Legal Origins, Doing Business, and Rule of Law Indicators: The Economic Evaluation of Legal Systems

Proceedings of the Annual Meeting-American Society of International Law, Annual 2011 | Go to article overview

Legal Origins, Doing Business, and Rule of Law Indicators: The Economic Evaluation of Legal Systems


This panel was convened at 11:15 a.m., Thursday, March 24, by its moderator, Renaud Beauchard, of the law offices of Peter C. Hansen, who introduced the panelists: Corinne Boisman of the University of Metz; Kevin Davis of New York University School of Law; Carolin Geginat of the World Bank Group; and Ralf Michaels of Duke University.

INTRODUCTORY REMARKS BY RENAUD BEAUCHARD

We will talk today about "Legal Origins, Doing Business, and Rule of Law Indicators: The Economic Evaluation of Legal Systems." Behind that rather technical and dry title hides a very important question with strong policy implications. That question could be well-researched as economic analysis, the referential language, the meta language to articulate a common ground between different legal systems and assessing their merits. In other words, in the critical process of evaluation of legal institutions, does economics trump other, neutral forms of analysis, such as legal history, comparative law, legal sociology, or anthropology? That is exactly what the deviation of the legal origin or the law of finance movement has assumed, and all that with the institutional support of the World Bank.

They identified a kind of legal blueprint limited in its scope of application to commercial and company law, a sort of legal technology in some way guaranteeing economic growth. We had in turn the era of the beauty contest between legal systems, and they found that this blueprint closely resembles the common law much more so than the Napoleonic civil law.

I would like to note at this stage that my accent betrays me. I am indeed from the Napoleonic. I was born and raised in the Napoleonic family, and you might infer that I am biased against the legal origins. It's not so much in fact the ranking of the legal system and the critical evaluation of legal system that I have a problem with. It's more of the econocentric approach of the legal origins and its claim to certainty and universities.

I would like to illustrate that by a phrase by Oliver Wendell Holmes. "The logical method and form flatter that longing for certainty and for repose, which is in every human mind, but certainty generally is an illusion, and repose is not the destiny of man." I would like the focus of this panel to be largely on the method more than on the beauty contest.

So, to discuss the legal origins today, we have assembled a panel of distinguished experts with very diverse expertise. Our first panelist, Kevin Davis, is the Beller Family Professor of Business Law at New York University School of Law. Professor Davis received his B.A. in economics from McGill University and LL.B. from the University of Toronto and then LL.M. from Columbia University. He served as the law clerk to Justice John Sopinka of the Supreme Court of Canada, and later as an associate in the Toronto office of Torys, a Canadian law firm. He then started an academic career at the University of Toronto, before being appointed at NYU. Professor Davis has been a visiting assistant professor at the University of Southern California, a visiting fellow at Cambridge University's Clare Hall, and a visiting lecturer at the University of the West Indies in Barbados. Professor Davis' current research is focused on contract law, the governance of financial transactions involving developing countries, and the general relationship between law and economic development. And Professor Davis will introduce the legal origins movement and will discuss its influence and world developments.

Our second speaker, Corinne Boisman, a French national, is a professor at the University of Metz School of Law. Ms. Boisman spent two years doing research at Northwestern University's Law School in Chicago for her doctorate and relational contract. Ms. Boisman specializes in business enterprise agencies, secure transactions, and comparative law. She provides a very useful contribution to the Institut de Droit d'Expression et d'Inspiration Francaise (IDEF), which I cooperate with as well by providing and analyzing Anglo-American case law for the annotated code of the OHADA (l'Organisation pour l'Harmonisation du Droit des Affairs en Afrique). …

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