Arthur Dyevre, PhD

How does a collective of judges come to a common decision? A fairly good approximation is the Median Voter Theorem, which predicts that the majority decision will reflect the position of the median judge. According to my recently released Working Paper (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4687112), the median judge on the ICJ has been shifting towards more pro-Western positions in recent years, with French (Abraham), Ugandan (Sebutinde) and Moroccan (Bennouna) judges assigned the highest probability of acting as median. As the world awaits the announcement of the Court’s interim ruling, these findings suggest a tighter outcome than in the Israeli Wall advisory opinion. 

The only International Court of Justice precedent involving Israel is its 2004 advisory opinion on the “Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories”. Looking at how the mode presented in a fresh Working Paper (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4687112) fits this case, what is most striking is that it was NOT a polarising issue. Instead, all judges, except the US one, came out against Israel. A pattern of isolation similar to that observed in other UN institutions. The correlation with latent support for the Western-led international order — the main geopolitical cleavage on the Court — is also weak.

The embrace of empirical legal studies, a trend that has transformed legal scholarship in the United States and Israel, is now gaining significant traction worldwide. This shift is particularly evident in the study of constitutional rights, where traditional normative and theoretical approaches are being supplemented, and at times challenged, by empirical methods. The trend is not confined to any one region but is a part of a broader, global movement in the legal academy.

Areas like environmental law clearly demonstrate the value of empirical methods. Here, the impact of legislation is directly observable and quantifiable, from emission reductions to improvements in wildlife diversity. This measurable approach is crucial, offering a concrete assessment of policy efficacy that complements normative legal discussions.

The Complex World of Constitutional Rights Law

In contrast, constitutional rights law presents unique challenges for empirical analysis. The nature of rights, varying widely across different times and jurisdictions, and the often aspirational language used in legal provisions, adds layers of complexity to empirical study. How can the effectiveness of constitutional rights be measured in tangible terms?

Despite these hurdles, recent empirical studies have made significant inroads. Starting in the late 1990s, researchers began examining the impact of international human rights treaties, navigating through complex methodological landscapes. This marked the beginning of a challenging yet transformative journey in applying quantitative methods to constitutional rights law.

“How Constitutional Rights Matter”: A Seminal Contribution

In this context, the monograph How Constitutional Rights Matter (OUP, 2020) by Adam Chilton and Mila Versteeg, which I reviewed for the European Constitutional Law Review, stands as a landmark. This work not only proves the feasibility of empirical methods in the realm of constitutional rights but also sheds light on how these methods can enhance our understanding of the actual impact of constitutional rights globally. By offering quantifiable insights into the effect of constitutional rights provisions on rights violations, it challenges the long-held skepticism towards empirical legal studies.

How Constitutional Rights Matter is part of a broad empirical turn in comparative constitutional law addressing the diffusion of constitutional practices, institutions and rights. Some of the accumulated work has come in the form of articles in law and social science journals. Some has come in the form of monographs. The Endurance of National Constitutions by Zachary Elkins, Tom Ginsburg and James Melton, drawing on the most comprehensive comparative law database ever built, has a been a major milestone, ushering in a decade of increasingly ambitious empirical work. Impressive as it was at the time, covering constitutional events worldwide over two centuries, The Endurance of Constitutions also suffered from methodological weaknesses, although these appeared only in retrospect as the credibility revolution spread to empirical comparative law. With its comprehensive mixed-method treatment, How Constitutional Rights Matter certainly sets the methodological bar higher and will define the standard against which empirical constitutional law will be assessed in the years to come.

Human rights revolutions are fought in poetry. But understanding what bills of rights are able to achieve requires a sober mind and lucid prose. Currently, How Constitutional Rights Matter is the most accomplished monograph on the reality of constitutional rights.

I just dropped an article in European Politics and Society titled “EU Judicial Behaviour Research: A Look Back and a Look Ahead,” about European Union courts have been studied over the last 30 years.

We’ve learned a ton about the Court of Justice and how it works with local courts and people in court cases. But it is important to point out the not-so-great parts:

1. Parochial tendency: Turns out, this research field has been rather stuck in its own bubble, not really using new theories from other places and literatures.
2. Old School Methods: Methodology is often outdated and not really keeping up with how we need to prove things — not least causation — in research today.
3. Data, Where You At?: There’s also this issue of not having data, especially on what national courts are up to when they’re not dealing with the big EU Court within the preliminary ruling procedure.

Game Plan for the Future

I suggest some ideas to bring the field forward:

• Mixing Theories: Researchers should borrow more from judicial behaviour research in other settings, especially theoretical insights. This could really help the field.
• Getting Smarter Research Designs: Time to get creative and use experimental and quasi-experimental methods to make empirical findings more credible.
• Tech to the Rescue: It’s time to embrace new tech, webcrawling and Natural Language Processing (NLP) — which have been making great strides — to dig up new info and insights at scale.

In short, it’s a call to action for shaking things up in EU judicial research.

Does fasting during Ramadan influence the decisions of Muslim judges? I was interviewed by Belgian newspaper De Standaard about a study just published in Nature Human Behaviour.

In the great chess game of French politics, tomorrow’s parliamentary elections could set the stage for an unexpected king’s gambit. Emmanuel Macron, fresh from the laurels of re-election, hopes to consolidate his power with a parliamentary majority. Yet, it’s Jean-Luc Mélenchon, leading an eclectic coalition of the Greens and the left, who’s making the seismic waves.

In an anecdote that captures the fervour of this political moment, I had a group of Mélenchon enthusiasts – aware of my French roots – pitch camp at my Brussels doorstep last night. Their mission? To sway the unswayed for what could be a stunning upset. Should they succeed, Macron, a centrist by temperament, may find himself in a coalition with Mélenchon, a figure who embodies the antithesis of his political ethos.

The potential cohabitation of these two starkly different figures is not just a political curiosity. It’s a study in contrasts: Macron, the champion of liberal economic policies, against Mélenchon, the leftist stalwart with a flair for the dramatic. For Mélenchon, this is the culmination of a long political journey. For Macron, it’s an unpalatable scenario, but not one devoid of strategic advantage.

Consider the economic backdrop: Mélenchon ascends with promises of expansive public spending and progressive economic reforms in a time of inflationary pressures and economic uncertainty. His ambitious agenda – lowering retirement age, freezing prices on necessities – might play well in the gallery but faces the harsh realities of a constrained fiscal space and the specter of economic slowdown. Remember, governments rarely gain popularity when navigating economic headwinds.

Mélenchon, with his penchant for grandiosity, risks overpromising in an environment where delivering might be structurally constrained. This disconnect between populist rhetoric and economic feasibility is not new in French politics, but it’s a tightrope that Mélenchon will have to walk with exceptional skill.

Macron, meanwhile, retains the presidency’s robust control over foreign policy. He also wields the constitutional power to dissolve the National Assembly and call for new elections – a tool used effectively in the past by French presidents to recalibrate the political landscape in their favour.

Entering his second term, Macron’s political capital is not in abundant supply. Even with a parliamentary majority, the economic downturn will likely erode his popularity further. Yet, political history offers a counterintuitive insight: in periods of cohabitation, it’s often the prime minister who bears the brunt of public dissatisfaction with economic conditions. French voters, not known for their patience, may quickly grow disillusioned with Mélenchon’s inability to match rhetoric with results.

In essence, a year or so of cohabitation might be a strategic retreat for Macron, allowing him to regroup and potentially emerge stronger against a background of unfulfilled promises and economic stagnation under Mélenchon’s watch.

Writing scientific papers is tough and convincing a top academic journal to publish your work is even tougher. Is there a single academic who has never felt a pinch of discouragement upon seeing her article rejected? An interesting question is how we react to this sort of negative feedback: Do we take the resolve to do better and revise our work? Or do we just give up? In a paper with Nicolas Lampach and Monika Glavina published in the Journal of Law & Courts, we asked this question about courts submitting references to the European Court of Justice. Submitting courts, even those inexperienced with the preliminary ruling mechanism, don’t appear to be chilled by negative feedback. Better still: they seem to learn from the experience and upgrade the quality of their references.

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.