Role Of Legal Scholarship Research Articles

The case for clinical scholarship

<p>Lines between theory and practice have been blurred considerably in law teaching already, with the spreading influence of clinical legal education around the world.2 In this article, I address the implications of this trend on legal scholarship – the aspect of legal academia where theory-practice tensions tend to be strongest. Following a brief discussion of clinical education’s still uncertain place in the legal academy, I turn to the role of legal scholarship and the potential contributions of clinical education to legal academic literature. Rejecting the strongest criticisms voiced by some clinicians to the effect that scholarship adds little or no value to the primary mission of legal education, which is the training of future lawyers, I explore the many facets of an emerging “clinical scholarship” informed by clinical practice. I also reject the notion that scholarship is less important for clinicians than for other law faculty, by making the case that clinical scholarship strengthens clinical legal education by helping advance its two main goals of improving the quality of law practice and enhancing the public role of the profession.</p>

The Paradoxical Relationship between Econometric Effectiveness and Legal Certainty

Be it information asymmetry in banking regulation or game theory as applied to child custody in divorce, economic theory plays an increasingly prominent role in legal scholarship. Econometrics brings welcome empiricism to our efforts to understand the operation both of markets and of society in general. Its application to the law, however, carries with it the risks of failing to account for certain fundamental contradictions between econometric and legal method. This paper considers the problem of using econometric data to inform legal decision making, and in particular what may be an irreconcilable clash between effective purposive law and legal certainty. This creates problems for the judge asked to make choices based upon desired purposive outcomes, such as achieving the best returns of creditors or having the highest probability of recovery, in order to achieve a legally certain outcome, which is to say that the informed observer is reasonably able to predict the result. Although this paradox is described in the context of insolvency law, it is inherent to legal method in general rather than being specific to this discipline.The exact nature or desirability of either legal certainty or effective social engineering through the law is beyond the scope of this paper, as is the question of the extent to which legal reasoning is genuinely deductive. The purpose is to demonstrate that the objectives of certainty and effectiveness are pulling in opposite directions: an effective law is uncertain, and a certain law is ineffective. The lawmaker must choose between one and the other.

THE RELATIONSHIP BETWEEN ANTITRUST AND REGULATION IN THE US AND THE EU: CAN LEGAL TRADITION ACCOUNT FOR THE DIFFERENCES?

In the US, federal antitrust law may come into conflict both with federal regulation and regulatory schemes enacted by individual states. Similarly, in the EU, tensions can arise between EU antitrust rules, on the one hand, and either EU or member states' regulation, on the other. This paper seeks to examine the role played by legal tradition, in its manifold dimensions, in shaping the relationship between antitrust and regulation on the two sides of the Atlantic. To this end, Sections 2 and 3 will analyse the statutory provisions and doctrines governing the interplay between antitrust and regulation in the US and the EU. Sections 4 and 5 will explore each jurisdiction's legal traditions that may be relevant to the relationship between antitrust and regulation, such as the constitutional and political context of antitrust policy, the role of legal scholarship, and the antitrust enforcement culture. Section 6 will investigate possible connections between the divergences in the antitrust-regulation interface in the two legal systems and their different legal traditions.

In Support of Practical Legal Scholarship

In this magazine, we have recently tackled such topics as complex systems, climate change, and extreme weather (itself an example of complexity at work). The intricacy of our environmental problems requires rethinking the role of legal scholarship in generating environmental solutions. This Insights article argues for the vital role of practical legal scholarship, which addresses our environmental challenges by marrying rigorous, legal analysis with multidisciplinary research and a commitment to solutions.

Of combats livrés and combats livresques

RésuméÀ partir d'une lecture de mélanges publié en hommage à Claude Masse, professeur de carrière à l'Université du Québec à Montréal et avocat engagé, l'auteur étudie les publications de recherche ayant pour objet la justice sociale en tant que genre de la littérature juridique québécoise. Portant le sous-titre ‘en quête de justice et d'équité’, les Mélanges Claude Masse offrent au lecteur l'occasion de réfléchir au rôle de la doctrine en tant qu'instrument d'évolution sociale en la comparant à la doctrine n'ayant que des ambitions spéculatives. La recherche en droit privé a subi des influences particulières au Québec pendant les trente dernières années – la jeunesse relative de la vocation de professeur de carrière, l'impact de la Révolution tranquille sur la théorie des sources du droit, et le poids massif de la révision du code civil dans la culture juridique. Ces influences expliquent, en partie, l'importance des publications ayant pour objet la réforme du droit au cours de cette période. Toutefois, les Mélanges Claude Masse et l'homme que l'ouvrage met en valeur soulignent un deuxième aspect de la recherche en droit visant la justice et l'équité. L'auteur prétend que la recherche juridique peut être vue comme une forme de résistance en soi, abstraction faite de ses finalités, puisqu'elle implique, par sa nature, une prise de parole dans la cité au nom de la différence. L'équilibre entre ces deux thèmes – la recherche en droit comme instrument de changement social, d'une part et, d'autre part, la recherche en droit comme acte de justice sociale en ellemême – est un aspect marquant de la culture universitaire du droit au Québec.

Expressive Theories of Law: A Skeptical Overview

An theory of law is, very roughly, a theory that evaluates the actions of legal officials in light of what those actions mean, symbolize, or express. Expressive theories have long played a role in legal scholarship and, recently, have become quite prominent. Elizabeth Anderson, Robert Cooter, Dan Kahan, Larry Lessig, and Richard Pildes, among others, have all recently defended expressive theories (or at least theories that might be characterized as expressive). Expressive notions also play a part in judicial doctrine, particularly in the areas of the Establishment Clause and the Equal Protection Clause. This paper attempts to provide a precise conceptualization of an theory of law. On virtually any moral theory, the meaning of a legal official's action might have moral significance. (For example, within a utilitarian theory, the meaning of official action might affect overall well-being.) What, then, is the special significance that an theory of law attributes to legal meaning? After addressing such conceptual and definitional problems, this paper provides a critical overview of expressive theories. I focus first upon expressive theories of punishment, constitutional law, and regulation, and then set forth a general argument why expressive theories (as I have defined them) are unpersuasive.

Expressive Theories of Law: A Skeptical Overview

An theory of law is, very roughly, a theory that evaluates the actions of legal officials in light of what those actions mean, symbolize, or express. Expressive theories have long played a role in legal scholarship and, recently, have become quite prominent. Elizabeth Anderson, Robert Cooter, Dan Kahan, Larry Lessig, and Richard Pildes, among others, have all recently defended expressive theories (or at least theories that might be characterized as expressive). Expressive notions also play a part in judicial doctrine, particularly in the areas of the Establishment Clause and the Equal Protection Clause. This paper attempts to provide a precise conceptualization of an theory of law. On virtually any moral theory, the meaning of a legal official's action might have moral significance. (For example, within a utilitarian theory, the meaning of official action might affect overall well-being.) What, then, is the special significance that an theory of law attributes to legal meaning? After addressing such conceptual and definitional problems, this paper provides a critical overview of expressive theories. I focus first upon expressive theories of punishment, constitutional law, and regulation, and then set forth a general argument why expressive theories (as I have defined them) are unpersuasive.