Method, Community and Comparative Law: An Encounter with Complexity Science

Assume that you are attending a symposium on comparative law being held in conjunction with the annual meeting of the American Society for Comparative Law. Comparative law scholars from many universities are present, and a few legal practitioners are attending as well. One speaker begins as follows: “This talk will be about complex adaptive systems—the emerging science of complexity.” Based on experience in similar contexts, I would anticipate several common reactions among members of the audience. The most common might be “he’s in the wrong room.” Another set of reactions is likely to be “What? What’s that? Never heard of it!” A third might be “What possible relevance can that have for comparative law?” Beneath these specific responses—and less likely to be expressed—is an assumption that this type of scientific discussion is alien and potentially inimical to the world of comparative law. The “scientific” language of the subject is likely to seem foreign to many, and the idea of a tie to comparative law is often perceived as not only foreign, but also perhaps threatening. I use this imagined scenario as a window into the topic of the symposium: methodological approaches to comparative law. It provides a perspective on thinking about comparative law methods and a means of locating those methods in relation to other potentially relevant academic pursuits. The reactions to which I refer reveal much about comparative law at the outset of the twenty-first century

The Future of Article 82: Dissecting the Conflict

Underlying the recurring debates over the future of Article 82 EC are competing images of what its goals are and should be. Such debates about the interpretation and application of Article 82 are not new, and they are also not likely to end, because the legal concept of “abuse” is sufficiently abstract and capacious to allow multiple conceptions of its goals. Where goals become contested and controversial, however, debates can lead to confusion and uncertainty rather than progress in thinking about the issues, and this threatens to occur in the context of discussions of Article 82 and its future. Clashing images of the goals of that provision have yielded much uncertainty about the future of the law in this area. They have also distorted images of both the existing law and of newer alternatives to it. This impedes the capacity of European judges and administrators to apply the law consistently and effectively. It should be valuable, therefore, to identify and assess the lines and contours of these debates and the images of law, economics and European integration that swirl within them

Anthropology, History and the More Economic Approach in European Competition Law - A Review Essay

In several works over the last decade, Wolfgang Fikentscher has reminded us that there are ways of viewing competition law that need not begin and end with economics—its concepts, its language, and its science-based normative stance. Discussions of competition law in the United States and increasingly in Europe generally dismiss or marginalize views of competition law that are not circumscribed by economic science. In the works reviewed here, Fikentscher takes issue with the so-called “more economic approach” to law, particularly, competition law. As he has said on other occasions, he favors “a less economic approach” to competition law. Many in Europe and elsewhere may find value in some of his perspectives and insights, regardless of whether they accept his conclusions. Moreover, although his views clash with current orthodoxy in the US and Europe, they represent concerns that are far more frequently found in other parts of the world, but that are there often less fully elaborated