Themes


The basic idea behind the decision to take up a third career was that I wanted to use the time I have gained to do more theoretical work in the academic field, in an attractive environment, and in the time remaining to provide a consultancy service that differs in part from the norm. My motto, "The Art of Creating a Life while Making a Living", will permit a marked shift in the focus of my activities in the areas of theoretical consideration of my preferred themes at my preferred academic institutions and with the colleagues and academic teachers I prefer to work with.

Theory

The emphasis is on theoretical work in the fields of "The Global Lawyer", "The Role of the Corporate Sector", "Strategy and Law" and "Law and Innovation" and my favourite subject which has the working title of concepts and contours of Swiss-US cultural exchange – an example of transatlantic relations.

I want once more to learn, read and reflect on a subject myself, and only then to start writing on that subject. I intend this to be on a non-programmatic basis, tailored to my personal inclinations and the time I have available, and spread over a number of years. My preference will be to spend three months of each year, from September to November, living and working in Cambridge, Mass. I am interested in integrative, interdisciplinary and international issues that will represent a continuation of my earlier studies in greater depth. My preference would be to take topical and issue-related thinking and studies (and persons, i.e. lawyers, rather than systems, i.e. the law) as my starting point, and move further along the edges of this "no-man's-land" between applied practical activity as a lawyer and the predominantly purely theoretical concerns of academia, the choice of theme being often determined by the customary field of tension that exists between so called “theory” and so called “practice”.

I am interested not only in the generation of knowledge, but also in the examination of the necessary preconditions for the generation of knowledge, and in particular the examination of the necessary preconditions for the effective implementation of that knowledge. The application-based orientation will continue to be important, although in this area the focus is also always on arriving at of theoretical principles. However, arriving at theoretical principles under the heading “academic” is related to arriving at theoretical principles in the spheres of “Strategy and Law”. There, the focus is to a greater extent on the directly application orientated development of theoretical knowledge. This may find its expression in many places, above all in many forms, and also with a view to different application purposes. One significant and guiding perspective will be a critical focus on the United States, whereby the particular cultivation of a transatlantic perspective, with a view to co-operation and the re-establishment of appropriate communication, may play a crucial role.

With my own pleasure and personal enjoyment in mind, I always look forward to active participation in the life of the Harvard Law School and the Kennedy School of Government. To these may be added, at a later stage, the Law Schools of the University of Michigan and of New York University. I am particularly looking forward to project- related study with colleagues and friends in Switzerland at the Institute of Management in St. Gallen, at the Chair for Security Policy,at the Center of International Studies of ETH in Zurich and at the World Trade Institute at the University of Berne. I also set great store by the friendly relationships with colleagues in “The Salon”, in the General Counsels Club, in the General Counsel Network, in the academic reading club and the American Legal Culture Club and the regular events that these lead to.

Themes
"The Global Lawyer"

With this somewhat ironic working title, I am continuing the work I have been doing over the past ten years, which consists mainly of examinations of the effects of globalization on legal systems, legal professions and professional service firms, and legal education. Thus the series of publications based on a working document with the title "The Changing International Practice of Law - Aspects of International Compatibility and Competitivity of Legal Systems, Legal Professions and Legal Education", which I began in the Spring Term of 1999 as Visiting Scholar and Fellow at the European Law Research Center of the Harvard Law School, will be continued. These publications include "Internationalisierung der Rechtsausbildung und Forschung - eine Agenda für die interdisziplinär ausgerichtete Ausbildung zum in Wirtschaft und Management tätigen International Lawyer" (which has been translated into English), "The Future of the Legal Profession" and "The Internationalization of the Practice of Law". In the subject area "The Global Lawyer", I would like study, in greater theoretical depth, a conceptualization of the “persons”, as roles and role models of lawyers, which I described and presented in a preparatory way, together with Peter Murray, in the article "The Education and Training of a New International Lawyer". This is an inductively developed synthesis of appropriately generalizable areas of this "New International Lawyer", an area which is admittedly, bearing in mind the changing tendencies of internationalization, a highly demanding and confusing “multidimensional game of chess”. In the transformation brought about by internationalization and globalization, the preconditions for the activities and the professional roles of these key players in globalization should be reformulated and placed on a new basis. It seems important to me to take the European perspective into account. I am currently working on a manuscript with the working title “On the internationalization of the role of the lawyer – a European perspective” with the chapters A. The US environment of the international lawyer, B. International lawyers as professionals and international law firms as professional service firms C. The internationalization of legal education and research and D. Lawyering and Beyond – strategic dimensions of legal work in the international field.

"The Role of the Corporate Sector in International Governance"

In the area of study "The Role of the Corporate Sector in International Governance", the intention is to continue the work contained in "Conflict Prevention: The Untapped Potential of the Business Sector" by Andreas Wenger and Daniel Möckli, with the origins of which I was associated as an “ideas generator” and “sparring partner”. In my opinion, this area has not had any of the theoretical attention appropriate to the economic, social and political significance of the corporate sector. The corporate sector itself seems to be insufficiently concerned with the analysis of the formulation and also the safeguarding of its interests which are bound up with this role. I would like, from an integrative and also a European viewpoint, to guide the strands of discussion in the field of "Corporate Responsibility" in the direction of an "International Corporate Responsibility", and to combine these with the ideas on International Governance which are cultivated at the Kennedy School, and to position them within the sphere of the currently running "Globalization Studies". This represents a contribution to the emancipation and appropriate integration of this further key player on the international economic stage into classifying concepts of thought, values and regulation.

"Law and Innovation"

When it comes to the issues of "Law and Innovation", I would like, in a predominantly agenda based way, to consider the question of the legal framework conditions as a component of the competitive capability of a small country. One example of this approach is the text "Recht, Rechtsberufe und Rechtsreputation als Faktoren der internationalen Wettbewerbsfähigkeit der Schweiz, das "Legal Black Hole" der zugrunde liegenden Rechtskonzeption" (“Law, Legal Professions and Legal Reputations as Factors in Switzerland’s International Competitiveness, the “Legal Black Hole” of the Underlying Concept of Law”). This subject area, which appears to be beset by antinomies, should at least lead to the formulation of preconditions for the optimization of this relationship in the structuring, application and implementation of law. The guiding principle that "Imagination is more powerful than knowledge" (Einstein) may be particularly helpful in this area in gradually shifting the points of emphasis away from “decision jurisprudence” towards “creative jurisprudence” and ultimately “action jurisprudence”. Law and lawyers should associate themselves as allies with the intellectual activity of “innovation”, dedicated to what is really new, so that the designation “enablers” can be deservedly applied to the law and to lawyers.

"Strategy and Law"

In the more theoretical area of the consideration of the subject "Strategy and Law", which also includes the posing of more theoretical questions in the application orientated field of activity under "Law and Strategy", the main subject of study should be the reason why, in company models, the law is accorded the position appropriate to its significance only to a less than optimal degree, and why, in the strategy theory taught in management science, the law is similarly not taken into consideration in any strategic dimension, and also why we have such difficulty with the strategic dimension of law and lawyers in the structuring, application and implementation of law. One example of this area of work is the text "Risk and Response, zur Notwendigkeit eines strategischen Umganges mit Catastrophic Risks in Grenzbereichen technologischer und wissenschaftlicher Entwicklungen" (“Risk and Response: the Necessity of a Strategic Approach to Catastrophic Risk at the Margins of Technological and Scientific Developments”). It may become clear that there is a gap in our knowledge here, which ultimately leads to law and lawyers only being able to apply their specialist competence in a way which is unsatisfactory and incomplete. In respect of the application orientated foundation of juristic activity in the sphere of “Strategy and Law” through “expert knowledge”, I shall undertake the different drafting, essential to strategic legal advice, of technical knowledge which is not academic in the actual sense of the word, but which is to be described as theoretical.

Teaching

I will continue to hold my special seminars on US legal culture and the planning and structuring of legal transactions at the University of St. Gallen in Switzerland. Together with Professor Günter Mueller-Stewens I am also continuing as co-teacher of the Master of International Management program on professional service firms. The didactic mediation of knowledge will in part be integrated into my advisory work. This will apply particularly in the principal areas that will be added to strategic legal advisory work: strategy development by professional service firms, the generation and imparting of knowledge for experts by experts and reputation management. This is concerned with specific teaching work in a non-academic context which largely occurs as part of advisory work.

Legal activity aimed at the transmission of legal cultures

The encounters with smaller numbers of people at “The Salon”, in the General Counsels Club, in the General Counsels Network, the Academic Reading Club and the American Legal Culture Club have become firm and important elements in my professional life.

In a further area of activity aimed more at the transmission of culture, I shall continue with project of founding two new series of books, despite the difficulties being encountered. The series "Access to Swiss Law" would be dedicated to a systematic and theoretically based, but practically orientated, opening up of Swiss law in the English language. The series "Transatlantica - Culture, Language and Law in a Transatlantic Context" was intended to assist in providing contributions, from varying perspectives from both sides of the Atlantic, towards the re-establishment of a better understanding between the historically closely interconnected cultures of politics, economics and the law. The realities in the world of publishing in Switzerland and abroad, characterized as they are by an incareasingly excessive emphasis on commercial thinking, have not been helpful in this context either.

In the context of the “free choice” element of this third career, I would like to find room for other forms of expression on matters of law and legal culture. Thus I look forward to occasionally writing articles on this subject in the Neue Zürcher Zeitung, and to writing columns in various media.

As far as themes and projects are concerned, naturally also selective participation in mostly non-public meetings of experts, on invitation, will gain a new importance, such as participation in the Bitburger meetings and at the Innsbruck Symposium, or at the annual conferences of the American Society of International Law in Washington, the Rüschlikon Conference on Information Policy at the Kennedy School of Government, the traditional annual conferences of the International Institute for Strategic Studies (IISS) in London, and in the specialist discussions in smaller groups which will be held at academic institutions where I shall be staying. It will be part of such events that periodical reports will be given at such places on studies and lines of thought as they arise. Some of these conferences of experts may also be described in journalistic reports.

All this will be undertaken in line with the pleasure principle, as the opportunity arises, as part of a more general discourse with a clear American connection and with due consideration being given to the transatlantic perspective. The breadth of themes described may suggest the overloaded agenda of a formerly overworked commercial lawyer. This will, I hope, not be the case in view of the “control over my own time” which I have gained. However, it must first be done, lived and experienced.