Arthur Dyevre, PhD

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.

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.