bluuebunny/crossref_metadata_2025 huggingface dataset:
The German Constitutional Court and Preliminary References—Still a Match not Made in Heaven?
Authors: Lohse Eva Julia
Published: March 2019

So far, the German Constitutional Court (Bundesverfassungsgericht, henceforth:BVerfG) has only made a single preliminary reference to the (now) Court of Justice of the European Union (CJEU), despite frequent rulings on matters connected with European Union (EU) Law. Its apparent reluctance seemed odd considering the atmosphere of dialogue and cooperation which prevails between the non-constitutional courts and the EU courts. This situation might, however, have changed with the preliminary reference from January 2014, proving predictions on the perceived “most powerful constitutional court” and its relationship to the EU partly wrong. The legal effects of its preliminary reference on the interpretation of Articles 119, 123, 127 ff. of the Treaty on the Functioning of the European Union (TFEU) and the validity of Outright Monetary Transactions (OMT) by the European Central Bank (ECB) under EU Law are as yet unclear; although the Opinion of the Advocate General Cruz Villalón was delivered in the beginning of 2015, which did not confirm the doubts expressed by theBVerfGabout the conformity of the OMT programme with EU law. Nonetheless, the interpretative scheme and the normative questions as to the reluctance of theBVerfGremain the same after this single referral and offer explanations as to why theBVerfGhad for nearly sixty years not referred a question to the former European Court of Justice (ECJ).
Europe as a Space of Constitutional Interdependence: New Questions about the Preliminary Ruling
Authors: Cartabia Marta
Published: March 2019

The European continent has become a space ofconstitutional interdependenceand consequently, national Constitutional Courts are now embedded in a constitutional fabric made of national constitutions, European Union (EU) law, European treaties, and conventions. This is all the more evident in the domain of fundamental rights.
Rational Choice and Its Limits
Authors: Towfigh Emanuel V.
Published: March 2019

This Article asks the fundamental question of whether the concept of a market-oriented (economic) order can be reconciled with the idea of democracy from the perspective of rational choice approaches to the law. Europe has been facing great economic challenges for the past years—sovereign debt; fiscal and monetary policy; financial market regulation; trade and investment agreements. Some observers argue that prioritizing an economic rationale in the policy response to these challenges comes at the expense of democracy by undermining its most vital preconditions (such as equality and solidarity), while their antagonists state that in fact democratic decision-making is undermining financial stability and long-term welfare of societies. This Article will establish that both positions contribute important insights and yet display too narrow a field of vision. Combining the arguments puts the cart before the horse: Democratic decision-making undermines, among other things, financial stability—and thus long-term welfare of societies—because it follows a logic that is primarily economic.
Constitutional and Administrative Pluralism in the EU System of Banking Supervision
Authors: Avbelj Matej
Published: March 2019

This Article examines the relationship between the developing European Union (EU) system of banking supervision and the theories of constitutional pluralism. It questions the remaining epistemic, explanatory, and normative value of these theories with regard to the EU system of banking supervision. The argument is broken down into three parts. First, the Article briefly describes the system of banking supervision in the European Union and the pluralist challenges that it spurs. Second, it schematically maps out the leading theories of constitutional pluralism to test, by way of their application to the field of EU banking supervision, their epistemic, explanatory, and normative value. Finally, to the extent that this value has diminished, the Article offers another pluralist theory, not a constitutional one, which could supplement the identified epistemic, explanatory, and normative gaps. This is a theory of administrative pluralism.
Debt, Default, and Two Liberal Theories of Justice
Authors: Suttle Oisin
Published: March 2019

There is a fundamental disconnect between the public discourse about sovereign and external debt in comparison to private domestic debt. The latter is predominantly viewed through a Humean lens, which sees economic morality in terms of contingent social institutions, justified by the valuable goods they realize; while sovereign and external debt is viewed through a Lockean lens, which sees property, contract, and debt as possessing an intrinsic moral quality, independent of social context or consequences. This Article examines whether this Lockean perspective on sovereign and external debt is compatible with the dominance of Humean approaches to the domestic economy. It considers and rejects the most plausible argument for reconciling these views, which emphasizes the different qualities of cooperation in the international and domestic economies. It further argues that many standard objections to a Humean approach to sovereign debt suggest, not the Lockean approach, but rather a Hobbesian international moral skepticism. Concluding that the Lockean approach is unmotivated, this Article instead advances a Humean account of sovereign debt and default. It shows how taking seriously the demand for institutional justification and the idea of persons and peoples as free and equal provides an account of the duties of states—whether creditors, debtors or third parties—in sovereign debt crises. It further examines the implications of each approach for democratic choice about sovereign default.
Forced Migration Governance: In Search of Sovereignty
Authors: Farahat Anuscheh , Markard Nora
Published: March 2019

The European Union (EU) Member States have experienced the recent refugee protection crisis in the EU as a de-facto loss of control over their borders. They find themselves unable to subject entry into their territory to a sovereign decision. In response, the Member States have sought to regain full sovereignty over matters of forced migration, both unilaterally and cooperatively, seeking to govern a phenomenon—forced migration—that by definition defies governance. Unilateral measures include forced migration caps and a search for ways to circumvent responsibility under the Dublin system. Cooperative efforts by EU Member States include the search for ways to more effectively govern forced migration at the EU level and beyond. Supranational EU efforts include the introduction of an internal relocation scheme and support for Italy and Greece in processing asylum claims in so-called “hotspots.” Beyond the EU, Member States are seeking to externalize protection responsibility to third world countries under international agreements, in particular, by returning asylum seekers to Turkey. This Article outlines the unilateral and cooperative governance efforts undertaken and shows that states' sovereign decisions over migration are significantly limited in the case of forced migrants, both by EU law and by international law.
Does Brexit Spell the Death of Transnational Law?
Authors: Michaels Ralf
Published: March 2019

Philip Jessup would not be pleased. Exactly sixty years after he published his groundbreaking book onTransnational Law, a majority of voters in the United Kingdom decided they wanted none of that. By voting for the UK to leave the European Union, they rejected what may well be called the biggest and most promising project of transnational law. Indeed, the European Union (including its predecessor, the European Economic Community), is nearly as old Jessup's book. Both are products of the same time. That invites speculation that goes beyond the immediate effects of Brexit: Is the time of transnational law over? Or can transnational law be renewed and revived?
Psychoanalyzing International Law(yers)
Authors: Nicholson Matthew
Published: March 2019

This Article reads the work of Martti Koskenniemi—arguably the most significant international legal thinker of the post-Cold War era—as an exercise in (Lacanian) psychoanalysis. Excavating the links between Koskenniemi and French psychoanalyst Jacques Lacan, and analyzing the origins of those links in Koskenniemi's debt to the Harvard branch of the American Critical Legal Studies (CLS) movement, it argues that over almost thirty years Koskenniemi has employed psychoanalytic techniques to rebuild the self-confidence of international law(yers). The success of this confidence-building project explains the acclaim Koskenniemi's work enjoys. As international law's psychoanalyst he has defined the identity of the international lawyer and mapped the structure of international legal argument, stabilizing international law's present reality by synchronizing it with narratives of its past. Any attempt to destabilize that reality or depart from present structures into an alternative future must start from an analysis of Koskenniemi's methods and it is in this sense, and not out of a more pure interest in Koskenniemi's work, that this Article deconstructs Koskenniemi'soeuvre.It situates his method, reveals his choices, and explores their limits in an effort to develop (tentative) proposals for a “new” international law(yer) and an international legal future outside the structure that Koskenniemi has mapped so effectively and affectively.
The Changing Nature of Law's Natural Person: The Impact of Emerging Technologies on the Legal Concept of the Person
Authors: van Beers Britta
Published: March 2019

This article discusses the legal concept of the person against the background of technological developments. Emerging technologies are offering radical ways to transform the biological and physical aspects of life. Several legal scholars claim that the technological artificialization of human life also calls for a more artificial, disembodied account of the natural person in law. According to them, the legal distinction between natural persons (human legal subjects) and artificial persons (non-human legal subjects, such as corporations) is becoming diluted and increasingly redundant. This article argues that, in an era of growing technological and postmodern disembodiment, the traditional legal distinction between natural and artificial persons remains important, albeit in a different form. An examination of the legal concept of the person in biomedical law suggests that law's category of the natural person still has its merits, not justdespitethese technological developments, but, remarkably enough, alsobecauseof them.
Law, Comparatism, and Epistemic Governance: There Is Critique and Critique
Authors: Glanert Simone , Legrand Pierre
Published: March 2019

How many scholarly fields have experienced the disappointing fate of comparative law and continued in the grip of a demonstrably indigent epistemology for decades on end? After the early postmodernity witnessed their protracted servitude toLes Grands systèmes'sjejune classifications, facile correspondences, and meagre interpretive return — a predicament which, implausibly, endures in countries as diverse as Brazil, France, and Russia — law's comparatists began taking their epistemic orders from Hamburg and the Hamburgher diaspora. For fifty years or so, they have been gorged on a diet ofRechtsdogmatik, scientism, objectivity, neutrality, truth, and assorted shibboleths. As if these epistemic delusions were not problematic enough, the earlier, obsolete model was eventually revived although tweaked to focus on traditions instead of systems (or families). While critics were occasionally moved to chastise threadbare Hanseatic knowledge-claims — some expressing their concern in conspicuous venues, others harnessing prestigious institutional affiliations — comparative law's orthodoxy, somewhat extraordinarily, has hitherto been able to operate unencumbered by any epistemic challenge whose monographic exposition would have proved decidedly pre-eminent. It is the great merit of Gunter Frankenberg'sComparative Law As Critique, in crucial respects an account at once capital and extensive, that it interrupts, finally, the longstanding deployment of comparative law's mainstream imposture. Frankenberg's refutation is thus well worth restating, and the first part of this review wishes loyally to apply itself to this important representative task not least by affording the author much latitude to express himself in his own voice. Yet, Frankenberg's considerable critical integrity notwithstanding, this essay holds that his epistemic transgression remains too diffident. Specifically, five key concerns at least warranted more subversive epistemic commitments than Frankenberg allows. In the wake ofComparative Law As Critique, the second part of this commentary addresses these contentions with a view to making a case both for comparative law asstrongcritique and for the paradigmatic epistemic turn that has been persistently deferred within the field.
The Diversity of the EU Approach to Law Enforcement—Towards a Coherent Model Inspired by a Law and Economics Approach
Authors: Faure Michael , Weber Franziska
Published: March 2019

Traditionally in the division of labor between the European level and the Member States it was, roughly, the European legislature that set the norms and the Member States that took care of enforcing these norms. In various policy areas, an implementation deficit has been observed, which is said to be partly due to the Member States facing difficulties with the choice of procedural options. For that reason, among others, the European legislature increasingly prescribes the enforcement approach to the Member States to back up national legislation that implements European law. This Article examines the incoherence of the EU's approach to law enforcement in the areas of consumer, competition, environmental, and insider trading laws. After setting out the EU's legal competences with a view to law enforcement, the rather diverse picture—mixes—of private, administrative, and criminal law enforcement in the four areas will be illustrated. The authors then ask the question of whether this divergence can be explained by an economic reasoning with respect to law enforcement. The analysis, however, identifies substantial differences between an ideal enforcement mix and the current enforcement approaches used in EU law. Moreover, it is suggested that the economic approach could be employed to provide more consistency to the use of enforcement tools in EU law.
Unborn and Future Children as New Legal Subjects: An Evaluation of Two Subject-Oriented Approaches—The Subject of Rights and the Subject of Interests
Authors: ten Haaf Lisette
Published: March 2019

The desire to prevent prenatal and preconceptual harm has led to a call for more legal protection for unborn and future children. This Article analyzes the way in which the Dutch legal system has responded to this call by identifying and critically scrutinizing two strategies employed in this response. First, to protect the unborn child from maternal harm, the concept of legal personality has been expanded to include the unborn child, albeit only the viable fetus. This strategy is criticized because its measures are presented as if they follow directly from the existing legal framework, whereas these measures are in fact based on several obscured assumptions and, therefore, bring to bear a new perspective on the concept of legal personality. The second strategy is applied to the future child. Instead of expanding an existing category, a new category is created to offer the future child a place within the law. The future child is addressed as the subject of legal relevant interests instead of rights. Although this strategy seems promising, it still faces difficulties when applied to the future child, which presumably has an interest in non-existence.
Persons and Things in International Law and “Law of Humanity”
Authors: Soirila Ukri
Published: March 2019

Drawing from Roberto Esposito's recent work on persons and things, this Article studies recent attempts to rethink international legal personality. Esposito's work resurrects the claim that personhood operates like a mask, splitting the legal and philosophical world into persons and things. International law differs from domestic law in that international legal personality has traditionally been the prerogative of states, not of (rational) individuals. Yet, this has not completely dismantled the persons/things logic, because the exclusive legal personality of states has continuously threatened to reduce individuals into things in the eyes of international law. It is perhaps for this reason that international legal theorists have long sought to extend international legal personality to individuals and other non-state actors. This Article addresses the most recent attempt, namely an attempt to shift international law towards a law of humanity. Without taking a stance on whether this project is a good idea or not, this Article raises some doubts about whether the concept of international legal personality can help in fulfilling the project's aim, namely to help increase human freedom and wellbeing. This is especially relevant because, regardless of whether legal personality is attributed primarily to the state or the individual, we still remain—according to Esposito—within a theoretical framework in which the dispositif of person necessarily excludes some forms of life in protecting or empowering others.
Constitutional Identity as a Constructed Reality and a Restless Soul
Authors: Polzin Monika
Published: March 2019

The notion of constitutional identity is a recent and enigmatic notion in constitutional law and theory. This Article demonstrates that constitutional identity—understood as a certain constitution-related self-identity of a nation or people—can be constructed from the text of a constitution, its interpretation and its application. However, constitutional identity is nothing more and nothing less than a constructed reality that can be regarded as a constitutional state's restless soul. It exists only as a constructed, simplified, imagined reality that will most likely also be contested and subject to change. Constitutional identity and the reliance on it in particular by national courts should therefore not be regarded as something sacred and absolute that can be compared to an imagined stable heart. Instead, constitutional identity should be treated with caution.
Game of Values: The Threat of Exclusive Constitutional Identity, the EU and Hungary
Authors: Körtvélyesi Zsolt , Majtényi Balázs
Published: March 2019

There is an increasing, or increasingly visible, societal trend in the EU and beyond—often followed by constitutional changes—that challenges inclusive constitutional values. The discourses underlying these changes emphasize the inviolability of national identity and redefine it with a strong reliance on exclusive constitutional values. This Article asserts that exclusive constitutional values—that are defined as values that question the moral equality of some members of the community—necessarily shrink the room for inclusive values, and a critical mass of exclusive values can lead to a hallowing out of a democratic order, both on the national and on the supranational level. The Article presents Hungary as a case where the populist-exclusivist elements of political rhetoric—that are also present elsewhere—became part of constitutional law and have transformed the political system. The case study shows how the redefinition of Member States' constitutional identities, along recent societal trends and exclusive constitutional values, could clash with the inclusive values of the European Union and relegate European institutions to the position of “the Other,” thereby endangering constitutional democracy. In particular, the Article shows how the rule praising and recognizing diverse Member State constitutional identities can work to embolden the already strong trend to challenge inclusive constitutional values.
The UN's Search for a Global Compact on Safe, Orderly and Regular Migration
Authors: Guild Elspeth
Published: March 2019

In 2016, the UN's General Assembly called for the negotiation of a Global Compact on Safe, Orderly, and Regulation Migration to be adopted in 2018. The consultations began at the start of 2017 and the negotiations began six months later. Yet, it is uncertain what a Global Compact on Migration should include and what it should look like. What should be the key objectives of a Global Compact for Safe, Orderly and Regular Migration? In this Article I examine the issue which the UN seeks to address through an analysis of the three problems: Unsafe migration, disorderly migration, and irregular migration.
Ernst-Wolfgang Böckenförde on Constitutional Judging in a Democracy
Authors: Collings Justin
Published: March 2019

This Article explores Ernst-Wolfgang Böckenförde's views about constitutional judging in a democracy. It offers three ideal types of constitutional judging, each drawn from the extra-judicial writings of prominent constitutional judges who represent it. The three types are: (1)the prophet, who views the constitution as visionary and value-laden, and who entertains an expansive view of the judge's role in giving voice and validity to that vision and those values; (2)the essayist, who shares the prophet's sense of the vast scope and myriad resources of constitutional judging, but who, lacking the prophet's confidence in getting such bewilderingly difficult questions right, approaches constitutional judging cautiously, skeptically, and deferentially; and (3)the executor, who views constitutional judging as the effort to discern the constitution's concrete, limited content, and to enforce that content unflinchingly. Böckenförde, the Article argues, was an executor—one who shared many interpretive commitments with the two most prominent executors in the American constitutional tradition: Hugo Black and, especially, the late Antonin Scalia.
Counter-Extremism, Fundamental Values and the Betrayal of Liberal Democratic Constitutionalism
Authors: Rivers Julian
Published: March 2019

Over the course of the last three years, British Government counter-terrorism policy has shifted significantly to embrace “counter-extremism.” This is justified not only in terms of addressing the underlying causes of terrorism, but also in its own right as addressing the “harm” of extremism. These proposals raise fundamental questions about the limits of religious and other civil liberties. However, the problem of extremism is not new. The German public intellectual and constitutional lawyer Ernst-Wolfgang Böckenförde reflected extensively on the same problem in the context of German responses to left-wing radicalism in the mid-1970s. His work touched on both concrete legal problems as well as fundamental philosophical assumptions about the nature, characteristics, and limits of the liberal democratic constitutional state. In this article, I seek to retrieve his ideas and arguments for the current British context. I argue that the current discourse of extremism and fundamental British values risks being used as a vehicle for promoting a “progressive” public ideology of individual self-creation. This fails to take moral and religious diversity seriously, and its implementation betrays the foundations of the liberal democratic constitution. It provides striking confirmation of Böckenförde's thesis that the liberal state is perennially prone to a totalitarian tendency to seek to generate its own distinctive ethical community. As Böckenförde recognized, what is needed instead is the recovery of a thin common morality of civic loyalty as shown pre-eminently in obedience to law.
Regulating the New Self-Employed in the Uber Economy: What Role for EU Competition Law?
Authors: Daskalova Victoria
Published: March 2019

This paper discusses the role that EU competition law can play in regulating the “new self-employed”—precarious workers formally considered to be micro-enterprises. Specific attention is paid to the newest type of “new self-employed,” namely those engaged via matchmaking platforms arranging for work to be contracted on demand. Despite their unequal bargaining position, self-employed individuals are barred from collective bargaining due to the EU competition rules. This Article argues that the problem will not be solved by modifying the respective tests for “worker” and “undertaking” in EU law, or by introducing exceptions under Article 101 TFEU. This Article then adopts a regulatory approach to canvass the different legal instruments available to address exploitation concerns in the context of the Uber economy, and discusses the role that EU competition law can play in such a regime.
Distribution as the Organizing Principle of Environmental Regulation
Authors: Roy Suryapratim
Published: March 2019

This Article argues that distributional concerns constitute the heart of environmental regulation; they are not restricted to pre-policy values or post-policy effects that need to dealt with. On the contrary, they characterize the selection of environmental policies, and their properties. Different interests, preferences, and values with respect to a policy instrument can be made commensurable using the language of distribution. The centrality of distribution as an organizing principle may be elusive on account of it being too vaguely construed or too narrowly defined. This necessitates the articulation of a typology of distributional concerns. To this end, it is suggested that the distribution of benefits and burdens, distribution of responsibility, distribution of membership and distribution of capabilities could be useful categories to develop and assess environmental regulation. This framework is then applied to an unsuspecting candidate, the European Union Emissions Trading Scheme (EU ETS).
Blockchains: Regulating the Unknown
Authors: Finck Michèle
Published: March 2019

This Article, which takes into account developments up until summer 2017, evaluates the early days of regulatory engagement with blockchain technology. My analysis unfolds in three parts. First, I provide a cursory overview of the technology itself to highlight considerable uncertainties concerning its future. Regulators asked to engage with distributed ledgers are thus compelled to regulate the unknown. Second, I will introduce a typology of regulatory strategies adopted to date and highlight their respective advantages and shortcomings. Third, I will outline a number of guiding principles regulators should follow in respect of blockchain technology. I will make the argument that despite the technology's uncertain future, early regulatory engagement is warranted as a young technology is a malleable technology. As technology develops, law has to adapt. As a consequence, I put forward a number of regulatory techniques, including a process of polycentric co-regulation that relies on the regulatory potential of (blockchain) software and the adoption of a so-called “28thregime” at the EU level which may help navigate the uncertainties of blockchain development and regulation.
Judges and Courts Destabilizing Constitutionalism: The Brazilian Judiciary Branch's Political and Authoritarian Character
Authors: Meyer Emilio Peluso Neder
Published: March 2019

Contemporary democracies may confront several instances of exceptions that co-exist with constitutional institutions; they are never free from any risks. This Article relies on recent Brazilian judicial experiences in order to present and highlight how courts and judges, from within the institutional structure, can act as elite actors that endanger the constitutional system, giving it the characteristics of unstable constitutionalism. By presenting the recent political and juridical facts that drove Brazil to constitutional crisis, the work brings not only judicial rulings but also the institutional and corporative structure that served as the main methods of avoiding the judicial reforms that could have led to a true transition from dictatorship to democracy. The conclusion is that the Brazilian courts blocked effective transitional constitutionalism in Brazil, making room for the current unstable constitutionalism.
Selecting Judges in Poland and Germany: Challenges to the Rule of law in Europe and Propositions for a new Approach to Judicial Legitimacy
Authors: Sanders Anne , von Danwitz Luc
Published: March 2019

The recent reforms of the Polish Judiciary have sparked a lively debate in Europe on the importance of judicial independence. This Article deals with the new Polish system of selecting and appointing judges and critically assesses it in the light of European standards for judicial appointments. It then compares the new Polish system to the German system of selecting judges, which has been advanced as a point of reference for the reform by the Polish government. Finally, the Article reconsiders and challenges some of the established concepts of German constitutional law as to the selection of judges and judicial legitimacy.

The Article was closed on September 2, 2017 and accepted for publication. Subsequent developments could be included until March 15, 2018. The authors would like to thank Judge Thomas Guddat and theDeutsch-Polnische Richtervereinigung(Association of German and Polish Judges) for providing valuable details on the reforms in Poland.
Article 50 and Member State Sovereignty
Authors: Dixon Dennis
Published: March 2019

Article 50 of the Treaty on European Union was originally viewed by national constitutional courts as an important provision for upholding state sovereignty. The German Constitutional Court emphasized the provision in its reconciliation of the Lisbon Treaty with state sovereignty. The Czech and Latvian Constitutional Courts saw Article 50 as creating a balanced process for the exercise of the sovereign right to withdraw from the European Union. Prior to the Brexit referendum, there was little doubt in the literature that an Article 50 agreement could address the entirety of the future relationship between a withdrawing member state and the European Union. Since the Brexit referendum, the European Union has taken an increasingly narrow view of Article 50. This, combined with interpretations of other Treaty provisions, have both created significant disadvantages to the withdrawing member state. If—above and beyond natural imbalances in bargaining power—EU Law creates a position of inequality between the withdrawing member state and the EU in negotiations, then the pooled-sovereignty model of the European Union is called into doubt. Article 50 cannot simultaneously be viewed as upholding state sovereignty, whilst being exit-hostile to any state that uses the provision.
Is It Time to Reform the Counter-terrorist Financing Reporting Obligations? On the EU and the UK System
Authors: Ryder Nicholas
Published: March 2019

This Article critically considers the effectiveness of the European Union's (EU) counter-terrorist financing (CTF) strategies. In particular, it concentrates on the use of financial intelligence gathered from the submission of suspicious activity reports (SARs) by reporting entities to Member States Financial Intelligence Units (FIU). The Article identifies a series of weaknesses in the United Kingdom's (UK) reporting regime: Defensive reporting, increased compliance costs, and the definition of suspicion. It concludes by making a series of recommendations that are aimed at improving the effectiveness of the EU and UK CTF reporting obligations.
“Breaking through the Foul and Ugly Mists of Vapours”— Regulation of Alternative Tobacco and Related Products by the New TPD and Exercise of EU Competence
Authors: Abaquesne de Parfourus Anatole
Published: March 2019

Directive 2014/40—the new Tobacco Products Directive—was unsuccessfully challenged in three cases,Philip Morris,Poland v. European Parliament and Council, andPillbox 38. This Article examines provisions of the Directive relating to some alternative tobacco and related products, both in terms of exercise of EU competence and substantive regulation of these products. The main flavored tobacco products can no longer be placed on the market. Electronic cigarettes are regulated by the Directive, as the initial provisions of the Commission proposal were substantially amended. The new Tobacco Products Directive reproduced the prohibition of tobacco for oral use, already at issue in theSwedish MatchandArnold Andrécases, and again subject of another preliminary ruling reference by Swedish Match, the Advocate General's Opinion having concluded in its validity. The Directive also provides the possibility for Member States to prohibit categories of tobacco or related products. Parallel to its analysis of their substance in terms of health regulation, this Article considers European Union competence issues relating to these provisions and examines the adequacy of the Article 114 TFEU internal market legal basis as well as compliance with the principles of proportionality and subsidiarity.
Euthanasia and the Ethics of Free Movement Law: The Principle of Recognition in the Internal Market
Authors: van Leeuwen Barend
Published: March 2019

The free movement provisions enable EU citizens to follow their own ethical preferences by going to a Member State that has made a different ethical choice from their home Member State. However, UK citizens who have assisted suicide or euthanasia abroad could be criminally prosecuted on their return to England. This possibility of a criminal prosecution constitutes a restriction on free movement. Nevertheless, the free movement provisions have so far not been used to challenge the English prohibition of euthanasia. The aim of this article is to show that, based on its ultimate aim, free movement law does have a legitimate role to play in ethical issues. The internal market is based on a principle of recognition, which forces Member States to engage with regulatory choices made by other Member States. This also applies to ethical issues. Member States are not required to justify the existence of different ethical choices. However, if they decide to restrict free movement, they have to be able to show that these differences in fact exist. This approach achieves a balance between the right of citizens to make their own ethical choices, and the ability of Member States to protect their legislation on ethical issues.
Judicial Self-Government in Italy: Merits, Limits and the Reality of an Export Model
Authors: Benvenuti Simone , Paris Davide
Published: March 2019

The Italian model of judicial self-government is often presented as a successful example of institutional reform to be copied in young democracies. This paper provides a deeper and multifaceted image of it and takes stock of its performance in securing the independence and the accountability of the judiciary. It first maps the rationale and the actors of judicial self-government in Italy, stressing, in particular, that the Italian model of judicial self-government not only aims at preventing the influence of the judiciary by external powers, but it is also equally concerned by threats to judicial independence coming from within the judiciary. It then provides a longitudinal analysis of the impact of this model of judicial self-government on the values of the independence and the accountability of the judiciary after the establishment of the High Council of the Judiciary in 1958. While acknowledging the crucial role of this body in securing the independence of the judiciary, this article claims that the values of independence and accountability of the judiciary have been achieved only progressively and partially.
Romania: Perils of a “Perfect Euro-Model” of Judicial Council
Authors: Selejan-Gut̗an Bianca
Published: March 2019

The last three decades have brought important changes to the Romanian judicial system, especially concerning the struggle for independence and autonomy within the separation of powers equation. The internal and external context – i.e. the transition to democracy, after 1989, and the intention to join the European Union – determined an orientation towards the “Euro-Model” of judicial self-government. This has not come without difficulties and perils, both from the inside and from the outside. The article provides a comprehensive analysis of the Romanian system of judicial self-government in the context of these perils and emphasizes the link between the attempts to reinforce judicial independence and the anti-corruption fight, required by the supervision mechanism under which Romania has been placed at the moment of the EU accession. The increase in the number and intensity of such perils in the recent period has coincided with an increase in the number of high-level political corruption cases that have resulted in convictions. The article also discusses recent changes in the laws of the judiciary, which still are, partially, under parliamentary scrutiny, but which have raised serious concerns at the European level, as regards the progress made by Romania in achieving the objectives included in the Cooperation and Verification Mechanism.
Capturing the Judiciary from Inside: The Story of Judicial Self-Governance in Slovakia
Authors: Spáč Samuel , Šipulová Katarína , Urbániková Marína
Published: March 2019

The article discusses the development in the administration of the Slovak judiciary since the separation of Czechoslovakia and the impact of the empowerment of the judicial self-governance on the functioning of the judicial system. After independence, the administration of the judiciary initially rested in the hands of the executive. In 2002, Slovakia created its Judicial Council and transferred a considerable amount of powers on it, especially related to judicial careers. It was expected that this would de-politicize the judicial system. However, a high level of autonomy of the judiciary chiefly led to the empowerment of judicial elites. This reduced the democratic accountability of the judiciary, encapsulating it from society and enabling it to promote its own interests. Selection processes have often been used to fill judicial ranks with judges with close ties to the system. Accountability mechanisms such as promotions, disciplinary procedures or remuneration schemes were used to reward allies of those on the top of the hierarchy and to punish their critics. Still, adherence to EU-backed standards on the administration of the judiciary may have increased the legitimacy of the judiciary, while concentrating decision-making in one body enhanced transparency, which was furthered due to low public confidence resulting in unprecedented levels of information available about the Slovak judicial system. All in all, the Slovak example displays the dangers of establishing judicial self-governance in countries where an internal ethical culture and a strong sense of judicial duty are still lacking.
Never let a Crisis go to Waste: Politics, Personality and Judicial Self-Government in Ireland
Authors: O'Brien Patrick
Published: March 2019

Although Ireland is often cited as part of the vanguard of countries adopting forms of judicial self-governance in the 1990s, this appearance can be misleading: the Irish judiciary are self-governing only in limited respects. The judge-led Court Service is in charge of court estate, non-judicial personnel and provision of information on the court system to the public. Many key matters – discipline, promotions and deployment – remain largely out of the control of the corporate judiciary. Judicial appointments are significantly at the discretion of the government. In the last decade, there have been significant moves towards a more corporate judiciary and these are reflected in the creation of a judges’ representative body, the Association of Judges of Ireland, and a shadow Judges Council. There are currently proposals to create a new independent mechanism for appointing judges and to create a Judicial Council with a significant role in disciplining the judiciary.

The Irish experience highlights the importance of political and cultural factors in establishing and maintaining judicial independence and self-governance. Despite the significant role for the government in judicial appointments, and the presence of a culture of political patronage in these appointments, there is nonetheless a robust culture ofindividualjudicial independence once judges have been appointed. The creation of the Courts Service in 1999 was a significant transfer of administrative power to the judiciary but it was approved without demur by the political branches, who welcomed the depoliticization of controversial decisions about court estate. Conversely, reforms to judicial appointments have been weak because politicians saw value in maintaining a relatively harmless form of political patronage, and proposals for a Judicial Council that have agreed in outline for two decades have yet to be enacted, apparently because they lack sufficient political salience. The defence of judicial independence, and the creation of robust institutional mechanisms for defending it, ultimately requires the goodwill of politicians.
German Judicial Self-Government — Institutions and Constraints
Authors: Wittreck Fabian
Published: March 2019

Typically, Germany is portrayed as apersistent objectorto Judicial Self-Government in any form. The present paper will demonstrate that this position is untenable: Actually, the German judiciary disposes of a differentiated system of institutions of self-government. The effects of these institutional settings on core values like independence and accountability proves to be mixed at best, however. Furthermore, there are practically no proponents of a stronger version of self-government to be reckoned with. Indeed, the Italian-style model of self-government or the visions of the CCJE are basically contrary to the prevailing German understanding of democratic legitimacy and separation of powers; moreover, the long lasting recruiting pattern of the German judiciary will act as a powerful obstacle. Ultimately, even the introduction of a strong self-government via constitutional amendment remains an open question.
Court Presidents: The Missing Piece in the Puzzle of Judicial Governance
Authors: Blisa Adam , Kosař David
Published: March 2019

The aim of this paper is to provide a new comprehensive understanding of roles of court presidents in judicial governance in Europe. It argues that in order to better understand the role of court presidents in comparative perspective it is necessary to unpack their power into smaller components that can be analyzed separately. We define seven such components: judicial career, jurisprudential, administrative, financial, ambassadorial, and media power, and ancillary powers as a residual category. Subsequently, we zero in on 13 European jurisdictions and rate them according to the strength of their court presidents' powers. By doing so we are developing a Court President Power Index. Based on this Index we question the claim that Western court presidents are always weaker than their Eastern European counterparts and argue that powers of court presidents diverge both within Western Europe and within Eastern Europe, and hence it is difficult to draw the easy line along the West/East axis on this ground. Finally, we problematize our Court President Power Index and show that powers in the meaning of faculty do not necessarily translate into influence since various contingent circumstances (such as the length of court presidents' terms of office, information asymmetry, the structure of the judiciary, the existence of competing judicial self-governance bodies, the role of individuals, the proximity of court presidents to political leaders, the legal profession, legal culture, and the political environment) affect to what extent court presidents may exploit their powers in practice.
Spoilers Go Bump in the Night
Authors: Johnson Benjamin K. , Udvardi Angel , Eden Allison , Rosenbaum Judith E.
Published: March 2019

Abstract. Spoilers are frequently a source of concern for entertainment audiences. Online discussions, promotional materials, and reviews can all potentially reveal pertinent information about story plotlines, presumably ruining suspense and enjoyment. Despite these common apprehensions, recent experimental evidence suggests that narrative spoilers have modest and inconsistent effects on enjoyment and other audience responses. In this study, we investigate the implications of spoilers for horror films, a genre reliant on suspenseful thrills. Each participant was exposed to multiple scenes from a single horror film, and spoilers were manipulated at different stages of the narrative for both minor and major plot points. Results indicate no main effects of spoilers for enjoyment, transportation, suspense, processing fluency, or reactance. However, need for affect moderated positive enjoyment effects of spoilers for smaller plot points such as scary moments or sudden twists. These results indicate that those who value the thrills of horror films may receive enjoyment from the anticipation produced by minor spoilers about smaller plot points.
Associations Between Different Aspects of Video Game Play Behavior	and Adolescent Adjustment
Authors: Verheijen Geert P. , Burk William J. , Stoltz Sabine E. M. J. , van den Berg Yvonne H. M. , Cillessen Antonius H. N.
Published: March 2019

Abstract. Playing video games during adolescence has been linked to both positive and negative outcomes, but it remains unclear which specific aspects of gaming behavior are associated with adjustment. The current study examines the association between distinct aspects of video game play behavior and adolescent adjustment. We focused on five aspects, namely, gaming frequency, the social context, gamer identification, type of game, and motivation for playing. Participants included 705 Dutch adolescents (33.5% female, Mage = 14.07), who completed a survey including self-report and sociometric measures. Results indicated that the frequency of playing games was not associated with adolescent adjustment. However, significant associations did appear for social context, genre of games, and motivation for playing. In addition, the different aspects of gaming showed both beneficial and deleterious relations with adjustment. This research indicates the importance of disaggregating gaming behavior and the necessity to look beyond frequency of play in order to fully understand the impact of gaming on youth.
Dependence of Thermodynamic Processes on Upstream Interplanetary Magnetic Field Conditions for Magnetosheath Ions
Authors: Park Jong‐Sun , Shue Jih‐Hong , Nariyuki Yasuhiro , Kartalev Monio
Published: March 2019

Using Time History of Events and Macroscale Interactions during Substorms (THEMIS) observations over a 10‐year period from 2008 to 2017, we statistically investigate the thermodynamic properties for magnetosheath ions and their dependence on upstream interplanetary magnetic field (IMF) conditions. The thermodynamic properties for magnetosheath ions are estimated by using the polytropic index averaged over the subinterval that belongs to the same streamline (
). The THEMIS observations show that the probability distribution of
for magnetosheath ions has a major peak at
~1 (quasi‐isothermal conditions) with a longer left tail down to
~0 (quasi‐isobaric conditions). The spatial distributions of
for two different types according to IMF spiral angle (i.e., Parker spiral and ortho‐Parker spiral IMF orientations) reveal that the ions in the downstream of a quasi‐perpendicular shock (quasi‐perpendicular magnetosheath) exhibit quasi‐isothermal processes, while those in the downstream of a quasi‐parallel shock (quasi‐parallel magnetosheath) show
lower than unity (down to
~0.8) implying the anticorrelation between the ion temperature and the ion number density variations. Moreover,
in the quasi‐parallel magnetosheath tends to decrease with increasing magnetic local time distance from the magnetic local noon. These results indicate that the thermodynamic properties for magnetosheath ions depend on the bow shock geometry (quasi‐perpendicular bow shocks versus quasi‐parallel bow shocks) and are presumably controlled by a variety of instabilities, waves, and turbulence in the magnetosheath.