"A Great Personal and Academic Enrichment"

Professor Hans-Bernd Schäfer taught at the prestigious Center for Transnational Legal Studies (CLTS) for two months in London

How did you come to teach at the CTLS?

The invitation came from Professor Mariana Mota Prado from the Law Faculty of the University of Toronto, who was responsible for the coordination of the curriculum at the CTLS. I knew Ms. Prado from a visiting professorship at the University of Toronto, where a few years ago I gave a lecture on law and economic development. Ms. Prado also works in this field.

You offered a course on the economic analysis of contract and tort law. Why did you choose this topic?

The choice of topic comes from my lengthy research on the economic analysis of civil law. Additionally, it was a new venture and challenge to teach such a diverse group of students from various legal cultures. I had students from continental European “civil law” countries whose civil law is heavily codified. However, most of the approximately 60 students came from “common law” countries, where supreme court decisions, rather than codification, plays a greater role in shaping legal thinking.

The course was therefore designed to be comparative in order to discuss different cases and legal rules with students from England, the US, Italy, France and Germany. From an economic point of view, legal rules often appear as instruments to simplify the teleology of law in order to realize reasonable legal policy goals. However, there are often conflicting values and goals. On the one hand, this explains why, despite very different patterns of argumentation and dogmatic constructions, the conflict resolutions are often similar. On the other hand, different solutions in contract and tort law are also an expression of valuation contradictions. 

What differences do you observe in the legal calculations of students from a common law system, compared to students from a civil law system?

In continental Europe, the legal economy definitely plays a role in teaching and research, but rarely in legal commentary and almost never in jurisprudence. This is different in Canada, the US and Israel. The students from these countries were able to present cases in which the Supreme Court had explicitly pulled from economic literature and criteria, such as the more precise definition of the concept of negligence, the limitation of liability for pure financial loss or breach of contract. In contrast, students from continental Europe often have clearer systematic ideas about important legal concepts. For example, almost all continental European students knew and could use the differentiating method used for calculating damages, whereas those in common law countries presented itemized lists of what they considered in their opinion to be damages. 

There are also differences in contract law, which make German contract law appear to be more provident than the English or American. Despite the fact that the legal concept "culpa in contrahendo" was exported from Germany to more than 60 countries, it was largely unknown among Anglo-Saxon students. Contractual claims resulting from a violation of "good faith" are explicitly rejected in some countries, such as England; in others, such as the US, this legal status has no basis. There is a lot of comparative literature on this subject. Some legal scholars conclude that, for all the different dogmatic and conceptual starting points in contract law or tort law, there are no major differences between countries in the results. I didn’t always have that impression in this course.

We discussed, for example, a case in which the BGH (Federal Supreme Court), based on good faith, inserted a non-competition clause in a contract. Several students from common law countries told me that this was very unlikely in their home country. It could and should be done by the parties themselves when they set up the contract. This has its advantages but also its price. Anglo-Saxon contracts are more comprehensive, longer and more thorough than German contracts, but are also more costly. 

There are also significant differences in legal education. In Germany and some other countries, the focus is largely on learning the process of resolving a legal case, much like in court. An advanced law student can submit a well-founded recommendation for a complicated case after a few hours. This is rare for students in common law countries because their training is less focused on it.

Why is teaching at international institutions an asset to you?

The time I spent here was indeed a great enrichment for me personally as well as academically. I have already taught abroad on numerous occasions, including in the US, and have also overseen international groups of students in an international master's program in Hamburg. But I've never had such a heterogeneous group with so many different backgrounds. The students were also very contentious.

In addition, every week we invited an international guest for an additional lecture and then took him/her out to dinner. That was always a lovely event with a lively atmosphere. These lectures are not to be missed and I recommend them heartily to all of my colleagues. Of course it is also nice to live in London for a few months, an unparalleled world city.