Friday, March 4, 2022
Wednesday, February 23, 2022
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.
[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,
Monday, February 14, 2022
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.
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