Culture, Institutions, and Comparison of Legal Education and Scholarship—A Response to Rob Howse

In a post on verfassungsblog.de I compare two reports on legal education and scholarship: one concerning Germany from the German Council on Science and Humanities (Wissenschaftsrat), the other concering the United States from a task force of the American Bar Association. I find the Wissenschaftsrat’s decision to maintain an emphasis on doctrinal reasoning, while promoting interdisciplinarity and theory, to be prudent—especially for the German situation. By contrast, I find that the ABA report, in its emphasis on teaching skills and tools and implicit rejection of interdisciplinarity, to threaten what has always been a strength of law schools in the United States.

I am sorry to find that Rob Howse has taken offense, but I am also a little surprised by its direction. I expected some of my points to be controversial. But I did not think the basic claim that German legal scholarship excels more in doctrine while American legal scholarship excels more in interdisciplinarity would be one of them. After all, that view has become almost a truism in comparative law. It is a big part of what animates the Council’s report. And it is a difference I am reminded of each year when going through the materials for my comparative law class at Duke.

Of course, the difference is not an absolute one. There is excellent doctrinal scholarship being written in the US—but, then, for a long time it was rarely published in the top law reviews (a trend that may be in the course of being reversed, to some degree). And there is excellent interdisciplinary work coming out of Germany—but it is still marginal. To recognize such cultural differences is our daily job as comparative lawyers; it is not at all the same as stereotyping or cultural determinism. After all, there are many reasons for the difference. Some reasons lie in tradition—the high regard for jurists in Europe versus the high regard for judges in the US ...

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