, some exceptions), doctrinal approaches continue to reign supreme. Compared to other academic disciplines, there is little in the way of a methodological discussion. In the Dutch-speaking world articles and PhD dissertation have been citing the one same methodology handbook for years. My French colleagues still talk about the “plan binaire” as if it added up to a scientific methodology. Given the emphasis of the doctrinal approach on textual sources and interpretation you would expect legal scholarship to be to some degree conversant with advances in linguistics and neighbouring disciplines. But you might count the number of European law professors familiar with relevance theory, post-Gricean pragmatics and semantic prototypes on the fingers of your hand. (Some lawyers would retort that they are perfectly able to produce correct/valid interpretations of legal texts without all this theoretical baggage. But that’s the difference between being right and being able to provide a rigorous, scientific explanation for such a claim. It is also, by the way, the difference between the idiot savant, who is always right but doesn’t quite know why, and the scientist, who may not always be right, but is able to supply a systematic explanation for her assertions.)

Interdisciplinary Legal Research Is Evaluated by Scholars Without Interdisciplinary Background

The upshot is that legal research claiming to make innovative use of methods – whether randomized controlled experiments, statistical modelling, Natural Language Processing (NLP) or machine learning – developed outside the legal field is largely reviewed and evaluated by people who have little, if any, knowledge of their assumptions, strengths and limitations.

Methodological ignorance is often betrayed by silly comments. Recently, I submitted an application to the legal panel of the Flemish research agency proposing to investigate differences in legal thinking across legal traditions using randomized controlled vignette experiments. One reviewer objected that my suggestion to conduct statistical robustness checks – a standard practice in quantitative research to ensure that results are not driven by problematic assumptions – was “discriminatory” and would go against “diversity” because it would exclude some observations! Another reviewer objected that the assumption of the controlled experimental design was that “lawyers don’t differ”. A comment that flies directly in the face of the main reason randomized controlled experiments have become the gold standard for causal inference across all empirical disciplines. Randomization and control groups are precisely there to account for unobserved or even unknown differences (as well as well-known observable ones). Similarly, commenting on a manuscript applying various NLP technique, including one known as probabilistic topic modelling, the scholar who was then serving as the editor in chief of the prominent law journal where I had submitted it described text-mining as “status quo oriented” (unlike the doctrinal method, which is seemingly presumed to be reform-oriented)!

Methodological ignorance can induce enthusiastic reactions to interdisciplinary approaches as well as hostile ones. As a reviewer for various research funding bodies I occasionally see proposals from legal academics that seek to impress panelists by proposing to apply some NLP procedures or other quantitative techniques. I’ve once looked at a proposal that basically proposed to use feedback from US in-house lawyers on the regulations that worked for their own corporation to train a supervised machine learning to predict what legislation would be good for business and innovation in the European Union. To anyone remotely familiar with NLP and machine learning, it was not only manifestly infeasible under the current state of the state, but it can be confidently said that machine learning and NLP will never develop techniques to extract from legislative texts information that is simply not there. Still, I heard some colleagues were ecstatic about the “awesome methodology” of the proposal. So I’m afraid to say that the such a “fake it” strategy is often rewarded.

What Can Be Done?

If reviewers and panels can’t tell the wheat from the chaff, it’s neither good for science nor for society and the taxpayers who foot the bill. Yet there’s something akin to a chicken and egg problem here. We need more interdisciplinary legal scholars to evaluate interdisciplinary legal research, but we won’t get the critical mass of interdisciplinary scholars unless we train and fund more of them. So what can be done? One solution is for research funding bodies to make panel interdisciplinary (it’s already the case for ERC panels). Law journals, as some already do, should also consider inviting more reviewers from other disciplines. Finally, European law schools should be encouraged to recruit academics with training in other disciplines.

These solutions are not easy to implement. To get computer scientists with little background in law and lawyers with little background in computer science to engage in a fruitful dialogue over the merits of a piece of interdisciplinary legal research isn’t easy. But, at this point and until the emergence of a more established community of interdisciplinary researchers, legal research – as Clemenceau once said about war and the military – is too important to be left to lawyers alone.

There is an old adage about journalism that “a man who eats a chicken is no news, but a chicken who eats a man is”. The mechanisms by which journalists select issues are much better understood than the drivers of issue attention in legal scholarship. In a new article with Michal Ovadek and Monika Glavina, we try to contribute new insights by applying probabilistic topic-modelling to compare the contents of hundreds of thousands of EU legal acts, CJEU rulings and Common Market Law Review articles.

Have you heard people saying that “hospitals have as many jabbed as non-jabbed patients” to suggest that vaccines are ineffective? Soon you may hear that there are “more vaccinated covid patients than unvaccinated ones in hospital wards”. What I’m seeing around me is that such misleading arguments can make smart folks otherwise confident in the power of science and modern medicine doubt the rationale for vaccination.

Let us be clear. What is wrong in this argument is not the statistics. But the conclusion anti-vaxxers pretend to draw. As with many things about the pandemic, you don’t need a degree in epidemiology to figure out why. All that is required is logic. The curve I’ve plotted here correctly shows that the proportion of vaccinated patients among people admitted to hospital for a covid infection should go up as the vaccination campaign progresses. You’ve read correctly: it should go UP, not down. I’ve drawn the curve assuming that non-vaccinated people are 9 times more likely to develop a form of the disease leading to hospitalisation, which is a good approximation of what we know about the efficacy of jabs authorised in Western countries (see analysis in Nature).

How can this be? The first thing to remember is that vaccinated and unvaccinated patients are drawn from changing populations. As more people get inoculated, the population of vaccinated people grows whereas the population of unvaccinated people shrinks. The other thing is that 90 per cent efficacy is not the same as 100 per cent efficacy. So, although the efficacy of the Pfizer/Biontech and Moderna jabs is very high, a more or less constant share of those who have been jabbed will catch the virus and end up in hospital care. As the inoculated population grows thanks to the progress of the vaccination campaign, this constant share represents a larger group in absolute terms (holding virus circulation and mitigating measures constant). Meanwhile, the unvaccinated population follows the same dynamic in reverse. Relative to the unvaccinated population, the share of people requiring hospital care is bigger, but this constant share applies to a population that gets smaller and smaller as more people get inoculated — thus moving them from unvaccinated to vaccinated status.

Counter-intuitive as it may first sound, the proportion of vaccinated people among covid patients will be lowest at the start and highest at the end of the vaccination campaign, when nearly everyone has been inoculated. But again, given what we know about vaccine efficacy, this is the conclusion that logic dictates. So don’t be fooled by anti-vaxxers and conspiracy theorists, use logic to debunk their flawed reasoning!

The covid 19 pandemic has seen its fair share of fake news, from the Chinese government’s attempt to suppress news that a new virus had appeared in Wuhan to hydroxychloroquine (or even disinfectant) being touted as a magical cure. There have been times, though, when even intelligent, well-intended and competent people have applied faulty logic to the information at hand.

One illustration were recommendations about mask-wearing in Western nations in the early months of the pandemic. Back then official (including World Health Organisation) guidelines specified that, except for front-line health care workers, only those showing symptoms of the disease should cover their face. Yet, at the same time, it was acknowledged that asymptomatic carriers of the virus were likely responsible for a significant share of infections. This was logically inconsistent. If the assumption was that masks could prevent those showing symptoms from passing on the disease, then the same reasoning should have applied to the potentially asymptomatic carrier – which, because tests were then in short supply, was almost everybody else.

It took many weeks for health officials to realise and eventually admit that their reasoning was wrong. When they did, masks soon became ubiquitous.

A lot of smart people now seemingly agree that the European Union’s vaccine rollout has been an outright disaster, which will cause thousands of unnecessary deaths. Paul Krugman in his New York Times column has blamed the alleged fiasco on fundamental flaws in the continent’s institutions and attitudes. Timothy Garton Ash in The Guardian has been no less sparing in his assessment of the EU’s vaccine campaign. Vaccine doses remain in short supply, but there has been no shortage of critical voices across Europe and beyond to disparage Brussels’ handling of vaccine procurement and regulatory approval. There have even been hints of Schadenfreude in the British tabloid press with The Sun responding to the Bild Zeitung’s headline “Wir beneiden euch” (we envy you) with a “Wir beneiden dich nicht” (we don’t envy you).

If anything, the discussion is likely to get more rancorous as Europeans realise that the promise of a summer holiday free of covid is beginning to evaporate. Expect tempers to flare and the blame game to get worse.

Canada had pre-ordered enough vaccine doses to inoculate every Canadian nine times over and yet…

While it is certainly legitimate to ask what the EU and its member states could have done better, I have the impression that many are, again, jumping to conclusion. True, compared to the United States, the UK and Israel, the EU has vaccinated a considerably lower proportion of its population. But is that enough to conclude that the EU vaccination programme has been an outright debacle? Should the vaccination rates achieved in the UK (where, at the time of writing, more than 40 per cent of the population had been administered one dose, against 12 per cent in the EU) be the yardstick of success or failure?

Taking a broader look at vaccine rollouts in other rich countries, the answer appears less obvious than the current debate would like us to believe. I have taken a close look at Canada. According to Science (30 November 2020) no country had pre-ordered more doses in proportion to its population. Enough for every Canadian to receive nine doses! Authorizations for both the Moderna and Pfizer/BioNTech vaccines were delivered before Christmas day and mass vaccination efforts began on 14 December. The AstraZeneca and Johnson & Johnson vaccines have also been duly given regulatory clearance.

Yet, fast forward a few months and less than ten per cent of Canadians have received a jab – 9.88 per cent as of 19 March 2021 according to Our World in Data. A figure worse than for the EU. Has there been a Canadian vaccine debacle too?

In a zero-sum game one country’s success is bound to be another country’s failure

In fact, the explanation for the slow progress of the vaccine campaign in Canada is essentially the same as in the EU: low supply of vaccines. Lots of vaccines were pre-ordered, but Canada, just like EU member states, has found itself at the back of the queue, with deliveries plagued by delays. For the EU, this explanation remains valid even if we factor in the controversial decision to suspend administration of the Oxford/AstraZeneca vaccine after reports of patients experiencing blood clots. The pharmaceutical company has delivered less than a third of the promised supply for the first quarter of 2021. So the temporary suspension won’t make a significant difference in the short run (although it may well make one in the long run by undermining vaccine acceptance).

The truth of the matter is that when demand exceeds supply vaccination is a zero-sum game. Every jab you get is a vaccine someone else does not get. And so the relative success of one country is bound to be the failure of another. Had the European Union been more aggressive in securing supply, this would have slowed down vaccination programmes in other parts of the world. According to EU internal documents, the bloc has exported 34 million vaccine doses between 1 February and 9 March 2021. More than nine million of these doses were shipped to the UK, while three million were sent to Canada. Even the United States have received close to a million doses manufactured on the EU territory during the same period.

While the United States recently announced that it would share AstraZeneca vaccines (which have yet to be approved by the US Food and Drug Administration) with Canada and Mexico, no vaccine manufactured in the US has been exported. The same is true of vaccines made on UK territory.

Paradoxically, it is the EU that has been accused of vaccine protectionism. But as recriminations against the alleged vaccine debacle continue, vaccine nationalism is precisely the lesson that EU and, maybe Canadian, leaders are likely to draw from this episode of the pandemic.

The recent appointment of Amy Coney Barrett to the United States Supreme Court shortly before Election Day has brought a flurry of comments about her ideological leanings and the impact she might have on the position of the Court during a Biden presidency. Yet neither that, nor the partisan wrangling that accompanies judicial appointments, is particularly unusual in the United States, where US Supreme Court justices attract considerable media attention and the influence of ideology is both well documented by a vast body of academic research and fully acknowledged by court watchers.  

In comparison to US federal judges, European Union courts labour in relative obscurity. Whether it is about the integration process and the supremacy of EU law, privacy and data protection or anti-competitive practices, EU courts handle cases of considerable significance for Europeans and EU policymakers, easily putting them among the world’s mightiest judiciaries.   Yet little is known about the ideology of EU judges and how it might influence the direction of their rulings. 

Academic research into the influence of ideology has been hampered by the institutional setup of EU courts, which precludes the disclosure of individual votes and opinions. The secrecy surrounding the internal deliberation process means that most of the techniques employed to investigate judicial ideology in the American context are inapplicable to EU courts. Scholars have thus been left with crude proxies such as the partisan affiliation of the appointing government or the legal tradition of the appointed magistrate to try and track ideological variations and link those to case outcomes.

We just published a study that seeks to shed new light on the effect of ideology on EU courts by using an alternative measure of judicial ideology. We asked 46 legal experts to rate 51 judges of the General Court of the European Union on three dimensions: (1) attitude towards market regulation, (2) attitude towards European integration and (3) legal expertise. We then took the average of these ratings to compute the judicial scores displayed in Figure 1. 

Consistent with prevailing perceptions in legal circles, former civil servants (such as French judge Legal or German judge Dittrich) score high whereas judges with a background in private legal practice (including Dutch judge Van der Woude and British judge Forwood) score low on the pro-regulation dimension. Scores on this dimension are also correlated with attributes of the appointing member states, such as perceived ease of doing business and membership of the former Socialist bloc, which suggests systematic cross-national disparities in appointment dynamics.

Drawing on these judicial scores, our study found robust evidence that, in competition and state aid cases, panels with more a pro-regulation median judge favour the European Commission over private litigants.

Two weeks on since the German Constitutional Court issued its momentous ruling on ECB’s quantitative easing programme, commentators are still wondering what kind of bomb has been detonated by the German Court. Will the blast bring down the Euro along with the European Union? Or will a makeshift arrangement of some sort allow the EU to kick the can down the road and muddle through, at least until the next crisis flares up? Whether the ruling ends up triggering a much-feared thermonuclear chain reaction marking the end of the European project will depend in large part on the response of other EU and German institutions and their ability to persuade the judges in Karlsruhe that the PSPP meet their exacting proportionality test.

But even before the dust has fully settled on the ruling, one thing is clear. By pronouncing the Weiss ruling of the Court of Justice a ultra vires act, the German Court has already caused considerable, and possibly irreversible, damage to the authority of supranational law in Europe. This holds irrespective of whether central bankers manage to find a way out of the hole dug by the ruling or whether public relation efforts by EU institutions and others succeed in containing the perception that EU law supremacy is now merely notional.

Together with the European Court of Justice, the German Constitutional Court is Europe’s only judicial superpower. Unrivalled at home, whatever it says carries the weight of Germany’s economic and political clout. The influence of the German Court beyond its borders is attested by the fact that several apex courts, from the Danish Hojesteret to the Czech Constitutional Court, have imported its doctrines, including the ultra vires doctrine it first spelled out in its Maastricht judgment, into their own case law. So a domino effect, with devastating consequences for the effectiveness of EU policies, is a real possibility.

Shifting signals and increasing Euroscepticism

While the international and constitutional court commentariat has focused more on the consequences of the ruling or the weaknesses in the Court’s argumentation, one question that promises to attract a great deal of academic attention in the coming months is what may have spurred the German Court to make such a move? Legal formalists may point to the Court’s 40 000-word opinion as the best summary of the Court’s motives. But, without even considering the holes in the constitutional judges’ argument (crucial claims about the Court of Justice’s reasoning being “incomprehensible” and “arbitrary” are bizarrely unsubstantiated), there are obvious reasons to believe that this cannot be the full story.

Since the 1960s, the German Court has ruled on the place of EU law in the German legal system on many occasions, alternating EU-friendly with warning shots. From the mid-2000s onwards, there has been discernible trend towards increasing defiance. In 2014, the Court submitted its first-ever request for a preliminary ruling to the Court of Justice regarding another ECB’s bond-buying scheme – the Outright Monetary Programme (OMT). Although this would normally be interpreted as a pace offering, the language of the reference was itself emphatically defiant, foreshadowing the 5 May 2020 ruling. 

While it borrows much of the state-centric sovereignty rhetoric of the Court’s Eurosceptic rulings on the Maastricht and Lisbon treaties, the Court’s ultra vires holding also emphasises what the economist and Financial Times columnist Martin Wolf has characterised as a “litany of conservative concerns”: public debt, personal savings and pension and retirement schemes. These are themes that indubitably find a strong echo in large sections of the German public, in a country known for its high saving rate, quasi-religious fear of inflation and staunch adherence to rigid monetary policy.

Change in judicial ideology or breakdown in judicial dialogue?

One way to rationalise the trajectory and occasionally abrupt shifts in the German Court’s evolving case law has been to conceptualise its relation with the Court of Justice in terms of a pacific coexistence equilibrium in which the two courts accommodate each other’s red lines by trading issues across time. In this view, the Eurosceptic rhetoric and non-compliance threats served to signal the importance the German Court attached to an issue, inviting the judges in Luxembourg to exert greater restraint. The prospect of mutually assured constitutional destruction acted as a strong incentive to seek judicial dialogue, thereby guaranteeing the non-compliance threat would never be put to execution.

Although some scholars dismissed the German Court as a dog that barks but never bites, there was anecdotal evidence that the Court of Justice paid attention to the warning shots coming from Karlsruhe. It articulated new EU fundamental rights in response to the first Solange judgment and seemed to hold back its activist impulse after the Maastricht ruling. While actively bargaining with the Court of Justice over the terms of further integration, the Karlsruhe judges made sure, by announcing (in Kloppenburg) a constitutionally enforceable right to one’s “natural judge”, that other German courts behaved as rule stickler when it came to referring questions to the European Court. As statistics attest, German courts, including its five supreme courts, effectively became the most reliable purveyors of preliminary references. As integration deepened, the warning shots turned more frequent. But all this could be viewed as part of the same implicit on-going negotiation process. The German Court was the Court of Justice’s best friend as well as its best enemy.

However, there were conditions for this equilibrium to be sustainable which may point to possible explanations for the constitutional crisis that the German judges decided to trigger. One condition was that the two courts would attach greater benefits to long-term cooperation than to an escalated conflict in the short run. One possibility is that the judges sitting on the Court have become more sceptic of the long-term benefits of European integration. Both Gertrude Lübbe-Wolff and Michael Gerhardt, who wrote pro-integration dissents in the OMT case, left the Court in 2014. These departures may have affected the Court’s ideological centre of gravity. Or, maybe, it has less to do with an alteration in the composition of an already Eurosceptic bench and more with growing public disaffection with the EU in Germany. Dwindling enthusiasm for the EU and trepidation that fiscally irresponsible governments in the south may turn the EU into a “transfer union” may have lowered the costs of an escalated war with EU judges. The Court’s rhetoric purports to vindicate the interests of German savers and tax payers. This renders more difficult for German politicians to evade the consequences of its ruling. The German judges have also given interviews in German newspapers to defend their decision.

Yet another condition for the equilibrium that has underpinned the effective operation of the EU legal system was the belief that the German Court would be willing to press the big red button in case the Court of Justice would unilaterally deviate from the equilibrium path. As in the Cold War, deterrence credibility guaranteed that peace would prevail. It could be that, at some point the Court of Justice started to doubt this premise. There were reasons to expect that, when responding to the German Court’s reference in the OMT case in 2015, EU judges would make some concessions. The fact that it did not may indicate that it is when it started to treat thee warning shorts as mere bluff. If so, then the Court of Justice may have been the first to deviate from the normal equilibrium path of play. This, in turn, suggests that the bomb that the German Court dropped on the EU legal order last week reflects a breakdown in judicial dialogue, rather than a shift in judicial ideology or in German attitudes towards EU membership. If that is what happened, then there might be hope that a form of judicial dialogue can restored in the near future. Such hope is not unreasonable. But such is the damage that has been inflicted on the collective beliefs and expectations sustaining the EU legal order that if judicial dialogue is restored, it will most probably be under terms and in an equilibrium much less favourable to the Court of Justice and to the authority of supranational rule-makers.

Legal tech has become mainstream and even something of a buzzword. Huge sums of money are pouring into legal tech and legal automation research. Start-ups are popping up like mushrooms and everyone wants to claim he’s doing something with AI. How and to what extent legal tech is going to change the profession and legal services delivery nobody can really say with much certainty. Legal tech may be in the same phase of creative destruction as tech in general was during the dotcom bubble of the early 2000s. Yet it is important to understand that the tech revolution is part of a broader transformation of legal practice. Law has long been the quintessential gentleman’s profession with business practices more akin to that of a craft than of a modern, efficient capitalist industry. This has changed, partly as a result of globalisation but also as a consequence of the rise of in-house counsels (who have put pressure on law firms to become more efficient) and the entry new players like the big-four accounting firms (PWC, EY, Deloitte and KPMG) into the legal market. What this transformation means for legal education and legal training was the theme of a “Future of Legal Education” workshop that just took place in Barcelona.

While elite institutions – the Stanford, Harvard and Bucerius Law School of this world – have been very responsive to these challenges, the response at the median law school, certainly in Europe, has been at best tepid. Some law schools have added a course on law and technology here or there. But this is largely window dressing and goes very little distance towards addressing the fundamental rethink that these challenges pose for future lawyers. Law is a highly (self-)regulated business and protectionist impulses often drive lawyers’ response to change. Legal Luddites do exist (I’ve met a few of them) and maybe they are especially present in non-elite law schools. But although protectionist and anti-tech regulations – like the French ban on judicial forecasting or the German court ruling on smart contracts – may slow down the pace of transformation, it will not stop it. Legal education is increasingly perceived as archaic and outdated. Everywhere in Europe – look at the numbers in France, Germany and Italy – law school enrollments are down (even when university enrollment overal is up). In most European countries legal education is nearly free but this is a plausible sign that prospective students are responding to market signals (in the US, where legal education is prohibitively expensive, enrollments are at a historic low). It is time that law schools accept that legal education must be reengineerd from the ground up. As I have argued elsewhere, the challenges require a truly interdisciplinary curriculum, a greater emphasis on skills and innovative tech-supported teaching methods. Just as legal practitioners are learning to work with computer scientists, engineers and entrepreneurs to create tomorrow’s legal business models and services, law schools must embrace interdisciplinarity in their course offering as well as in their teaching personnel.

It is often said that change is the law of life. It is time it also becomes the law of legal education.

With another deadline looming, I’ve been commenting again the last developments in the Brexit saga on the Argentinian radio programme Corresponsales en Línea.

With Parliament facing suspension and PM Boris Johnson trying to rein in the rebels in his party, the entire world is watching the Brexit chaos unfolding. I just commented the latest developments in the Brexit story on Argentina’s radio programme Coresponsales en línea (in Spanish).

Since the 1950s, EU legislators have produced hundreds of thousands of legal acts while EU courts have issued more than 15 000 rulings. We used natural legal language processings methods (i.e. dynamic topic modelling) to explore and annotate this giant legal corpus. Check the topics and their variation over time across legislation and judicial opinions with our interactive plot on the EUTHORITY website.