Kristoffel R. Grechenig and Martin Gelter (Max-Planck-Institute for Research on Collective Goods and Fordham University School of Law) have posted The Transatlantic Divergence in Legal Thought: American Law and Economics vs. German Doctrinalism (Hastings International and Comparative Law Review, Vol. 31, No. 1) on SSRN. Here is the abstract:
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Economic analysis plays a major role in the American legal discourse, while its position in the German-speaking legal debate remains comparatively limited. In Germany and Austria, a widespread aversion against law and economics can be observed among legal scholars. This article advances an explanation for this divergence on the basis of two main factors: First, American legal realism enjoyed great success, whereas the German free-law movement failed to leave a lasting impression. While legal realism transformed American legal thought and opened up the discourse to policy arguments, the predominant German legal theory emphasizes the internal coherence of the legal system, and assigns only a limited role to external elements. Second, the different philosophical roots and attitude towards utilitarianism and consequentionalist thinking in general can explain why law and economics takes a prominent position in the US legal academia.
Very interesting and recommended.
For an alternative view, see The Market for Legal Innovation: Law and Economics in Europe and the United States by Thomas S. Ulen & Nuno Garoupa (both University of Illinois College of Law), which is also highly recommended.
I wonder whether there are institutional factors that have played a causal role. The system of legal education and the academy are organized very differently in the U.S. and Germany. German legal academics receive both undergraduate and postgraduate training in law. The postgraduate training (a PhD in law) is (to the best of my knowledge) training for an academic career. American legal academics receive undergraduate training in disciplines other than law (including economics) and postgraduate training in a professional-school environment (that is rarely aimed at an academic career). American universities encourage interdisciplinary work; German universities do not seem encourage interdisciplinary collaboration between law, the social sciences, and the humanities. Because American legal scholars are not inculcated in norms of scholarship during a post-JD experience (with rare exceptions), they may be more open to interdisciplinary approaches. Because German scholars are so inculcated, they might be less open to the methods of other disciplines.
Would the striking divergence between German and American approaches to interdisciplinarity have emerged in the same form absent these institutional differences?
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