The Supposed Rise of Empirical Research in European Legal Journals

Over the years, I have heard various colleagues say they thought empirical legal research (ELR) has been on the rise. Some see this as a positive development, making law and legal research more evidence-based and diverse. Others are critical, for example because ELR projects are more successful when it comes to obtaining grants than doctrinally-oriented projects.

For sure, I have seen many ELR workshops, conferences, symposiums and other events been organized over the years. Nevertheless, I have wondered why there would be an increase of ELR. I have not seen more colleagues who have been enthusiastic about ELR actually start doing more ELR. This year, together with two co-authors, I took the time to go analyze the proportion of empirical articles in the 2008 – 2017 period for a large number of European-based legal journals.

The result? The evidence for an increase is weak at best. The results do not provide convincing evidence (if any) for an increase of the proportion of empirical articles. We did find some other interesting effects, such as more prestigious journals being more likely to publish empirical articles than less-prestigious journals, and older journals being more likely to publish empirical work than younger journals, but not at an increasing rate.

The study obviously comes with some limitations, since the time period that was examined is limited, because an analysis of the submitted articles may paint a different picture, or because ELR scholars may tend to publish in US-based journals rather than European-based journals. Nonetheless, the findings do raise the question why ELR has not become more popular.

Various reasons can be identified that form obstacles for ELR to grow. The availability of data that can be analyzed is undeniably important. But perhaps more important is training. To my knowledge, legal academia has not been considerably changed in that it implemented a more empirical focus in the programs offered to law students. As a result, academic staff is not incentivized to obtain empirical skills, and because graduates are not trained empirically, they are unlikely to see the importance nor will they see the necessity to recruit empirically trained law school graduates. It therefore seems that if we want to increase the use of empirical legal research, it starts in legal education. And by simply start doing it.

The article can be found here or here.


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When Historic Injustice Meets Tort Law: the Case of the Srebrenica Genocide

In July 1995, thousands of Muslim Bosniak men were deported from the enclave Srebrenica and subsequently killed by the Bosnian Serb army under the command of Ratko Mladić. The UN had declared Srebrenica a “safe area”, but the Dutchbat soldiers were not able to prevent the capturing and killing of the victims by the Bosnian Serb army. Years later, the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Court of Justice (ICJ) ruled that the massacre constituted genocide.

Numerous investigations were carried out regarding what happened and why. The reports that were produced suggest that the highly ranked officers within the Royal Netherlands Army withheld evidence, and that the Dutch Ministry of Defense refused to take responsibility or blame for the massacre. And so the growing frustration of the relatives led to lawsuits against the UN, France, the Netherlands, and even an individual officer. Interestingly, Dutchbat soldiers are currently also preparing a claim against the State of the Netherlands.

In a groundbreaking decision in 2013, the Dutch Supreme Court upheld a Court of Appeal’s decision where the Netherlands was held liable for the death of a muslim Boasniak Dutchbat employee and two family members of a mulsim Bosniak UN translator. On 16 April 2014, the court of first instance held that the State was also responsible for the deportation of the 300 (at least) muslim men from the compound that was under the control of Dutchbat. Importantly, the court only held the State responsible for the victims who were deported from the compound – not for the ones who, for example, fled to the forest and who were captured by the Bosnian Serbs. Both the plaintiffs – the ‘Mothers of Srebrenica’ – and the State appealed the decision.

On 27 June 2017, the Court of Appeal held that those in charge of Dutchbat should have known as of 13 July 1995 that the men who were being transported (deported) from the compound were in real danger of being subjected to inhumane treatment. As a result, the State acted negligently by actively facilitating the deportation of those staying on the compound. Additionally, the court decided that the State was negligent for not having offered the option to the male refugees to stay on the compound. Because of this, at least according to the court, the refugees were withheld a 30 percent chance of not being exposed to inhumane treatment.

A combination of reasons explains how tort law can produce such outcomes. First, the individual protection paradigm requires a focus on the interests of individual plaintiffs (or groups of legally comparable plaintiffs). This is why the court distinguished between various types of victims (e.g. those who were on the compound on or after 13 July 1995, those who were not on the compound before or on that date) and different instances of negligence (e.g. facilitating the deportation, allowing men to leave the compound knowing there was a real danger of being subjected to inhumane treatment).

Second, tort law compares the situation the victim is in with the situation it would have been in had the wrong not occurred. Although the 30 percent number is arbitrary, the court does justifiably apply the ‘loss of a chance’ concept by considering that the fate might have been (but not necessarily would have been) different had Dutchbat taken other measures. There was a realistic chance that the compound would have been overtaken and the men would have been deported and possibly killed had Dutchbat offered resistance. Consequently, it is logical from a tort law perspective that the victims are not entitled to the full amount of damages.

Third, tort law defines wrongs and losses in a particular way. The damages that some of the plaintiffs will receive are damages for pain and suffering due to the inhumane treatment of their relatives. Awarding monetary compensation for pain and suffering is common in tort law. Relief that consists of obliging the State to take responsibility for its military decisions and for the State withholding information and evidence are, however, not. Such needs are not recognized as legally relevant interests and are consequently neither claimed by plaintiffs nor ordered by courts.

Cases like the Srebrenica case illustrate that tort law is not designed for repairing historic injustice like the Srebrenica genocide. Who was and was not on the compound at the ‘right’ time is to a large extent based on coincidence and consequently irrelevant from a plaintiff’s perspective, but highly relevant from a wrongdoer’s perspective, particularly concerning the amount of damages that would need to be paid if the number of those entitled to damages increase. Furthermore, it is unlikely that the plaintiffs were looking for a correct application of the concept of ‘loss of a chance’, or that they were in any way seeking to restore the situation had the wrong not occurred – no relief will make their relatives return or undo the pain and suffering. Instead, and as empirical research indicates, plaintiffs were likely to have been seeking recognition, an acknowledgment, information about what happened and why, and the opportunity to have a voice.

Repair of historical injustice calls for a different application of tort law, or perhaps a different tort law. However, an alternative that performs better at addressing victims’ and relatives’ needs while balancing their interests in a fair way is not readily available. Developing such an alternative would not only be a good research project, it could also improve the handling of claims involving historic injustice. Until then, plaintiffs will need to be explained why tort law can produce, for them, incomprehensible outcomes.

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Oxford Journal of Legal Studies Article: Do Apologies Ordered by the Court Serve A Purpose?

An employee seeks an apology from his employer for inadequately handling a complaint against him. A sexual abuse victim pursues an apology from the Catholic Church for the harm that was done by one of the priests. And a homosexual man feels discriminated against by a radio host who made degrading statements about homosexuals.

Can these individuals claim an apology, and will a court order one? The conventional wisdom is that apologies that are claimed or ordered do not serve a purpose because they lack sincerity and violate the right to freedom of expression. In a recent publication, I challenge conventional wisdom by demonstrating that apologies do not need to be sincere in order for them to serve a purpose.

If sincerity cannot be the decisive criterion for determining whether apologies should be ordered, what criterion should then be decisive? Based on available empirical research, case law and scholarly research on apologies, the article identifies the purposes of coerced apologies and uses these purposes to draft criteria for determining when ordered apologies are appropriate. It is concluded that an ordered apology is a fulfilment of a legal requirement rather than a statement of genuinely held feelings.

A proportionality test is developed in order to determine the permissibility of ordered apologies. The findings in the article refute the sincerity myth, offer suggestions as to how to overcome freedom of expression concerns and call for a more welcoming approach towards court-ordered apologies.

(URL: Gijs van Dijck, ‘The Ordered Apology’, Oxford Journal of Legal Studies (advance access))

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Claims Against Overcrowded Trains and the Litigious Society

Stichting ConsumentenClaim has announced to start legal proceedings against Dutch Railways on behalf of a passenger. The question that the court will essentially need to answer is whether overcrowdedness in trains resulting in passengers frequently not having seating constitutes a breach of contract.

To determine whether such a claim will be successful, several legal questions need to be answered: does Dutch Railways have an obligation to perform?, does it merely have a best efforts obligation, and if so, what should be understood under ‘best efforts’?, when can a passenger reasonably expect a place to sit on the train?, how do passengers prove they have suffered a loss?, and what losses does a passenger exactly suffer? Some argue that passengers’ claims do not stand a chance. Others see such claims as society becoming more litigious and may condemn passengers of overcrowded trains who file a claim. One may even see them as despicable money-grabbing plaintiffs.

Qualifications like these are likely unjustified. Empirical research has demonstrated what victims need in case they suffered a harm or loss. They do not primarily or not only seek monetary compensation, but (also) tend to seek recognition, an apology, disclosure (what happened, and why), closure, and prevention. A train passenger is not likely to seek money, but a place to sit.

It is also known that once frustration builds, there will be individuals who seek legal enforcement to have their needs met. This could explain why train passengers are now willing to join StichtingConsumentenclaim in a battle against Dutch Railways. They may hope or expect that a claim will provide incentives to Dutch Railways to solve the issue of overcrowded trains, or at least reduce the issue.

The problem, however, is that the solution that contract law and tort law provide, the law of damages in particular, is rather one-dimensional. Even though most jurisdictions allow for different types of relief, monetary compensation is by far the most popular tool in the legal toolbox. This explains why train passengers resort to monetary compensation: the legal system forces them to. The emphasis (or: fixation) on monetary compensation is so strong that it becomes difficult to consider alternatives. This not only, partly or predominantly, explains why train passengers file claims against Dutch Railways, but also why they claim against physicians who have erred or against Malaysian Airlines after the downing of the MH17 plane.

As a result, claims such as the one against Dutch Railways expose the inability of contract law and tort law, the law of damages in particular, to properly address victims’ needs. They reveal the limitations of the monetary perspective that dominates the law. The real challenge for the legal community is therefore not to formulate an answer to questions such as ‘Did the train passenger suffer a loss?’, but to find an alternative to the dominant monetary perspective.

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The Future of Empirical Legal Research in the Netherlands

Last Tuesday was the Empirical Legal Studies (ELS) conference organized at the Dutch Supreme Court (‘Hoge Raad’) in the Hague by the Nederlands Studiecentrum Criminaliteit en Rechtshandhaving (NSCR). All of a sudden, ELS is everywhere in the Netherlands. Last July, there was the first European Conference on Empirical Legal Studies in Amsterdam. Recently the Empirical Legal Studies initiative (ELSi), hosted by the Ius Commune Research School, came on the block. Now the NIELS conference. And upcoming January, a conference will be held by the VSR.

What particularly seems to be becoming more popular, is to talk about ELS – there is no evidence for an increase of the number of empirical legal studies that are conducted in the Netherlands. Some evidence by one of the presenters at Tuesday’s conference even suggested that the number of journal articles that present original empirical research (i.e. through data collection by the researcher / author himself or herself) has remained constant over the years. This observation is surprising, as multidisciplinary research may attract more funding, Ministries are calling for more empirical research, scholars seems to welcome more empirical legal research, and all of the Judiciary Council’s research is empirical. Moreover, empirical legal research that is conducted in the Netherlands is primarily done by researchers who have a social scientific background, with or without a law degree (Elbers 2016; for English summary click here).

Why is ELS seemingly on the rise but not resulting in more empirical research? One explanation is that there are other forces in play. While ELS is becoming more popular, the Dutch bar association has imposed stricter requirements as to the courses and topics Dutch law schools should teach. As a result, the vast majority of the course credits are and should be assigned to courses in private law, criminal law, and administrative and constitutional law.

It is a widespread belief that the bar requires Dutch law schools to only teach doctrinal scholarship to students. I doubt whether this belief is correct. Teachers may have more flexibility than they think regarding exposing students to different perspectives and approaches than merely a doctrinal approach, as long as they focus on the topics the bar wants them to focus on (e.g. tort law, criminal law). The issue, therefore, may not be so much the bar and its requirements, but the perception of legal academia of what the bar requires law schools to do.

Consequently, there are two conditions for empirical legal scholarship to flourish in the Netherlands. First, it will only evolve if teachers no longer believe that courses have to be taught doctrinally. Second, law schools need to stop believing that they need to hire doctrinally oriented teachers (at every level, from lecturer to professor) to teach their courses. This means that the success formula for empirical legal research in the Netherlands may ultimately be rather simple: just do it.

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