Legal Expertise in Theory and Practice
Dr. Friederike Bahl
Prof. Dr. Tobias Eule
Dr. Fatma Derya Mentes
This workshop sets out to explore the role of experts and expertise in creating, shaping and negotiating law and its conceptual and theoretical framing. We are interested in how legal expertise is established, transformed or lost in different contexts.
Beyond traditional sources of legal expertise from academia and legal practice, courts have been heavily relying on expert opinions for topics ranging from financial consultancy to cybersecurity. This workshop asks: How can we conceptualize “experts” and “legal expertise” from different theoretical perspectives and how do these perspectives impact law-making? What does “expertise” mean for practice theory, discourse theory, systems theory, and critical theory? Does the concept of “expert” have the same meaning for all theoretical stances? If not, how do they complement each other or challenge one another?
In addition to theorising legal expertise, this workshop seeks to discuss it through empirical case studies. We ask: What counts as expert knowledge? How do different contexts change the perception of expertise? What role do experts play in processes of law(-making)?
We invite contributions from all disciplines that engage with either one of the two proposed strands, or both. We are especially interested in presentations that address the temporalities and geographies of expertise as well as its role in legal practices. How does expertise change over time? How does it fare when subjugated to transnational networks and how do these practices reaffirm or transform it? What is the relationship between the “legal profession” and expertise? In light of the growing importance of “non-legal experts” as well as artificial systems that provide legal expertise, we would like to investigate the different ways in which these constitute, challenge or affect processes of norm-creation, regulation and legal interpretation.
25th February 2021
Julia Dahlvik, University of Applied Sciences FH Campus Wien
Axel Pohn-Weidinger, University of Strasbourg
Citizen, ombudsperson and caseworker: The enactment of conflicts over legal expertise in bureaucratic interactions
Discussant: Christian Boulanger, Humboldt University of Berlin
In this contribution we explore the role of legal expertise in the context of ombuds institutions. We discuss findings from our empirical case study – including a survey as well as qualitative interviews, participatory observation and document analysis – on the Austrian Ombudsman Board, a supreme body that investigates maladministration on the basis of around 18,000 citizens’ complaints each year. The paper focuses on three complementary perspectives: On the one hand, we explore how the educational background of the three ombudspersons – especially whether they are trained as lawyers or not – affects the written and face-to-face interaction with citizens. On the other hand, in the interactions we study, the so-called ‘consultation days’ held regularly throughout the Austrian provinces, not only the ombudspersons but also the case-handling staff appear as legal experts. Their situational role is a second aspect our paper explores. Finally, we study the ‘legal expertise’ of citizens as laypersons who are sometimes experts in the legal area of their problem. Many of them have been dealing with their problems for several years before addressing the ombuds throughout multiples encounters with bureaucracy. The paper explores different forms and roles of expertise in legal practices and investigates how legal expertise is established, transformed or lost in this specific context. Our data also allows to study how the differently understood ‘experts’ constitute, challenge or affect processes of legal interpretation. Eventually, we develop some ideas what these findings might suggest for the meaning of ‘expertise’ in the context of practice theory.
Nora Rzadkowski, Ludwigsburg University of Applied Sciences for Public Administration and Finance
Great expectations: The capacity of judges to cope with foreign legal orders
Discussant: Friederike Bahl, Hamburg Institute for Social Research
Section 293 German Code of Civil Procedure determines the boundaries of legal expertise in transnational constellations. Judges are expected to know their own legal order, of course. They are also expected to be “fluent” in EU and international law. Only if it is inevitable to know the laws of another state to decide the case at hand, they are allowed to admit their lack of expertise and to order an expert report.
How can the differentiation between non-expertise in foreign law and (presumed) expertise in EU and international law be explained? And what are the consequences? Especially, how does it influence the way judges deal with a lack of expertise?
Empirical research suggests that judges tend to avoid the application of foreign law (foreign law of other states as well as EU/international law). Starting from the normative assumption that EU and international law should be applied, it will be argued that beside practical measures to facilitate access to foreign legal orders it is important to understand the reasons rooted in our legal culture that lead to a gap between the great expectations in the competence of judges to cope with foreign legal orders and their actual capacity to fulfil these expectations.
Doctrinal literature and case law on section 293 will be analysed in order to show which expectations and convictions of what constitutes legal expertise determine the legal practice beyond the borders of national legal orders.
Birgit Apitzsch, Sociological Research Institute (SOFI) Göttingen
Legitimacy as a task: The perception and construction of legal expertise and trust within the German judiciary
Discussant: Ulrike Schultz, FernUniversität in Hagen
The acknowledgement of expertise is one of the central pillars of professionals’ status, as it is ingrained in institutions of professional socialisation and control, or achieved through power struggles or through the legal processing of cases. This presentation provides an actor-centred view on the perception and construction of expertise and legitimacy within the German judiciary. It is based on a multi-method research project combining expert interviews, semi-structured interviews, group discussions and an online survey among judges and public prosecutors in Lower Saxony. The presentation centres on the questions of how they perceive their status and the acknowledgement of legal expertise by other legal professionals and laypersons, and on responses to this. The results point to a change of professional self-conceptions that emphasises the importance of everyday professional practice and communications for an active construction of legitimacy and trust in the judiciary.
Johanna Mugler, University of Bern
The temporalities and geographies of international tax expertise at the OECD in Paris
Discussant: Lars Döpking, Hamburg Institute for Social Research
Before the last financial crisis, there was little public awareness of international tax norms, rules and standards. In a time of public austerity, however, citizens around the world are more interested in the erosion of the corporate income tax base than ever before. That leading politicians, in response to public pressure, would actively address the multilateral dimensions of international tax affairs is a rather new phenomenon. Until then led the complexity of these matters mostly to a situation, where state and non-state tax experts negotiated international tax norms, rules and standards in a relative vacuum.
This paper is based on ethnographic research amongst international tax experts involved in the making of international tax norms at the OECD in Paris during the Base Erosion and Profit Shifting (“BEPS”) initiative. After I sketch the institutional and historical set-up of international tax law expertise in specific key locations since the 1920s my workshop contribution will explore the following two questions: (1) How does the recent politization of this field change the role of tax experts in the tax lawmaking process, their modus operandi and/or their structural privileges? (2) How does the extensive public and political interest in tax norms change what counts as tax expertise in the first place in this setting and where it is generated and coming from? How far does the perforated lawmaking vacuum make space for alternative and counter-expertise that challenges the historical clustering of tax expertise in specific locations?
Luisa Piart, Max Planck Institute for Social Anthropology (Halle/Saale) & Martin Luther University Halle-Wittenberg
Legal Expertise as a Tool of Global Governance in the Shipping Industry
Discussant: Tobias Eule, Hamburg Institute for Social Research & University of Bern
My contribution scrutinizes the shifting relations of legal expertise, market dynamics and labour relations in the shipping industry. It is my contention that legal expertise is instrumental in redefining oceans as spaces of free competition and free maritime circulation by enabling businesses to opt out of legal regulations and obligations.
The shipping industry is premised on the legal fiction that ships form parts of a state’s territory. Ocean-going vessels sail between and beyond different national jurisdictions, but they are subject to the rules and regulations of the state whose flag they fly. Flag states thus confer their nationality upon ships by registration, and the law governing labour and employment on board is therefore primarily the law of the flag state. Legal experts turn forum shopping into a reality that makes it possible for shipowners to sidestep labour standards of their own countries. Yet at the same time, the shipping industry is governed by an increasing body of international norms, so that by all accounts the work of seafarers on board has become extremely bureaucratic and standardized.
Based on ethnographic fieldwork in the ports of Hamburg and Panama, my contribution questions the role of legal expertise in maintaining forms of
deregulation, as well as producing new forms of regulation. The emphasis on legal practices in the shipping industry will provide insights to theorize legal expertise at large: Of particular importance will be the production and circulation of maritime legal knowledge, the tensions between technical and legal experts within flag state administrations, as well as the legal training of ship labour inspectors.
Suzana Sawyer, UC Davis
Metamorphosis and Expertise: Repudiating and Rendering Judicial Decisions Across Jurisdictions in a Chevron Legal Saga
Discussant: Laura Affolter, Hamburg Institute for Social Research
In 2014, a US district court ruled that a 2011 Ecuadorian ruling that found the Chevron Corporation liable for $9 billion was procured through fraud. Given its US-court-determined illicit provenance, the Ecuador ruling was deemed unenforceable in the United States. In 2018, a Tribunal of the Permanent Court of Arbitration in The Hague found that the Republic of Ecuador had committed egregious wrongs in subjecting Chevron to trial and upholding the ruling against it. Notably, the decision of the US District Court and that of the PCA Tribunal were tightly entwined. Chevron rehearsed the same legal arguments before each judicial body (although toward different but related ends) and it engaged many of the same experts.
This paper explores the role that two experts in digital forensics played in facilitating Chevron’s efforts to transform an Ecuador contamination lawsuit into a US corruption counter-suit and a European commercial arbitration. The legal trilogy that constitutes these transformations is complicated, spanning more than two decades, three continents and diverse legal claims. Yet amidst all the complexity, experts were key in executing the logical steps necessary for this metamorphosis—transmuting a controversy over whether a multinational corporation contaminated the environmental into, first, a controversy over whether plaintiffs’ counsel and a sovereign judiciary were embroiled in a racketeering scheme, and then into a controversy over whether a nation-state violated an international trade agreement. Here I show how the scientific findings by two rather unassuming (but handsomely paid) digital forensics experts furthered the momentum whereby a toxic tort became a RICO conviction and a BIT breach.
My contention, of course, is not that these experts performed this metamorphosis on their own. Rather, I want to probe what decontextualized expertise can achieve when situated within an elaborate fraud narrative espoused by a powerful corporate litigant. Admittedly, “expertise” in the legal arena has not been the focus of my scholarship. As such, I am reticent to generalize beyond my legal trilogy and warmly welcome suggestions of how I might do that. Presently, I see this case study as encouraging inquiry into what can happen when a legal process in one jurisdiction appropriates happenings in a prior jurisdiction and relies on experts who do not fully understand those happenings to impute significance into them.
26th February 2021
Franziska Brachthäuser, Freie Universität Berlin
The Argument of Continuity - An Examination of Legal Dogmatics Using the Example of the Right to Strike
Discussant: Alexander Stark, University of Hamburg
„In der Frage, ob und wann Arbeitskämpfe unter dem Gesichtspunkt einer Verletzung des Gewerbebetriebs zivilrechtlich unerlaubte Handlungen sind und daher zum Schadensersatz verpflichten, hat sich jedoch in letzter Zeit in Theorie und Praxis eine sehr bedeutsame Wandlung vollzogen, indem die Bedeutung des § 823 Abs. 1 BGB für den Arbeitskampf erkannt wurde. Diese Lehre ist im Anschluss an den sog. Zeitungsstreik vom Mai 1952 und die von Hueck und mir erstatteten Gutachten entwickelt worden.“ (H.C. Nipperdey 1965)
The then Supreme Labor Court (BAG) president Hans Carl Nipperdey could not have described the emergence of legal dogmatics more clearly. Until 1952, it was undisputed in German jurisprudence and literature (including Nipperdey himself) that strike was to be assessed as intentional tort. However, in an expert opinion on the political newspaper strike of 1952, Nipperdey argued in favor of a reassessment according to the dogmatic legal concept of “an established and practiced enterprise.” Unsurprisingly, the BAG – now under the presidency of Nipperdey – adopted this legal standpoint in 1955. Alas, neither Nipperdey in his expert opinion nor the court ruling mention that this legal rethinking actually led to increased union liability. Though continuously contested in legal literature, the BAG jurisprudence is maintained as standing jurisprudence (ständige Rechtsprechung) until today.
This study uses this legal reassessment of strike to examine the emergence of legal expertise/dogmatics. It thereby argues for a historical reconstruction of standing jurisprudence. One hypothesis is that with the jurisprudential argument of continuity, a court’s ruling in a case today is somehow rooted in its historical reasoning.
The study proceeds as follows: After introductory reflections on legal dogmatics and its sociological research potential (I), it considers the moment of legal change as central to the development of dogmatics (II). The case study is then divided into two parts: First, it presents the historical development of the legal assessment of the right to strike (III). Secondly, it analyzes jurisprudential patterns of legal reasoning in this case (IV).
Andrea Kretschmann, Centre Marc Bloch
Expertise in law: 'from above' and 'from below'
Discussant: Clemens Boehncke, Hamburg Institut for Social Research
This input into the discussion elaborates on the theoretical understanding of expertise in socio-legal studies. It argues that conceptually socio-legal studies have a rather narrow view on the legal expert. This is due to the prevailing socio-legal conception of modern law as part of a differentiated society and building upon this, a role-theory
understanding of legal expertise. Against this background, the expertise of laypeople remain underestimated and thus, underconceptualised. In my paper, I therefore suggest the further theoretical integration laypersons in the law.
Konstantin Hondros, University of Duisburg-Essen
Distributed legal expertise in music creation and legal evaluation processes: The integrated professional roles of legal professionals and music experts
Discussant: Alain Pottage, SciencesPo
In my contribution, I would like to give insights about ongoing qualitative research in the music business concerning the relationship between legal professionals – music lawyers, but also judges – and music experts. Both are part of regulatory uncertain music creation as well as legal evaluation processes at court, yet it is not always clear who is the expert of what. Typically, the legal professional is associated with legal, the music expert with musical expertise. In practice, these two realms have fluid boundaries and as well legal professionals depict musical expertise, and – even more so – music experts show a great deal of legal expertise. This becomes observable when grey areas of copyright law are addressed, which is the main legal framework of concern when legal issues arise in the music business.
Based on analyses for my dissertation about creating so-called “soundalikes” – pieces of music that sound confusable similar to already existing music, I take a look at the relationships between legal professionals and music experts twofold: first, I want to discuss the practical influence of music experts in soundalike creation processes and how they interconnect legal and music expertise in order to circumvent grey areas of law. Second, I want to show how legal expertise of music experts is problematized within legal evaluation processes at court. To do so, I will relate to the critical claims about music experts voiced by the dissenting opinion in the world-renowned copyright case about musical similarity “Blurred Lines”.
Valentin Feneberg, Humboldt University of Berlin
Authority vs Assumptions. A new approach to the application of country knowledge in asylum adjudication
Discussant: Livia Holden, University of Oxford & University of Paris Nanterre
Research on the use of extrajudicial expertise in court often focuses on how the authority of this knowledge is assessed by judges (its sources, its (in-) validity, its quality), and how knowledge is transferred into a legal setting. This is particularly true of research on Country of Origin Information (COI) in asylum adjudication when scholars examine if COI is used correctly either substantially (do judges construct the “right” reality of a country of origin?) or procedurally (do judges consider all relevant guidelines on COI application?). However, this distracts from another relevant issue
of the practical application of COI: In asylum jurisprudence, country knowledge merges with judges’ factual assumptions and background knowledge, leading to competing constructions of the reality in a country of origin which are decisive for either the award or the rejection of a protection status. Therefore, it is not so much contested expertise but contested assumptions which result in inconsistent decision making. Analysing jurisprudence of German courts on Syrian draft evaders, a focus is put on these assumptions and their relation to extrajudicial knowledge and legal expertise. This concerns assumptions about the government’s “character” or the motivation of men evading military service. The proposed presentation contributes to the empirical strand of the workshop. However, it also seeks to develop a new perspective on the application of expert knowledge in asylum adjudication as it reflects the challenges for expert knowledge’s function to reduce discretion in decision making when its rather factual assumptions which make the difference. Moreover, the discursive relation between extrajudicial knowledge and legal doctrine will be discussed, asking how the application of country knowledge affects not only the process of legal interpretation, but also the development of refugee law doctrine
Carolina Angel Botero, Universidad de Los Andes in Bogotá
What knowledge allows building a river with rights?
Discussant: F. Derya Mentes, Hamburg Institute for Social Research
I am currently beginning a research project on interlegal translations at the Court in cases related to water ontologies at the heart of the RIVERS project, an ERC grant coordinated by Professor Liselotte Viaene. Her project is inspired by a series of judicial and legal decisions in which judges and legislators around the globe, but in particular, Colombia and New Zealand, have granted rights to natural entities. On the second work package, we are interested in understanding the role of anthropologists in Court, specifically in their translations of different ways of knowing water, that of indigenous and Afro Colombian communities. We are engaged with the question of how anthropological expert testimonies deal with legal tensions that appear when conceptualizing rivers as subjects of rights. Alongside anthropological expert testimonies, natural scientists also play an important role in the definition of natural entities as a subject of rights, making the question of expert knowledge and nature more complex. What different types of knowledge coincide in the Court to allow a river or any other natural entity to become a subject of rights before the law? And how they cancel or complement indigenous knowledge in the Court?
These are the questions we are working on and hope to contribute to the debate proposed in the workshop. We are looking forward in exchanging ideas and different views with other colleagues.