A fragment of a class about a famous article by Brandeis regarding information privacy as "right to be left alone"

 

How to attain academic novelty in a legal article?

Everybody is striving for novelty in their academic (legal) papers.

The novelty might be linked to actuality, a new phenomenon (facts, decisions, books, etc.) with legal dimensions to be explored. Hence, an academic writer might be at first a (legal) critic of actuality. 

The danger of the approach is that such novelty is a 'fragile commodity' that 'vanishes' quickly. Also, such a topic will push different authors to write articles about it. Therefore, the importance of the message (as a distinct voice) will be lost in no time.

A much better strategy would be to search for novelty as a new legal perspective about a phenomenon.

This novelty of approach or insight is not linked to the actuality of the issue (without excluding it either). Instead, it can be reached by choosing a topic on the 'edge', by crossing borders into unexplored 'fields'.

On a deep level, crossing such an edge might imply using analogy or comparison as a heuristic. Such analogy signifies the analysis of deep, structural correspondence between two fields by examining a better-known area's relations (or relation with relations) to another, less-known domain. In cognitive sciences, the approach is called the 'mapping'[4] between the two fields[5].

More precisely, one might use an analogy from a legal field to another legal area. We can give the example of cyber-attacks dealt with by criminal law on a national level. But the problems of cyber security can be analyzed by analogy with similar instruments of International law. One might examine (speculate from an empirical ground) whether a cyberattack can be a cyber war (international law crime) and the conditions for qualified it as such. 

Comparison as a heuristic process

Another productive instrument for creating new topics is legal comparison broadly defined (within the same branches of different legal systems, or among other theories or various doctrines, etc.). By contrast, one might put in parallel components of different legal systems. 

That will automatically create a first questioning since there will be differences between compared entities, besides similarities which make comparison possible. Then, in a second moment, the researcher might examine the reason for such differences. The comparison might also create a dynamic in the paper, which would remain purely descriptive without it.  

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[1] Transatlantic answers ..., infra this blog.

[2] Professor Richard Delgado made the suggestion that legal writers should "find one new point, one new insight, one new way of looking at a piece of law and organize your entire article around that. One insight from another discipline [italics are from us], one application of simple logic to a problem where it has never been made before is all you need." Cf. Richard Delgado, How to Write a Law Review Article, 20 USF L. REV. (1986) at 449.

[3] Cyber attacks…, infra this blog.

[4] The structure-mapping theory states that an analogy between analogues A and B is a set of mappings between the two sets of predicates (relations) that represent A and B. A mapping is an alignment of corresponding parts of the source and target analogues. 

Mappings are subject to the following three rules:

1. Mappings between attributes are primarily or entirely ignored;

2. Mappings between relations, e.g., R(a0, a1) to R(b0, b1), which are emphasized where,

3. They enter into systems of relations, e.g., R_(Ra0, Ra1) to R_(Rb0, Rb1). Cf. Gentner, D. (1983), "Structure-mapping: A theoretical framework for analogy", Cognitive Science, 7, 155-170.

[5] The most spectacular use of analogies in hard sciences is the case of Kepler, one of the most creative geniuses. 

Apparently, his creativity was linked to 3 factors: frequent use of analogy, different analogues (pairs of metaphors), and attention to inconsistency. Kepler worried about inconsistencies and was driven by them to push old analogies or, sometimes, to reject them. However, apparently, these two factors play different roles. 

Attention to inconsistencies was a motivator of conceptual change. 

In contrast, the analogy was the process through which conceptual change occurred.

Cf. Dedre Gentner et al., "Analogy and creativity in the works of Johannes Kepler", in T . B . Ward, S . M . Smith, J . Vaid (Eds), Creative thought: An investigation of conceptual structures and processes (pp. 403-459). Washington DC, American Psychological Association. Mutatis mutandis can apply the same logic for an analogy between legal domains.

The deep continuity in US Trade Policy between administrations (Obama, Trump, Biden)

In May 2021, I presented to a teleconference held in Le Havre, France, a paper underlining the deep continuities between Democrat and Republican US administrations in trade policies. 

The article appeared as "Continuity and Change in US Trade Policy Towards China and Beyond" in a collective volume of  Amandine CAYOL, Hye-Hwal SEONG, Remus TITIRIGA, Pierre CHABAL (eds.) Eurasian challenges to international economic law after BREXIT and in the context of the COVID-19, Peter Lang, Brussels, visible also at https://ssrn.com/abstract=4023085

The purpose of the paper was to determine whether the disruptive trade actions of the Trump administration concerning Eurasia and China would be pursued by the Biden admin­istration.

Trump administration followed within a crescendo the antidumping and countervailing duties favoured already in the last years by President Obama.

The Trump administration also took a bolder stance in using different US legal instruments (out of WTO but not forbidden by WTO) to adopt trade sanctions against China and other countries. However, according to expert commenters, a Hillary Presidency would have also used such mechanisms, albeit under different rhetoric. 

There was also a continuity in the escalation of US actions inside the WTO from Obama to Trump, who finally blocked the Appellate Body dispute settle­ment.

Given such deep continuities, I considered that the trade war with tariffs and sanctions on China adopted by the Trump administration will remain in place for the time being under the Biden administration.

Comparison as an interpretative tool of the European Union judge

We live in a world where many legal systems interact continuously. Some of these interactions can be described as ‘legal transplants’ in-between national laws. In this way, sometimes, entire legal structures are borrowed from a foreign country. 

That was the case for the Swiss Code of Obligations, which Turkey has adopted in the 30s. In the beginning, at least, the Turkish judges may have interpreted a concept by examining its meaning in Swiss law, which implied the use of comparison between Turkish and Swiss legal systems.

Another interesting case, this time of ‘synthetic’ transplant, relates to the Civil Code of Ethiopia, designed by great comparative scholar, René David,  who took into account rules or institutions from France, Italy, Greece, Switzerland, Israel, etc. The Ethiopian judge, willing to clarify, an obscure term in the new code may have used multiple comparisons between his own system and each specific disposition's origin.

But such ‘legal transplant’ may also occur between legal systems of a different kind. For example, International Law may borrow concepts and rules from national law. The international legal scholars have played a role in this transposition since they were fed by their national legal culture. 

More recently, in many disputes of highly technical issues, the International Courts or the Arbitrators have resorted to long-established institutions from private national laws and hence use comparison in interpretation.

The most interesting 'laboratory' for such an interpretative use of comparison based on solution from national legal systems is, or more exactly was, European Union (when it was called European Community).

If this brief presentation catches the attention of the reader, he may find a still evolving draft of  about

Comparison as an interpretative tool of the international judge: the European Union case, visible at https://ssrn.com/abstract=3648866.

The first part of the paper circumscribes the meaning of comparison as an interpretative tool. A step-by-step approach clarifies the meaning of comparison in general, comparison as interpretation in particular, and realizes an overview of comparative interpretative practice by international tribunals and identifies hidden cases when the European judge employed the comparison.

The second part of the article examines the emergence of comparative interpretation in topic case-laws relating to the European Community of Steel and Carbon (ECSC) Treaty. In the 50s and 60s, there was an unseen dialogue of the doctrine, the Advocates Generals, and the European judge about interpreting the ECSC Treaty's undetermined normative concepts. The outcome of this dialogue was the occurrence of a 'standard' interpretative comparison, a multi-comparison, which was used by the European judge ever since. 

The third part of the article places this 'standard' comparison within a methodological perspective. This perspective offers the ground for 'translating,' methodologically speaking, the 'standard' comparison as a subset of the literal or grammatical interpretation belonging to an objective system of interpretation. The 'standard' comparison is strongly linked to multi-juralism (existence of many independent and parallel legal systems of Member States) and loosely linked to multilingualism (the legal use of multiple languages within EU), both essential characteristics of the European legal system.

This powerful and misunderstood tool of the judge had an essential role in the European Union's historical evolution. It may also provide hints and solutions for national or international cases where legal pluralism is at stake.

The reshaping of Global Trade by the Administration of President Trump

During the last 4 years, I watched closely the International Trade actions adopted by US President Trump. That attention materialized in 2 successive articles evaluating these actions and their probable impact on Global economic relations. 

A first article analyzed developments before June 2018, when it was presented to a conference in Bishkek, Kyrgyzstan, followed by a recent publication in a collective volume (The 'fair-trade strategy' of the new U.S. administration concerning China in "Cross-border exchanges: Eurasian perspectives on logistics and diplomacy," Peter Lang, Brussels, 2020). It is available at https://ssrn.com/abstract=3648057

It focused on the Trump Administration's trade initiatives about China framed in the American push for restructuring the global economic order.

The first section considered President Trump's business background to explain his economic focus and non-conventional economic policy and policy approach in general. Allying this with an assessment of the US economic and geopolitical position, I identified the patterns, directions, strategies, resources, and capabilities in the service of international trade policies.
The second section examined the trade actions of the US Administration regarding China. We applied patterns identified in the first part to understand the logic of American trade actions and evaluate their possible outcomes.

The following article analyzed developments before June 2019, as an update of a presentation made in April 2019 to a conference in Almaty, Kazakhstan. 
It analyzed the Trump Administration's trade policies with Eurasian state or non-state actors and will soon be published (Globalization 2.0? Legal implications for Eurasia of the new US trade-policies in "The Belt-and-Road initiative and the challenge of change in the legal and political systems of Eurasia," Peter Lang, Enjeux Internationaux, Brussels, 2021). It is available at https://ssrn.com/abstract=3648866 

The introduction assessed the new US trade policy's goals and tools through President Trump's open declarations. The first section identified the trade policy's strategies/tactics by analyzing the new US administration's actions, such as the tariffs on aluminum and steel or the renegotiation of KORUS or USMCA agreements.

A second section used this frame to apprehend the US Administration's trade actions concerning actors, such as the EU, Japan, China, or WTO, and determine the possible outcomes with disruptive impact on the last three decades' globalization process.

We estimate that the US administration's international trade policies will have a more consequential impact on global order than the Soviet Union's fall in the 90s.

Three key trends in Defense and IT in the coming five years

On 28 February 2020, I made a presentation during a videoconference held in Malta. 

The conference was about security trends related to developments in ICTs (such as cloud computing, data mining, etc.) and the fundamental breakthroughs in Artificial Intelligence (Deep Learning). 

Many US Defense technologies of the past three decades spread throughout modern society (Internet, GPS, self-driving cars, etc.). We extrapolated these kinds of developments in the future. 

We have used open/free documentary resources (DARPA's programs, white papers on US military strategy, public initiatives concerning US defense, etc.).

This presentation can be seen  at https://www.researchgate.net/publication/340076687_Three_key_trends_in_Defense_and_IT_in_the_coming_five_years

It adds and updates the analysis in my paper of 2016 about  "Autonomy of Military Robots- Assessing the Technical and Legal ('Jus in Bello') thresholds."

The right to privacy and right to personal data and their connection to the Gonzales case

In a recent article (visible at https://ssrn.com/abstract=3235087), I explored the right to privacy and the right to personal data and their connection to the Gonzales case of the EU. 

Protection of the right to privacy concerning publications has a centenary history in Europe at both the national and supranational levels. 

However, protections of personal data about digital processing are different. Few national constitutions or international instruments recognize the right to protection of personal data, and even fewer jurisdictional remedies are associated with it. There are some significant exceptions, for example, the EU Data Protection Directive and Article 8 of the EU Charter of Fundamental Rights. 

In my article, I explored these two approaches of protection followed by an exam of their articulation in the reasoning of the European Union Court of Justice on the famous Gonzales case-a decision implementing a “right to be forgotten on Internet” as a right of de-listing a link from a search engine provider.