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Evaluating Academic Legal Research in Europe

The Advantage of Lagging Behind

Edited by Rob van Gestel and Andreas Lienhard

Legal academics in Europe publish a wide variety of materials including books, articles and essays, in an assortment of languages, and for a diverse readership. As a consequence, this variety can pose a problem for the evaluation of academic legal research. This thought-provoking book offers an overview of the legal and policy norms, methods and criteria applied in the evaluation of academic legal research, from a comparative perspective.
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Rob van Gestel and Andreas Lienhard

The overall aim of this book is to gain a broader overview of the practices, policies, methods and criteria applied in the evaluation of academic legal research in Europe. To this end, we have asked experts from 111 European countries to describe the evaluation practices of legal publications in different contexts, such as the scrutiny by journals and publishers, PhD committees, funding bodies and national research assessment exercises. In addition, we have included a chapter on the EU context in research evaluation because it increasingly affects how research quality is perceived throughout Europe. We were curious to learn to what extent there is consensus about how the ‘quality’ of legal research is determined in a range of countries with different histories, traditions and (academic) legal cultures. In most of the European countries we studied, some similar questions arise regarding the evaluation of academic legal research publications. Institutions for higher education witness growing pressure to develop suitable procedures to evaluate their research. Additionally, increased requirements of accountability for research institutions and researchers to funding bodies have forced researchers and university man¬agers to address this topic.

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Edited by Rob van Gestel and Andreas Lienhard

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Rob van Gestel and Andreas Lienhard

Who are the best legal scholars in Europe in different fields of law? Which journals are considered the best in Europe and what sorts of assessment methods do editorial boards and publishers apply when evaluating manu¬scripts? These are but a few of the questions that are difficult to answer for legal academics, university managers and funding bodies. To outsiders, these kinds of questions might seem trivial, because in most other (social) sciences many scholars know each other’s h-index, there are official rankings of journals and publishers, and editorial boards are quite clear about the standards they apply for (single or double blind) peer review. In law, however, all this is different. Not only do legal academics in Europe publish a wide variety of articles, essays, books, commentaries, case notes and so on, in a broad range of languages, about a wide variety of national legal systems; but unlike scholars in the hard sciences, they also address multiple audiences. The readership of legal scholars ranges from other academics to courts, solicitors, legislators and so on. Without realizing it, the absence of uniform evaluation practices for academic legal publications may have unexpected consequences.

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Rob van Gestel and Marnix Snel

Dutch legal research is in flux. Not only is there an increasing diversity of approaches (doctrinal, comparative, empirical etc.) but traditional legal research is also showing more and more attention to the multi-layered character of European law and to the socio-economic context in which the law is applied and enforced. At the same time, research evaluation methods do not seem to hold pace with these developments. Journals and publishers are still struggling with quality indicators and review procedures (e.g. editorial review, blind peer review, open review). Due to the emphasis in the national research assessment and in the internal research assessment guidelines of law schools, legal scholars are increasingly torn between two worlds: the practice-oriented national discourse, which requires writing for professionals in Dutch and a focusing on a more international, multidisciplinary, and theoretical discourse which demands writing for English language law journals and international publishers. In order to be promoted, Dutch legal scholars are also increasingly forced to apply for external research funding. Here legal scholars have to deal with the fact that their research proposals are usually assessed by mixed panels of social scientists, who have great difficulties with the fact that legal scholars are not used to make their implicit methods and theories more explicit for a broader audience. Moreover, assessment panels cannot rely on more formal quality indicators, such as the ranking of journals and publishers where legal scholars publish their work, because there is no European ranking of law journals or book publishers. The questions is also whether legal scholars should adapt to the (bibliometric) evaluation practices that are common in the social and natural sciences or should try to come up with their own evaluation systems, which can be tailored to the specificities of the discipline. Whatever the choice is that law as a discipline is going to make, we have to be careful not to end up in an academic ‘audit society’ in which performance evaluation becomes a goal in itself

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Rob van Gestel and Peter van Lochem

From a traditional constitutional perspective, regulatory duties should be carried out by persons directly accountable to the electorate. Since the EU legislator frequently outsourced a lot of technical rulemaking to private standardization bodies, this became complicated due to the Meroni doctrine of the CJEU, which seemed to prohibit delegation of rulemaking powers to private organizations. The idea behind this is what Stewart branded the transfer of legitimacy from parliament via delegation to nonelected bodies, which can be held accountable by the people, the ‘transmission belt theory’. We argue that this theory is incapable of warranting the legitimacy and effectiveness of modern regulatory regimes in which private standards and agency rulemaking are used to implement, supplement, and sometimes even replace secondary legislation. We illustrate this by studying the EU’s New Approach and sketch three possible scenarios to remedy existing problems: the agency model, the public–private partnership model and the disentanglement model.

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Rob van Gestel and Jurgen de Poorter

The preliminary reference procedure has long been envisaged as a judicial dialogue between the Court of Justice of the European Union (CJEU) and national courts. However, in reality the relationship between the courts appears to be closer to a relationship of living apart together than to a happy marriage between equal partners. In this contribution, we study the use of so-called provisional answers as a means for national supreme administrative courts to send signals to the CJEU and to start a dialogue about the proper interpretation of EU law. Our analysis of case law and survey results, combined with the outcomes of interviews with judges from ten of the highest administrative courts and with judges and Advocate Generals from the CJEU, reveals there are both practical reasons and fundamentally different views on judicial law making behind the lack of dialogue. On a deeper level, there appears to be a lack of mutual trust that prevents supreme administrative courts from making better use of provisional answers to inform the CJEU and for the CJEU to take the supreme administrative courts more seriously.

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Edited by Roger Brownsword, Rob A.J. van Gestel and Hans-W. Micklitz

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Edited by Roger Brownsword, Rob A.J. van Gestel and Hans-W. Micklitz

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Roger Brownsword, Rob A. J. van Gestel and Hans-W. Micklitz