Sectorplan research project ´Judicial Lawmaking´

The selected candidate will contribute to the research project ‘Judicial Lawmaking in a global legal order: rationalization, participation and the role of scientific evidence’. This project is part of the sector plan for Dutch Law Schools funded by the Ministry of Education, Culture and Science. The research project is led by prof. dr. J.C.A. de Poorter and prof. dr. R.A.J. van Gestel and intends to contribute to the scholarly debate on the methodology of judicial law making in a globalizing world. The research project focuses on public interest litigation in cases with potentially far-reaching consequences that go well beyond the individual case. We see these cases on all court levels from the supranational (e.g. CJEU: Test Achats) to the disctrict court level (e.g. District court The Hague: Urgenda) and from consumer protection to refugee protection and nature conservation. The involvement of courts in public interest litigation is not without problems, though. Courts have no direct democratic legitimacy. Therefore, they have to rely on other sources of legitimacy, especially when they serve as occasional rule makers. What does that mean for how courts settle disputes and for the methods of decision making they apply? In this research project, we will focus on the role of empirical data and scientific evidence to support judicial law making, especially in cases with transboundary effects where major policy decisions are at stake. Our proposal represents the first stage of what we hope to become a more extensive interdisciplinary and transnational effort to investigate new methods of law making. However, we start by focusing on courts and the way in which they use of empirical data and scientific evidence to construct legal norms instead of pretending to find the law as is still often the way in which judicial decision making is presented.

The PhD project

The PhD position the department of Public law and governance in cooperation with the department of Private law and business law has to offer within the context of the sectorplan grant on Judicial Lawmaking concerns the role of courts in public interest cases, in particular when courts are called upon, often via class actions, to correct executive or legislative decisions by certain governments. Think about climate change cases, prison reform cases, or cases regarding desegregation of public schools. In a number of, sometimes high-profile cases, courts intervene via injunctions or other kind of court orders, which impose new rules upon government bodies. What many of these cases have in common is that courts are basically developing new law for which they need to take the consequences of their decisions into account. After all, the reduction of greenhouse gases needs to be economically possible, prison reform measures may not endanger public safety, and court orders to desegregate schools should not impair educational achievements.

It is fair to say that the consequences of judicial law making in public interest cases often go (far) beyond the legal position of individual parties, but may have major societal consequences. What is known from the literature is that courts struggle with the way in which they could take the likely consequences of their own law making activities into account, especially when they operate as quasi-legislators that have to construct new norms themselves to, for example, fill-in gaps in existing legislation. Legislators, of course, have stakeholder consultations, regulatory impact assessments, and may occasionally even work with experimental clauses. However, how could or should courts deal with the potential macro-consequences of their decisions? What kind of data do they use and which methods do they apply when producing judicial norms in situations of uncertainty? This project concerns the role of empirical data and scientific evidence in the ex ante evaluation that courts sometimes conduct ´in-house´ or via different sorts of intermediaries, such as: amicus curiae (friends of the court), special masters (court appointed officials that collect evidence or monitor the compliance with court-orders), and other court-appointed (scientific) experts.

The current PhD project aims to study the role of these and other (e.g. law clerks with a scientific background) intermediaries, especially with regard to the way in which they are used to inform courts about the consequences of their “regulatory” decisions. To what extent do these intermediaries, for example, discern between (subjective) stakeholder information and (objective) scientific facts? How do they filter out junk science and inform courts about the validity and relevance of certain scientific data (e.g. scientific reports) for judicial decisions? How do they deal with scientific uncertainty or controversies? In addition, to what extent do they conduct their own investigations in order to, for instance, falsify certain claims by the litigating parties (e.g. holding an agency accountable will lead to a floodgate of claims)? Apart from this, the project will involve a comparative analysis with regard to the warranties built into procedural law or rules of evidence regarding the proper role these intermediaries are supposed to fulfil and what should happen if they do not. Possible jurisdictions for the comparison are: the United States, Sweden, and/or Germany.

The holder of the position will have the following functions:

Research (0,8 fte)

Actively contribute to the operationalization of the research project ‘Judicial Lawmaking’.  

Pursue academically path-breaking research leading to an excellent PhD dissertation

Participate in the Tilburg Graduate Law School courses and activities.

Be an active member of the department by participating in and organizing events and activities, presenting and discussing research output within the department, and representing the department outside Tilburg University.

Teaching (0,2 FTE)

Teach and coordinate courses at the undergraduate and/or LLM programs the department is involved in.

Cooperate with other colleagues in developing new or modifying existing courses.

Applicants must:

Have completed (or will complete by the end of August) a Master in Law. Research Master’s program students are especially encouraged to apply

Have a strong interest in doing research and is able to formulate views, ideas and concepts based upon complex information, as well as construct conceptual frameworks or models.

Have good planning and organizing skills because they are necessary to complete your PhD research in the total period of time.

Be able to undertake certain administrative duties autonomously

Be able and willing to work in a team and undertake administration tasks.

Be proactive and accountable, able to prioritize across responsibilities, and manage varied commitments.

Have excellent interpersonal, as well as strong and effective communication skills.

Have perfect command of English. Knowledge of Dutch would be an asset, but is not required.

Be available to start working as soon as possible and no later than September 2020.

Be present at Tilburg University during working hours, and commit to integrate in the environment provided by DPLG and the Tilburg Law School.

Fixed-term contract: The total duration of the PhD trajectory is four years (48 months).

The total duration of the PhD trajectory is four years (48 months). The candidate will initially be appointed for a fixed period of 16 months. After 12 months, an evaluation will take place. If the performance evaluation is positive, the contract will be extended for the remaining period of 32 months. Selected candidates will be ranked in the Dutch university employment system (UFO). The starting gross salary is € 2,325,- per month (for a full-time appointment) and will raise every 12 months to a maximum of € 2,972,- based on the PhD salary scale of the Collective Labour Agreement (CAO) Dutch Universities.
 
Tilburg University is rated among the top of Dutch employers, offering very good fringe benefits, such as the possibility to determine your benefits individually through a labor choice model and reimbursement of moving expenses. Candidates from outside the Netherlands may be eligible for a tax-free allowance equal to 30% of their taxable salary.

Tilburg University

Serving and enhancing society to help citizens. That is what drives us. It was the opinion of Tilburg University’s founding father, Martinus Cobbenhagen, that those who want to understand society should be actively and consciously involved in it.

This philosophy is still at the basis of what our university wants to contribute. Under the motto of ‘Understanding society’, its 2,000 employees develop knowledge, transfer it to others, and bring people from various disciplines and organizations together. In this way, we want to contribute to solving complex social issues. Our focus areas are economics, business and entrepreneurship, social and behavioral sciences, law and public administration, the humanities and digital sciences, and theology.

Tilburg University values a culture of openness and inclusion. We unite people from many nationalities and backgrounds and embrace the diverse range of perspectives this brings about. We strongly focus on (gender) diversity and offer equal opportunities for all.

The Tilburg Graduate Law School is responsible for education and general support of researchers who wish to obtain their doctorate. For more information: https://www.tilburguniversity.edu/about/schools/law/tgls

Tilburg Law School

Additional information about Tilburg University, Tilburg Law School and the Departments Public Law and Governance/Private Law and Business Law can be found on https://www.tilburguniversity.edu/. 

Tilburg Law School