Legal Research Values

Often referred to as a Research Agenda.

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The overarching impetus behind my research projects is the belief that frameworks matter, and the desire to understand, discuss and explain any given topic according to its normative underpinnings and overarching context. There is a growing tendency in legal research and empirical legal studies to use different lenses, paradigms, methodologies, values and processes from other academic fields such as psychology, sociology, economics, neuroscience, and political science, to provide answers and solutions to societal problems. Not only do I believe this to be a laudable trend, I strongly advocate for a growing interdisciplinarity that recognizes how law and society are complex - within a systems theory meaning - and warrant a careful analysis of the different inputs and outputs that affect social behaviors, rules and expectations.

But I also firmly believe that Law is a value in itself, it is a social science by its own right, and legal frameworks matter per se[1], however better they can and should be understood and improved through interdisciplinary approaches. I use the term normative frameworks much like Joseph Raz described legal systems[2], although without gravitating towards institutional positivism. Normative frameworks comprehend the legal principles and values that might permeate any given sovereign polity, such as self-determination, human dignity, non-discrimination, equality, and proportionality. They also encompass the more specific legal institutions and norms that pervade each area of law within the legal system, which serve to crystalize the over-arching principles and values by furthering them, and in some cases creating justified exceptions for them, through straightforward rules and processes that allow for human interaction in all the different areas of societal life. Good faith and the duty of care are examples of overarching principles and values within a legal system, which in certain areas of life and human interaction have fostered legal institutions and norms, such as negotiorium gestio and agency rules in Roman and Civil Law, or the modern standards of tort negligence that arose out of Donoghue v Stevenson, and in the aftermath of the Paisley snail. Raz noted that “Laws guide human behavior, help people in planning and deciding on their future course of action, and provide standards for evaluating past or planned actions”[3], but both the role and the rule of Law in that regard can only be legitimately maintained if we don’t forget the importance of normative frameworks.

The dangers of interdisciplinary approaches that fail to give notice or primacy to legal frameworks can be recalled by remembering the heydays of Law and Economics, and the Legal Origins theory for example. Through empirical studies that highly influenced the World Bank’s Doing Business reports, La Porta et al. or LLSV (1997, 1998) advocated for legal transplants from Common Law to Civil Law countries to enact far-reaching reforms to promote economic growth. From the viewpoint of Legal Origins, it was all about finding the “better Law” according to its welfare-maximizing yields. That search however was tainted with a disconnect from the long-standing raison d'être of different legal institutions, the reasons behind why English courts favored adversarial processes, and allowed for – what seemed to be the preferred - almost unconditional private ordering, whereas French and German courts favored inquisitorial processes to temper private market outcomes with state-desired allocations. Frameworks matter precisely because in each polity the social contract that binds us to law and hence with to each other is unique.

The dangers however of legal formalism are equally great. Normative frameworks do not weave the social fabric, they are a part of it, as Lewellyn, Roscoe Pound, and many other legal scholars have noted when suggesting that Law and Society evolve together, and in response to one another. Society is adaptive and complex, comprised of a myriad of agents that communicate and interact with each other in both linear and non-linear patterns with foreseeable and unforeseeable consequences that can gravitate the system towards equilibrium (furthering stability) or chaos (prompting change). Applying normative frameworks without accounting for this feedback that is generated by society (the system), and the interactions and behaviors of its members (the input-throughput-output processes carried out by the system's agents), renders Law ineffective, and in time illegitimate.

As I have tried to convey, normative frameworks allow for social life, but in order for them to continue to do so, they must take into account societal feedback, whether it be social, economic, political, cultural, or even legal feedback. Legal formalism is ill-equipped to do so, as any other isolated methodology is. Society is complex and its complexity can only be understood through interdisciplinary efforts. My research goal is to promote the study and understanding of normative frameworks through interdisciplinarity, and a systems theory understanding of Law.

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My current research interests are directly related to the work I have been pursuing:

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I.??????????????? Revisiting the question of Corporate Purpose

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Within the area of sustainable corporate governance, I explore how corporations can achieve more optimal returns when accounting for a wider universe of stakeholders and their long-term public interests. My argument espouses two paradigm shifts within our understanding of corporate purpose that are necessary for a more inclusive and ethical form of capitalism. The first paradigm shift, between shareholder primacy theory and ethical stakeholder theory, further debunks the false dichotomies instilled by Friedmanomics with regard to our understanding of corporate fiduciary duties. The second paradigm shift, between private corporate interests and long-term public interests, recognizes that corporations should be accountable for how they affect our commons, and for the (im)moral hazards they produce. The genesis of this project was a draft paper presented at the 2019 Lynn Stout Memorial Conference.

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II.????????????? Within the field of Conflict of Laws, related to my experience teaching CoL at Cornell Law School between 2019 and 2023

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In addition to exploring issues of Tribal Sovereignty, I also focus on the procedural changes, and jurisprudential choices, being made by the Restatement (Third) Conflict of Laws. I have started outlining and drafting an article assessing: 1) how the pursuit of substantive justice in horizontal conflicts in the US continues to drive the third restatement despite a return to more rigid choice of law rules; and 2) how the most appropriate relationship test attempts to curtail, or at the very least to mitigate, the type of judicial discretion that ensued from the free-form approach courts adopted to the most significant relationship test in the second restatement. In my paper, I will question if such a pursuit is tenable and if the third restatement does enough to mitigate the concerns of unpredictability, arbitrariness, or judicial discretion brought about by how some courts applied the Second Restatement. I also aim to explore: why the pursuit is substantive justice is necessary within our federalist construct, but must, by its very nature, remain an “imperfect” pursuit; and how to draft a conflict of laws approach that would better safeguard substantive justice while respecting vested rights, justified expectations, and competing claims of state sovereignty, including tribal sovereignty.

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Past Work – A systems theory approach to European integration theory

Magalhaes, Diogo. European Integration Theory and the Future of the European Union After Brexit, Cornell University, Ann Arbor, 2019. ProQuest. Available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3533198

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My work on European integration theory is an example of my commitment to my research values. Whereas the project’s research question itself is perhaps the most pervasive question being asked by most E.U. scholars today — “how should we conceptualize the European Union as a polity in the aftermath of Brexit and Europe’s political, economic and social crises” — my starting point was to challenge the very assumption that “there is something fundamentally new about this period, that shifts and puts into question many of the essential paradigms of European integration theory”.

Guided by the principle that frameworks matter, I started my dissertation project by revisiting the main narratives of European integration, the paradigms under which they operated, and the normative claims that they espoused. I then contrasted these claims with the actual developments and the many paradoxes in European integration, and I concluded that the current European crisis has a dual nature. It is both systemic, and epistemological: it results from the lack of adequate governing principles and mechanisms of European integration — as most scholars have recognized; but, as the vast empirical data demonstrated, it also results from our failure to fully understand and study the integration process as a complex adaptive system.

My research process therefore led me to conclude that behind the European crisis lies a scholarly crisis in European integration theory — as was apparent by the fact that most scholars, while not being able to agree on what the European polity now is, vehemently argue that what it needs is more “loyalty” so that it can become, once again, the normative construct they had initially uncovered. I chose instead to adopt a new methodological approach to study the European Union, one that borrows from systems theory and that takes into account all inputs of European integration so that we can develop adequate governing principles to manage all areas of political, social, economic and legal integration[4]. The salient feature of this process is that it does not operate in reverse; it does not aim to frame a given issue against the backdrop of a pre-existing construct. It presents the legal construct as is, and only then comments on what it should be. Its purpose is to solve the tension between de lege lata (law as it is) and de lege feranda (law as it should be) through intellectually honest discourse.

Related work:

European Integration Theory and Brexit – A Fairytale no Longer?

European Integration Theory and Brexit – A Fairytale no Longer? by Diogo Magalhaes :: SSRN

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Future Work

My long-term research goals are aligned with my main areas of interest, namely sustainable governance, comparative international law in the fields of conflicts of law, constitutional law, and human rights, and they intersect as follows. In terms of corporate law and sustainable governance, as well as in terms of international economic relations through trade regulation, I consider how traditional paradigms may have shifted because of how the divide between public and private interests has become increasingly blurred and artificial. Therefore, we must explore how certain principles rooted in public law, and specifically in constitutional law, must be adapted for this new normative reality. Moreover, these frameworks are necessarily informed by different theories of justice and concepts of dignity, such as are present in the field of human rights.

A systems theory approach to international law and international organizations. This approach stems in part from the critical legal studies movement, and from the law-in-context approach, as well as from more recent approaches regarding legal polycentricity. Building on my own past work and research, I will expand on systems theory concepts and modeling tools to continue to understand how law operates in complex systems (such as the E.U.) and in complicated systems (such as the WTO). Through this research, I ultimately aim to develop a systems theory approach to the concept of law in general. The added value of this project is that it will continue my work that engages with the many scholarly articles being written in the field of integration theory, and the debate over the future of Europe Union[5].

A systems theory approach to the concept of law. The cognitive disconnect between legal theorizing, legal practice, and the perceived value and purpose of law, results in my view from a poor understanding and explanation of the normative frameworks that continuously mold law and society – that is why frameworks matter. But another, more serious consequence of this disconnect between legal theorizing and legal practice has been the devaluing of law itself as a social science, and the shifting of the primacy in solving society’s problems to the second half of all the “law and…” movements, such as law and economics, and law and psychology. Through a systems theory approach, and collaborative interdisciplinary work, I hope to contribute to restoring law as a social science, as well as its standing among other social sciences, in a way that can give meaning to Archibald MacLeish’s understanding that "the business of the law is to make sense of the confusion of what we call human life—to reduce it to order but at the same time to give it possibility, scope, even dignity."[6]

[1] As Joseph Raz noted, “legal systems are the most important of all institutionalised systems and this is so as a matter of logic. It is also a direct result of the defining features of law” in Raz, J., Practical Reason and Norms (Hutchinson: London, 1975).

[2] As Raz noted, these are not technical legal terms. With regards to the term “legal system”, he noted how: ““It may occasionally figure in courts' decisions, but any term can appear there. Although it is occasionally used in legal argument, it has not the character of a technical legal term such as "floating charge" or "fee simple' or "consideration." Nor is the concept important to the day-today administration of law, as are the concepts of contract, ownership, right, duty, and the like. The term is primarily used in thinking about the law, not in the actual use and application of the law.” In Joseph Raz, The Identity of Legal Systems, 59 Cal. L. Rev. 795 (1971);

[3] Joseph Raz, The Identity of Legal Systems, 59 Cal. L. Rev. 795 (1971);

[4] My thesis presents a new narrative of European integration formulated through a law-in-context approach inspired by systems theory. It contributes to the current debate on the future of the European Union by presenting: a revisionist account of the main narratives of European integration; a critique on the methodological choices adopted thus far by integration theorists; the characterization of the E.U. as a complex adaptive system, and the modelling of that system; a qualitative assessment of the social, economic, political and legal inputs to this complex adaptive system; the discussion of Brexit as an emergent phenomenon within the system; an assessment of the future of the E.U. based on computational behavioral patterns within the system; and finally, a normative assessment of how an informed debate should now take place to decide Europe’s future, now that we understand the process of European integration.

[5] Particularly as the process of European integration continues to unfold in the aftermath of Brexit, the rise of populism, and the threat of other exits. Will be the need for further integration? Will the EU have to go beyond the powers currently entrusted to it by the Common Security and Defence Policy (CSDP) in order to face the threats that assail Europe. How to we measure the transactional costs of Brexit, and how do we balance sovereignty with the economic and geopolitical interests of liberalized trade and security.

[6] MacLeish, Archibald. “Apologia.”?Harvard Law Review, vol. 85, no. 8, 1972, pp. 1505–1511.?JSTOR, www.jstor.org/stable/1339904.