bluuebunny/crossref_metadata_2025 huggingface dataset:
The Case for the New Commonwealth Model of Constitutionalism
Authors: Gardbaum Stephen
Published: March 2019

The article presents the normative case for the new Commonwealth model as a novel third way of organizing basic institutional arrangements in a democracy and an alternative to the conventional dichotomy of legal or political constitutionalism. In so doing, it engages with the latest contributions to the debate about the merits of judicial review, and argues that the new model radically and compellingly permits a form of “proportional representation” among the best arguments for and against the practice rather than the “warts-and-all” of the traditional either/or approach. In this way, the new model is to forms of constitutionalism what the mixed economy is to forms of economic organization: a distinct and appealing third way in between two purer but flawed extremes. Just as the mixed economy is a hybrid economic form combining the core benefits of capitalism and socialism while minimizing their well-known costs, so too the new model offers an alternative to the old choice of judicial supremacy or traditional parliamentary sovereignty by combining the strengths of each while avoiding their major weaknesses. Like the mixed economy's countering of the lopsided allocation of power under capitalism to markets and under socialism to planning, the new model counters legal and political constitutionalism's lopsided allocations of power to courts and legislatures respectively.
Rebels Without a Cause? A Critical Analysis of the German Constitutional Court's OMT Reference
Authors: Mayer Franz C.
Published: March 2019

One of the most famous scenes from the 1957 James Dean movie classic “Rebel Without a Cause”is the chicken run scene. Two cars are speeding towards an abyss; the one who slows down or jumps out of the car first loses. The chicken run in the movie ends in tragedy; when one of the protagonists finally tries to get out of his car, it is too late—he is caught in the car and dies.
Law Meets Economics in the German Federal Constitutional Court: Outright Monetary Transactions on Trial
Authors: Gerner-Beuerle Carsten , Küçük Esin , Schuster Edmund
Published: March 2019

The Eurozone banking and sovereign debt crisis has brought the fragility of the European monetary union into sharp focus and exposed the lack of effective instruments at the European level to maintain financial stability. As a response to the crisis, the Member States and the institutions of the Union adopted in short succession several financial assistance measures that have given rise to much political and legal controversy. The European Central Bank (ECB) played an active role in the institutions' efforts to contain the crisis and prevent the disintegration of the Eurozone by deploying a number of so-called non-standard or unconventional monetary policy measures, namely its Securities Markets Programme, Long-Term Refinancing Operations, and in September 2012 the Outright Monetary Transactions Programme (OMT Programme). The OMT Decision envisages unlimited purchases by the ECB of specific types of sovereign bonds issued by Member States participating in an EFSF/ESM macroeconomic adjustment or precautionary program in the secondary market. Without the program having been activated, i.e. without the ECB actually implementing the decision and without any purchases of government bonds, yields on bonds of the affected Eurozone countries decreased markedly after the announcement of the OMT Decision. The OMT Programme has accordingly been credited with having been instrumental in restoring financial stability and preventing a breakup of the Euro area and with being one of the most effective announcements any central bank has ever made.
Karlsruhe Not Only Barks, But Finally Bites—Some Remarks on the OMT Decision of the German Constitutional Court
Authors: Petersen Niels
Published: March 2019

On 6 September 2012, the European Central Bank (ECB) published a press release on “Technical features of Outright Monetary Transactions.” In this press release, the ECB announced that it would purchase bonds of Member States participating in the European Financial Stability Facility (EFSF)/European Stability Mechanism (ESM) program on the secondary sovereign bond markets under certain conditions. Furthermore, it gave notice that there were no ex ante quantitative limits on the size of these outright monetary transactions (OMT). This OMT announcement of the ECB was challenged before the German Constitutional Court. In a 6:2 decision, the Court raised doubts with regards to the compatibility of the actions announced in the OMT press release with the rules governing the mandate of the ECB in the Treaty for the Functioning of the European Union (TFEU), and referred the case to the European Court of Justice (ECJ) for a preliminary ruling.
Reforming German Corporate Governance: Inside a Law Making Process of a Very New Nature Interview with Professor Dr. Theodor Baums
Authors: Baums Theodor
Published: March 2019

Just over a year ago, in the Spring of 2000, a Government Commission entitled \“Corporate Governance - Unternehmensführung (corporate management) - Unternehmenskontrolle (corporate control) - Modernisierung des Aktienrechts (Modernization of corporate law) and consisting of a group of selected lawyers and business practioners from the banking and insurance industry, took up the task of engaging in an in-depth analysis of the structure and challenges of \“German corporate governance.\” The Commission\'s work has drawn to an end and its 300 page report was presented to the public on July 10, 2001. It is German Law Journal\'s privilege to provide its readers with the first-hand insights of the Chair of the Commission, Professor Theodor Baums of the University of Frankfurt\'s Institute of Banking Law. In his discussion with GLJ, Professor Baums addressed specifics of the Commission\'s Report as well as the heritage of and the future prospects for German corporate and capital market law.
First European Jurists Forum Held in Nuremberg
Authors: Raible Karen , Hoss Cristina
Published: March 2019

In the middle of the 19th century Jurists Forums were founded in several European countries, including Germany, Switzerland, the Scandinavian countries, the Netherlands, Italy and Hungary. The aim of the institution was to assemble practitioners and academics, in order to discuss contemporary legal problems with the goal of influencing jurisprudence and legislation. The activities of the Deutscher Juristentag (German Jurists' Forum) were interrupted after Hitler came to power, primarily because the German Jurists' Forum refused to exclude its Jewish members. The organization was resurrected after the Second World War, and has taken a leading role in influencing the jurisprudence of the Bundesgerichtshof (BGH — German Federal Court of Justice), for example in the area of product liability and family law.
The “Karlsruhe Republic – Keynote Address at the State Ceremony Celebrating the 50th Anniversary of the Federal Constitutional Court
Authors: Casper H. C. Gerhard
Published: March 2019

Fritz Stern, who was awarded the Peace Prize of the German Booksellers Association in 1999, commenced his speech on that occasion by asking: “Why do German democracies have to be identified, limited as it were, by associating them with the names of cities: Weimar, Bonn, Berlin. All this does is to emphasize unwelcome discontinuity.” (1)
Consequences of Premature Self-Cure: The Lawless Buyer? – A Critical Review of Bundesgerichtshof's Decision of 23 February 2005
Authors: Caspary Tobias
Published: March 2019

More than three and a half years ago, the German law of obligations, codified in the second of the five books of the German Civil Code (Bürgerliches Gesetzbuch, BGB), underwent its greatest reform since the BGB was enacted on 1 January 1900. The Act to Modernize the Law of Obligations, the Schuldrechtsmodernisierungsgesetz, which came into force on 1 January 2002, dramatically altered the law of obligations. Whereas legal practitioners had almost no time to adapt to the new provisions, at least the German courts were granted a grace period. Nevertheless, by now the first cases involving the modernized law have reached the benches of the Bundesgerichtshof (BGH – Federal Court of Justice).

This article deals with “one of the currently most controversially discussed questions” of the law of obligations: Whether a buyer, who cures a product's defect can claim reimbursement for the associated expenses (Aufwendungen) from the seller, without giving the seller an additional period of time for supplementary performance (Nacherfüllung). This manner of bringing the product into conformity with the contract can be described as a premature self-cure (verfrühte Selbstvornahme).
Was the War on Iraq Illegal? – The German Federal Administrative Court's Judgement of 21st June 2005
Authors: Schultz Nikolaus
Published: March 2019

The US/UK-led war against Iraq, and Germany's contribution to this war, met withgravierenden völkerrechtlichen Bedenken(grave concerns in terms of international law), as evidenced by the extensive judgement of theBundesverwaltungsgericht(BVerwG – German Federal Administrative Court) from 21 June 2005. This is a landmark decision in at least two respects. First, it appears that the BVerwG's opinion is the first on the legality of the war on Iraq by a court of law. Second, the Court took a broad view regarding the question of law with which it had been presented: under what circumstances may an army officer lawfully refuse to follow the order of a superior on the grounds of his constitutional right to freedom of conscience?
German Constitutional Law and Doctrine on State of Emergency – Paradigms and Dilemmas of a Traditional (Continental) Discourse
Authors: Jakab András
Published: March 2019

A foreign jurist, on looking into the German literature on constitutional law, will soon and suddenly be struck by a peculiarity of this scholarship: the unusually strong emphasis on a marginal area of constitutional law, namely, the state of emergency. The inquiry is, of course, well-known in other countries, but the passion for, and the theoretical effort expended on, this marginal area is unique to Germany.

However, this disinterest on the part of other constitutional lawyers, and the recent decline in interest on Germany's part, could yet change, turning the marginal area into a highly current issue. Combating terrorism raises questions for which the German patterns of argumentation, fine-tuned in the academic debate on the law of state of emergency, may provide a useful framework for discussion. The questions arising in the context of the struggle against terrorism test the limits of positive regulations in extreme situations, leading ultimately to the same underlying dilemma as the law on state of emergency, though with different terminology. In this sense, the constellation of legal issues involved in combating terrorism could be considered as the law on state of emergency “incognito.” However, the various argumentative patterns for law on state of emergency have not yet been directly transferred into the very timely legal discourse on counterterrorism (and no such attempt is made here), but such a transfer of argumentation suggests itself. As such, the topic has a “potential currency,” even if traditional issues of state of emergency themselves no longer count among the most current issues.
Corporate Governance Reform, Regulatory Politics, and the Foundations of Finance Capitalism in the United States and Germany
Authors: Cioffi John W.
Published: March 2019

Since 1990, both the U.S. and Germany have substantially reformed their corporate governance regimes as part of an emerging paradigm of international finance capitalism increasingly dependent on securities markets and private shareholding. Corporate governance reform and the emergence of finance capitalism, however, present a double paradox. First, the development of financial markets and the increasing importance of market relations, often linked to thediminutionof state power, have been accompanied by a substantial and ongoingexpansionof law and regulatory capacity into the private sphere to boost shareholder protections. Second, center-leftparties in both countries took advantage of economic crises to press for pro-shareholder reforms against center-right opposition allied with managerial elites. This article explains these developments by analyzing reform processes in United States and Germany over the past decade. It argues that changing economic conditions empowered reformist state actors, and that they have played a central and largely autonomous role in driving the substantial institutional change underway in contemporary capitalism. The analysis also suggests that political conflict over corporate governance is likely to intensify, on the right and the left, as it impinges on the basic allocation of power within corporations and thus the political economy.
Embryonic Stem Cell Research according to German and European Law
Authors: Starck Christian
Published: March 2019

For some years now, reproductive medicine has been capable of performing the act of human procreationin vitro, fusing the female ovum and the male semen outside of the human body. The embryo created by this process is then “implanted” into the uterus of the woman who had previously provided the ovum. This technique serves to overcome certain physical defects - such as a malfunction of the fallopian tubes - of a couple that wants to have children.
State Liability for Violations of International Humanitarian Law - TheDistomoCase Before the German Federal Constitutional Court
Authors: Rau Markus
Published: March 2019

For quite some time the question of how to cope with violations of international humanitarian law was primarily one of individual criminal responsibility. However, over the last few years, the position of the victims of armed conflict has increasingly come into focus. In particular, attention has been given to the issue of reparations, including compensation, for breaches of international humanitarian law.
Online Dispute Resolution: Consumer Redress in a Global Market Place
Authors: Calliess Gralf-Peter
Published: March 2019

Online dispute resolution (“ODR”) can be conceived as a means to achieve some of the most powerful legal ideals of the Western legal tradition. Among these are:

(1) Legal Certainty: In making individual plans, decisions, and choices everyone is entitled to know what the law is in advance. Therefore, laws shall be public, written in everyday language, and shall not be changed too often. The application of laws shall be a simple operation (legal syllogism) so that citizens do not need attorneys, and judges are just la bouche de la loi (Montesquieu).
Naturalizations Obtained by Fraud – Can They be Revoked? The German Federal Constitutional Court's Judgment of 24 May 2006
Authors: Magen Stefan
Published: March 2019

Like many of the provisions of the GermanGrundgesetz(Basic Law – GG) the constitutional protection of German citizenship enshrined in Article 16.1 GG is a reaction to the atrocities committed by Nazi-Germany. From early on, the Nazis had abused nationality law not only as a sanctioning device to discipline Germans living abroad but also to ostracize unwanted citizens and confiscate their property, i.e., as a means of large scale political and racial discrimination. This inhuman denaturalization practice culminated in the11. Verordnung zum Reichsbürgergesetz(11thordinance of 25 November 1941, issued by virtue of the Reich's Citizenship Law), which stripped Jewish citizens living abroad of their German nationality, aiminginter aliaat Jews deported to concentration camps in Eastern Europe. To prevent any kind of political abuse of denaturalization measures in the future, Article 16.1 sent. 1 GG guarantees that no German may be deprived of his nationality. There is a long-standing debate about the precise meaning of this strict ban on any “deprivation” of nationality, because at the same time Article 16.1 sent. 2 GG allows for the loss of German nationality against the will of the person affected if this loss has a statutory basis and the person does not become stateless as a result. Thus, it is unclear whether the constitution permits a revocation of German citizenship, and if so under what conditions. Further, this debate broaches the questions of whether there are, in fact, exceptions to the constitutional protection against statelessness, e.g., in cases of fraud.
Reviewing Governmental Acts of the United Nations in Kosovo
Authors: Everly Rebecca
Published: March 2019

The governmental role played by the United Nations in Kosovo since 1999 raises a host of questions for international lawyers. Chief among these is whether governmental acts of the United Nations Interim Administration Mission in Kosovo (UNMIK) should be subject to review within Kosovo for compliance with applicable legal standards. In principle, such review would be helpful in ensuring UNMIK accountability and in sending the message that the governors—as well as the governed—in Kosovo are subject to the rule of law. However, for many, the prospect of actors in Kosovo second-guessing decisions taken by UNMIK is problematic, partly due to a fear that review could be used to derail the UNMIK-led peacebuilding process in the territory.
Self-determination as a Challenge to the Legitimacy of Humanitarian Interventions: The Case of Kosovo
Authors: Cvijic Srdjan
Published: March 2019

The fall of the Berlin Wall and the end of the Cold War were greeted by many as an important step in the unstoppable development of human civilization. Francis Fukuyama even announced, in his celebrated essay of the same name, the “end of history” and the triumph of the liberal democratic model, which, according to him, was soon to become the most dominant, if not the only, form of organized human community.
The Ban of Right-Wing Extremist Symbols According to Section 86a of the German Criminal Code
Authors: Stegbauer Andreas
Published: March 2019

The rise of right-wing extremism in Germany since the beginning of the 1990s corresponds with an increasing number of propaganda offences, escalating from 8337 reported cases in 2004 up to 10881 in 2005. Also, the provision against the use of symbols of unconstitutional organizations, Section 86a Strafgesetzbuch (Criminal Code [StGB]), became increasingly important. The following essay will explain the aims and structure, the constitutional background and the main practical problems of applying this prescription.
Asserting the Right to Life (Article 2, ECHR) in the Context of Industry
Authors: Xenos Dimitris
Published: March 2019

In the liberal tradition, there has always been scepticism about the state's involvement in the activities of industry. Instead, internal measures by way of self-regulation and collective action have been preferred. In recognition of the reality that exclusive reliance on such solutions has not prevented violations of human rights, to which a high constitutional importance is attached, other arrangements have to be provided. In the system of the European Convention of Human Rights (hereinafter the Convention), positive obligations are imposed engaging the state in the active protection of human rights. The need to protect human rights against the hazards of industry has been the main issue in the case of Öneryildiz v. Turkey, in which, for the first time in the jurisprudence of the European Court of Human Rights (hereinafter the Court), a claim under the right to life (Article 2 of the Convention) has successfully been asserted in the context of industry.
Language Rights as a General Principle of Community Law
Authors: Urrutia Iñigo , Lasagabaster Iñaki
Published: March 2019

The territory of the European Union is made up of a rich and wide-ranging universe of languages. The European Union contains a wealth of languages. In its current form there are more than 60 autochthonous languages in the 27 Member States, with widely differing situations and legal statuses. The principal characteristic of the European linguistic diversity is the great heterogeneity of situations and internal legal statuses that the european languages display. Most of the languages of EU are spoken by very few people and few languages are enormously widespread. There are many languages in the EU, which, in spite of having an appreciable number of speakers, do not have official recognition. And there are languages that are co-official or have some sort of official recognition in some areas, but struggle to survive. Multilingualism is one of the defining characteristics of the EU, and it is worth examining how EU law deals with it.
Speech – Legal Issues in the War on Terrorism
Authors: Bellinger John B.
Published: March 2019

During the past year, I have had an intensive and ongoing dialogue with European government officials about U.S. counterterrorism laws and policies, especially those relating to the detention, questioning, and transfer of members of al Qaida and the Taliban. During this same period, the U.S. legal framework governing the detention and treatment of detainees has evolved significantly, through the passage of the Detainee Treatment Act last December, the Supreme Court's decision in the Hamdan case in June, the transfer of 14 al Qaida leaders to Guantanamo in September, the announcement of new DOD detention policies in September, and the enactment of the Military Commissions Act earlier this month. It has been vexing that so many myths and misunderstandings about United States policies have proliferated. My dialogue with EU governments during the past year has helped to clear up some of these myths and to address issues that are troubling to Europeans. Tonight, I want to provide a comprehensive public explanation of our legal views and policy decisions with respect to the detention and treatment of terrorists, as these have evolved in the United States since September 11th.
Questioning EU Constitutionalisms
Authors: Avbelj Matej
Published: March 2019

Since the very conception of the European integration, there has been one core question that has attracted much attention and yet it remains contested and in a way unanswered till present. What is the legal nature of the European integration - a query about what integration stands for (the descriptive dimension), how it is to be explained and construed (the explanatory dimension) and eventually what it should stand for (the normative dimension). With the lapse of time, and as integration has evolved, various legal, political, economical and even broader intellectual streams of mutually shared beliefs, we should call them narratives, have emerged all offering their own and separate visions of what constitutes the most appropriate answer. Among them, however, the constitutional narrative has come out as a sort of master or dominant narrative whose answers have reached and persuaded the widest circle of influential stakeholders with the greatest impact on the social construction of the European integration.
Level Playing Fields: The Post-Colonial State, Democracy, Courts and Citizenship in India
Authors: Mitra Subrata K.
Published: March 2019

This article analyses the legal, political and moral basis of citizenship in the contemporary world. India is analyzed here as a case in point of a general category of ‘changing societies’ emerging from colonial or communist rule. Citizenship, which used to be considered a part of the general problem of nation-building, has increasingly acquired the character of a salient problem in its own right. This change in perspective has come about as a consequence of globalization and the world-wide diffusion of basic norms of human rights. In the contemporary context, with regard to the problems of endangered minorities whose lives, dignity and welfare are at risk – be it in Kashmir or Kosovo – the world at large considers itself morally bound to intervene, if not militarily, then at least in terms of the invocation of law and good conduct. As such, from the point of view of the post-colonial state, both its national sovereignty and legitimacy are contingent on its success with turning its whole population into citizens. This, the article argues, is contingent on the ability of the post-colonial state to gear its laws, courts and administration towards effective management of identity and the constitutional incorporation of core social values (see Figure 2 below). With regard to ‘making citizens out of subjects’, the Indian ‘experiment’ holds important lessons for other states, ensconced in multi-cultural societies.
Law, the State, and Private Ordering: Evolutionary Explanations of Institutional Change
Authors: Calliess Gralf-Peter , Freiling Jörg , Renner Moritz
Published: March 2019

The societal mega-trends of the past four decades, such as a globalizing economy and an aging society, have challenged the understanding of the state in OECD countries. The resulting “transformations of the state” are the subject of an interdisciplinary research agenda established at the Collaborative Research Center (CRC) 597 in Bremen, Germany. A total of twenty projects from political science, law, and economics explore changes of statehood which take place in two different dimensions: first, the internationalization and, second, the privatization of activities and functions which were traditionally performed by and ascribed to the democratic, constitutional and interventionist state. While the first research phase (2003-2006) aimed at founding empirical descriptions of these internationalization and privatization processes, the current phase (2007-2010) is dedicated to explaining the observed changes in statehood. Within this general framework, the authors’ research project on “New Forms of Legal Certainty in Globalized Exchange Processes” deals with changes in the institutional organization of commerce.
Institutional Change in Globalization: Transnational Commercial Law from an Evolutionary Economics Perspective
Authors: Kerber Wolfgang
Published: March 2019

Markets need a complex set of institutions in order to work properly. Within a state, the national legal order with its legal rules, courts, and enforcement agencies have the task of fulfilling this role. Besides safeguarding property rights, the national legal order encompasses (1) the facilitating of market transactions by offering enabling (facilitative) law (as legal standard solutions) and helping private parties to enforce contracts within the domain of freedom of contract, and (2) the regulation of market transactions for solving or mitigating market failures problems and achieving other policy objectives. A comparable consistent legal system is missing on the international level for ensuring the working of global markets and the governance of cross-border transactions. However, the dynamic process of globalization has brought about the development of a number of new institutional solutions for solving these problems. The most prominent issue is the regulation of international markets (“global governance”). This article, however, will focus on the evolution of institutions for the enforcement of contracts for cross-border transactions between firms. Although there have always been institutional solutions for the governance of cross-border contracts (lex mercatoria), in recent years, a number of new governance solutions for the enforcement of cross-border transactions have emerged (“transnational commercial law”). The increasing use of choice of law, private governance instead of private law (provided by states), and private arbitration instead of public courts are the most important characteristics of this development. This also includes hybrids as new combinations between private and public solutions for the governance of cross-border contracts. Therefore, the process of globalization is accompanied and enabled by a complex process of institutional evolution.
Explaining Legal Change from an Evolutionary Economics Perspective
Authors: Eckardt Martina
Published: March 2019

Institutions can have a decisive impact on economic performance. The law is particularly important in shaping the institutional framework for economic activities. Legal rules can be viewed as socio-technological devices used to help individuals solve the coordination problems and conflicts that arise in an environment of scarce resources. In such an environment, the law affects both the allocation as well as the distribution of resources, and is itself influenced and altered by economic evolution. However, our understanding of the determinants and mechanisms of legal change from an economic perspective remains rather weak.
Applied Evolutionary Theory: Explaining Legal Change in Transnational and European Private Law
Authors: Smits Jan M.
Published: March 2019

This contribution aims to apply some insights from evolutionary theory to transnational commercial law and to the harmonisation of private law in the European Union. By doing so, it hopes to provide a fresh perspective to the theoretical underpinning of the development of both transnational commercial law and European private law. For transnational commercial law, it has already been well explained that the transformation of the role of the State led to new forms of governance. If there was previously a State monopoly on providing legal certainty and enforcement mechanisms, today the goods of legal certainty and enforcement are often provided by others rather than the State institutions, in particular in cross-border transactions. In European private law, an organic development – in which the role of the national States is also rather limited – is the most likely way to create a successful unified law. Both developments raise many questions. This contribution only aims at providing a framework to deal with one of these questions: how to explain (or even predict) the evolution of law beyond the State (of which transnational commercial law and European private law are important examples)? If legal development can no longer be explained by positivist or natural law thinking, can evolutionary theory fill the gap?
From “Evolutionary Theory and Law” to a “Legal Evolutionary Theory”
Authors: Zamboni Mauro
Published: March 2019

Evolutionary theories have always been treated by legal scholars as a sort of cousin to the legal theoretical family, both in Europe and the United States. They are nice theories, they tell interesting stories, you sometimes listen to what they have to say and when among friends, you may even quote them. However, in the modern mononuclear family, when it is time to tackle important issues and reach important decisions, or simply to celebrate some success stories, these cousins are often left outside the door, being simply “relatives” and not part of the legal family in the proper sense. A former evolutionary scholar strikingly stated in a manner that can be seen as representative of the general skepticism towards the evolutionary approach of a large segment of the legal family, “Legal scholarship should not be so timid as to depend on others for its theoretical models. We might take our inspiration where we find it, but we should build our theories within our own discipline, constrained only by the data that defines it and the criteria of quality appropriate to it.” The main objective of this article is to take the first step towards making evolutionary theory “our own discipline,” by elevating evolutionary theory from the status of “cousin” to one of “sibling” (or at least “in-laws”) of the legal family. The focus in particular is to understand why, despite the fact that the evolutionary theory approach to law (or “evolutionary theory and law”) has been present quite a while in the legal scholar's discussion, the legal world at large has left it at the front step of the legal house. Based on this analysis, the task is also to evaluate whether it is possible, after certain adjustments, to invite evolutionary theory into the larger family of legal thinking, in particular as part of the legal theories of law-making (as “legal evolutionary theory”).
California's Holocaust Victim Insurance Relief Act and American Preemption Doctrine
Authors: Adler Libby
Published: March 2019

On the same day that the United States Supreme Court handed down its much anticipated decisions on affirmative action in higher education, holding that the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution permits a degree of race-consciousness in public university admissions, it also issued a far less heralded decision with implications for the ability of the states to address historical injustice. In American Insurance Association v. Garamendi (Garamendi), five members of the Court, led by Justice Souter, found that California's Holocaust Victim Insurance Relief Act of 1999 (HVIRA) “interferes with the National Government's conduct of foreign relations” and is therefore preempted.
Substantive Legitimate Expectations in South African and European Administrative Law
Authors: Quinot Geo
Published: March 2019

The doctrine of legitimate expectation was authoritatively accepted as part of South African administrative law in the landmark case of Administrator, Transvaal v Traub in 1989. In that case Chief Justice Corbett extended the scope of application of the rules of natural justice, specifically the audi principle, beyond the traditional “liberty, property and existing rights” formula to cases where something less than an existing right, a legitimate expectation, required a fair procedure to be followed. This acceptance followed the trend in other Commonwealth jurisdictions to extend the application of the rules of natural justice and hence afford greater procedural protection to individuals affected by administrative decisions. Although Chief Justice Corbett expressly stated that the content of the expectation may be substantive or procedural in nature, the protection of that expectation, if found to be legitimate, was exclusively procedural. Since the Traub decision, the doctrine of legitimate expectation has been deeply entrenched in South African administrative law to extend the scope of procedural rights afforded individuals affected by administrative action. It is now an established principle of South African administrative law that a person, who has a legitimate expectation, flowing from an express promise by an administrator or a regular administrative practice, has a right to be heard before administrative action affecting that expectation is taken. The doctrine, has however, by and large, remained one that provides procedural protection in South Africa. In a number of recent decisions by South African courts, ranging from the High Court to the Supreme Court of Appeal and the Constitutional Court, there have been increasing calls for the application of legitimate expectations beyond procedural claims.
Legal Reasoning of the Court of Justice in the Context of the Principle of Equality Between Judicial Activism and Self-restraint
Authors: Pollicino Oreste
Published: March 2019

“Those with a taste for fairy tales seem to have thought that in some Aladdin's cave there is hidden the Community law in its splendour and that on a judge's appointment there descends on him knowledge of the magic words Open Sesame. Bad decisions are given when the judge has muddled the password and the wrong door opens. But we do not believe in fairy tales any more.”
Tax Amnesty 2004/2005 – An Appropriate Revenue Tool?
Authors: Kellner Martin
Published: March 2019

Tax evasion is punishable. However, by tax amnesty the state waives punishment and gives tax dodgers the chance to return to honesty. The “Act To Promote Tax Honesty” offers people who evaded taxes between the years 1993 and 2002 an opportunity to wipe the slate clean by declaring their concealed income up to 2005. This offer applies to income tax, corporate tax, turnover tax, wealth tax, trade tax, inheritance tax, gift tax and tax deductions pursuant to the Einkommensteuergesetz (Income Tax Act). Amnesty participants must pay a reduced tax rate of 25 percent on declared income within ten days after the declaration. For income and corporate tax the assessment basis is reduced to 60 percent. Thereby the new law grants the repentant tax evaders a tax rate of 15 percent rather then usual up to 48 percent on the profits they gained in the past ten years.
Slaughterhouse-Six: Updating the Law of War
Authors: Morgan Ed
Published: March 2019

International law has come unstuck in time. It has gone to sleep stressing a normative future based on state “obligations owed towards all the other members of the international community,” and has awakened in a bygone world in which the state is “susceptible of no limitation not imposed by itself.” The opposing time zones seem now to exist in unison. Thus, for example, the European Court of Human Rights, in examining the impact of the Torture Convention, can split 9:8 on whether national self-interest trumps universal rules of cooperation, or the other way around. Likewise, England's House of Lords can opine in thePinochetcase that, as between a reinvigorated national jurisdiction and the developing concept of universal one, “international law is on the move.”
Preventive Detention of Dangerous Offenders Re-examined: A Comment on two decisions of the German Federal Constitutional Court (BVerfG – 2 BvR 2029/01 of 5 February 2004 and BVerfG – 2 BvR 834/02 – 2 BvR 1588/02 of 10 February 2004) and the Federal Draft Bill on Preventive Detention of 9 March 2004
Authors: Dünkel Frieder , van Zyl Smit Dirk
Published: March 2019

Preventive detention is, together with life imprisonment, the harshest sanction in German criminal law. In the form of a “measure for improvement and security” of indeterminate duration, preventive detention potentially may be enforced until the death of the offender. Such a measure may be imposed together with a term of imprisonment on offenders regarded as dangerous and implemented after the fixed term of imprisonment has been served. The history of this provision goes back to a Nazi law against habitual criminals that was enacted in 1933 and retained after the end of the Second World War. In the context of the debate about the new criminal laws in the 1960s preventive detention was severely criticised. The result was that in 1969 both the formal and material requirements for the imposition of preventive detention were made more restrictive. This led, in turn, to it being imposed far less frequently. While in the 1960s more than 200 people were sentenced to preventive detention annually, by the early 1990s this figure was fewer than 40 a year. There was an equivalent reduction of the number of people in prison on preventive detention on a given day, from around 1500 at the beginning of the 1960s to fewer than 200 in the 1980s, that is, about 0.3 per cent of the total prison population.
Potential for German investors: entering the Ukrainian market
Authors: Nitsevych Arthur
Published: March 2019

Following the break-up of the USSR, the Ukrainian economy went into a lingering depression. In the last few years, however, its potential has been recovering: Ukraine is now one of the most successful of the former Soviet republics in attracting foreign investment. The main issue for a foreign investor is thus not whether to invest, but how best to enter the Ukrainian market.
Two Hundred Years ofMarbury v. Madison: The Struggle for Judicial Review of Constitutional Questions in the United States and Europe
Authors: Hoffmann-Riem Wolfgang
Published: March 2019

This year we celebrate a United States Supreme Court decision that marks the beginning of modern jurisdiction over constitutional questions:Marbury v. Madison. This is all the more remarkable since, when it was decided two hundred years ago in 1803, it was controversial and many still maintain it was wrongly decided. Chief Justice Marshall ruled on a dispute which he had earlier had a hand in causing, since the alleged legal error – the untimely delivery of a commission to Justice of the Peace Marbury – fell within his area of responsibility as Secretary of State. He dismissed the petition because the incorrect legal procedure had been chosen. However, he did not examine this question at the outset but – contrary to the accepted procedural rules of his time – at the end. This left room for a wide-ranging discussion of the right of judicial review, which was not required by law, and was, therefore,obiter dicta. Thomas Jefferson later referred to this discussion as the Chief Justice's “obiter dissertation.” Of course, Adams himself contended that the case turned on the judicial right of review, since this was a component of his argument that the petition should be dismissed.
(Conflict) Principles of European (Consumer) Contract Law – an Update
Authors: Calliess Gralf-Peter
Published: March 2019

In April 2003 I commented on the European Commission's Action Plan on a More Coherent European Contract Law [COM(2003) 68 final] and the Green Paper on the Modernisation of the 1980 Rome Convention [COM(2002) 654 final]. While the main argument of that paper, i.e. the common neglect of the inherent interrelation between both the further harmonisation of substantive contract law by directives or through an optional European Civil Code on the one hand and the modernisation of conflict rules for consumer contracts in Art. 5 Rome Convention on the other hand, remain pressing issues, and as the German Law Journal continues its efforts in offering timely and critical analysis on consumer law issues, there is a variety of recent developments worth noting.
Money Laundering by Defence Counsel – The Decision of the Federal Constitutional Court
Authors: Bussenius Anne
Published: March 2019

Ever since the incorporation of § 261, the offence of money laundering, into the Strafgesetzbuch (StGB – German Penal Code), the application of this statute to defence counsel has been discussed controversially. The debate stems from the extensive range of the statute, which calls not only for punishment of people who, for example, committed clandestine acts in order to conceal the criminal origin of a “dirty” object, but also from section 2, which addresses those who simply procured objects deriving from any prior crime enumerated in the money laundering offence. For defence counsel the risk of making themselves liable for prosecution is extraordinarily high. Since it is the nature of their profession that they deal with the accused and receive payment for their work, they are more likely to come in contact with and receive “dirty” money than most other people. The threat is intensified by § 261 sec. 5 StGB, a special rule on the mens rea requirement. According to this section, the money laundering offence does not necessarily require the person to know about or act with contingent intent as to the incriminated origin of the object. Instead, it is sufficient if he or she does not realise the origin, even though it was obvious, and thus acts grossly negligently concerning the incrimination of the object. Therefore, § 261 Abs. 5 StGB poses a serious threat to defence counsels since they obtain facts about their clients in order to fascilitate defence, which then may lead to the allegation that they should have realised the criminal origins of the money they received as a fee.
Management Buy-Out, Cash Pooling, Up-Stream Loans and Guarantees in German Group Companies: Old Concepts – New Developments
Authors: Herbst Jochen
Published: March 2019

For more than a century, the cardinal provision ensuring the preservation of the capital reserve in the registered share capital amount in a Gesellschaft mit beschränkter Haftung (GmbH – German company with limited liability) has continued unaltered. This is the payout prohibition contained in § 30 (1) Gesetz betreffend die Gesellschaften mit beschränkter Haftung (GmbHG – German Act on Companies with Limited Liability), which the Bundesgerichtshof (BGH – German Federal Court of Justice) has identified as a “cornerstone of the GmbHG.“ In consideration of the impressive period of applicability and evident resistance of the provision against legislative encroachments, the lay person, for example a managing director of a GmbH as primary addressee of the provision, is now supposed to be able to assume that at least the fundamental legal issues concerning the provision have been sufficiently clarified through jurisprudence and legal practice in the meantime.
Recent Developments of Corporate Governance in the European Union and their Impact on the German Legal System
Authors: Kouloridas Athanasios , von Lackum Jens
Published: March 2019

The collapses of several US-businesses like those of Enron and Worldcom and a number of scandals in the EU – in the recent past that of Parmalat – have strongly affected public confidence in the operation and governance of large entities trading their shares in organized capital markets. The European Commission reacted by issuing the Action Plan on Modernizing Company Law and Enhancing Corporate Governance in the EU on 21 May 2003. The Action Plan contains measures which the Commission wants to implement over the short term (until 2005), medium term (until 2008) and long term (until 2010). The key issues set up in the Action Plan concern corporate governance, capital maintenance, recapitalization as well as decreasing capital, groups of companies, international corporate restructuring and the introduction of a new legal form of incorporation. The fact that the big rating agencies have begun to rate the corporate governance performances of major companies, can well be seen as a further indicator that good corporate governance has an important concern for managers, shareholders and for policy makers. As part of the Action Plan, the Commission has recently launched consultations on board responsibilities and improving financial and corporate governance information, on directors’ remuneration and on the role of (independent) non-executive or supervisory directors. In the light of these recent consultations and the results of the public consultation on the Action Plan, this Article offers an overview and assessment of the corporate governance measures planned at Community level.
A ‘Common European Home'? The Rule of Law and Contemporary Russia
Authors: Frei Michael , MacLaren Malcolm
Published: March 2019

Russian President Vladimir Putin was quoted in a newspaper article last year as claiming that “[b]y their mentality and culture, the people of Russia are Europeans”. The accuracy of this claim has been a topic of considerable debate in Russian literature and politics from the time of Czar Peter the Great at least. The pressing question is whether Russia wants to be part of today's Europe. Mounting evidence from the domestic and foreign policy of the Russian Federation suggests that the answer to this question is ‘nyet'.
Value-added Norms, Local Litigation, and Global Enforcement: Why the Brussels-Philosophy failed in The Hague
Authors: Calliess Gralf-Peter
Published: March 2019

In the early Nineties the Hague Conference on International Private Law on initiative of the United States started negotiations on a Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters (the “Hague Convention“). In October 1999 the Special Commission on duty presented a preliminary text, which was drafted quite closely to the European Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters (the “Brussels Convention“). The latter was concluded between the then 6 Member States of the EEC in Brussels in 1968 and amended several times on occasion of the entry of new Member States. In 2000, after the Treaty of Amsterdam altered the legal basis for judicial co-operation in civil matters in Europe, it was transformed into an EC Regulation (the “Brussels I Regulation”).