bluuebunny/crossref_metadata_2025 huggingface dataset:
J.D.
Authors: Goodrich Peter
Published: March 2019

Jacques Derrida. J.D. for short. And J.D. of course is titular. It is the acronym for Juris Doctor. It signifies a lawyer or one wise in the law. If we are to recollect and celebrate his life in its juridical context and significance then Jacques Derrida, J.D., is not a bad place to start. Technically, of course, and despite the legal sounding acronym, J.D. was not a lawyer. He did, however, hold a visiting appointment at a Law School in New York. My law school in fact. Let me add, at the risk of getting personal for a moment – and if not now, when? – that in many ways I am here because he was. And then also some of his most influential articles were on the subject of law or were delivered and published first in a legal forum. His essay on Kafka, on the law of genre, for example, and then again his lengthy and widely circulated exposition of “The Force of Law.” He kept coming back to law: he inhabited its margins, searched for its supplements, dwelt on its traces.
The Idea of Thick Constitutional Patriotism and Its Implications for the Role and Structure of European Legal History
Authors: Kumm Mattias
Published: March 2019

A sense of cohesion grounded in a common identity is widely believed to be a prerequisite for a functioning democratic European polity. If the European Union is to master successfully the tasks assigned to it in the Constitutional Treaty and, using a non-consensual procedure, decide on policies that concern the security of its citizens or have significant distributive effects, then a sufficiently thick common identity is believed to be necessary both to legitimate and to ensure the functioning of the polity in the long term. There is little doubt that such an identity is currently missing. The question is what such an identity should be and whether the prepolitical pre-requisites for the development of such an identity exist. Are there historical experiences and accomplishments that enable European citizens to understand themselves as having suffered a common past and which animate them to see themselves engaged in the construction of a common political future? What are the appropriate narratives around which a European identity could, over time, develop? What should the focus of a self-conscious politics of memory be? What are the implications for the role and structure of European historiography, in particular for the European legal and political historiography?
The Management Board's permission to disclose Due Diligence Information Before a Corporate Acquisition in consideration of the Impact of the Act to Improve the Protection of Investors (Gesetz zur Verbesserung des Anlegerschutzes)
Authors: Rittmeister Maximilian
Published: March 2019

Prior to an acquisition of a stock corporation the purchasers often perform a due diligence at the target company. The due diligence is the examination of the company and can cover the legal, commercial, environmental, financial and fiscal matters of the company. Under US law it is the purchaser's duty to examine a company accurately since the risk of any deficiencies is on him. German law, in contrast, does not require the purchaser to examine the company he purchases. According to § 442 (1) sentence 2 of the German Civil Code (Bürgerliches Gesetzbuch– BGB) the buyer does not have rights with respect to a defect, if he is unaware of this defect as a result of gross negligence on his part. While for some years now, the performance of due diligence prior to purchasing a company has become quite customary in Germany, German law does not yet require the person wanting to purchase a company to perform a due diligence.
The Application of European Law in the New Member States: Several (Early) Predictions
Authors: Kühn Zdeněk
Published: March 2019

After the EU Enlargement of 2004, the law courts of the new Member States now fulfill a twofold role of applying both national and European law. The application of European law also entails the duty of judges to construe their own domestic law as close as possible with EU law, and, if that is not possible, the duty arises to set aside the domestic law found to be incompatible with European law. In consequence, developments in the next decade will test judges’ capacity for properly applying European law and this process will inevitably present a serious challenge to the Central European judicial systems. While evaluations can first be made no sooner than a few years after the EU Enlargement, there are important indications that can suggest the probable outcome of that challenge. This article briefly outlines the application of European law in those countries prior to EU Enlargement and then deals with the important factors which are likely to influence its future application in the new Member States.
The Legal Framework of Regulatory Competition Based on Company Mobility: EU and US Compared
Authors: Kieninger Eva-Maria
Published: March 2019

The phenomenon of regulatory competition, if it exists at all, has at least two prerequisites: On the “supply-side” there must be incentives for corporate law-makers to tailor their products according to the needs of those who decide about the place of incorporation (or re-incorporation). On the “demand-side”, there must be a real and not only a theoretical possibility to choose the applicable corporate law by choosing the place of (re-)incorporation. Whether such a possibility is a real or theoretical one primarily depends on the costs of such a move compared to its benefits. For the decision about the place of the real seat of a company, “good” or “bad” corporate law is only one factor, very often a minor one among other legal and factual determinants such as corporate and other taxes, labor and environmental law, the accessibility of raw material and product markets or the existence of qualified work force. As long as the choice of a certain corporate law is linked to the choice of the real seat of the corporation, freedom to choose the applicable corporate law only exists on a theoretical level. Corporate law can only be chosen as part of a much larger bundle. If, however, companies are able to opt for a corporate seat that is independent from its real seat (and hence at relatively low costs), the freedom to choose the applicable corporate law becomes a real one and that way the second prerequisite for regulatory competition mentioned above will be fulfilled.
Much Ado About Human Rights: The Federal Constitutional Court Confronts the European Court of Human Rights
Authors: Hartwig Matthias
Published: March 2019

On October 14, 2004 the Bundesverfassungsgericht (BVerfG – German Federal Constitutional Court) delivered a judgment which gave rise to vivid reactions in the mass media and to a dispute between the European Court of Human Rights (ECtHR) and the German Federal Constitutional Court. In interviews, members of the Strasbourg court spoke about their disappointment in the German Court's unwillingness to implement decisions of the ECtHR while members of the German court referred to the necessity to respect national particularities. Whereas, normally, the ECtHR and the constitutional courts of the Member States of the Council of Europe are fighting side by side for human rights and, therefore, consider themselves as natural allies, this time their decisions, which seem to be incompatible, led to a dispute which attracted as much public interest as a film or theatre premiere.
The Promise of German Criminal Law: A Science of Crime and Punishment
Authors: Dubber Markus Dirk
Published: March 2019

The system of German criminal law is the product of a centuries-long project of scientific discovery undertaken by scholars who traditionally have defined the science of criminal law (Strafrechtswissenschaft) in contradistinction to the markedly unscientific business of criminal justice policy (Kriminalpolitik). Insular and formalistic by design, the resulting highly differentiated taxonomy of doctrinal categories can claim only a loose connection to rules of positive law as codified in the general part of the German Criminal Code and instead derives more directly from scientific inquiries into the ontology of crime dating back to the early decades of the twentieth century.
The European Court of Human Rights’ Judgment in the Case ofBosphorus Hava Yollari Turizm v. Ireland
Authors: Schorkopf Frank
Published: March 2019

The European Court of Human Rights, on 30 June 2005, handed down its long awaited judgment in the caseBosphorus Hava Yollari Turizm v. Ireland. The case concerned the responsibility of contracting parties for legal measures induced by the European Community.
German Federalism and Recent Reform Efforts
Authors: Gunlicks Arthur B.
Published: March 2019

In both the United States and Germany constitutional lawyers, politicians, and the attentive public speak of “dual federalism.” In the United States this means that the federal government and the states have separate political and administrative responsibilities and their own sources of revenues. In Germany, in contrast, dual federalism means that the federal government, i.e., the executive and legislative branches, are responsible for most legislation, and that the Länder (states; singular, Land) generally administer the laws (in large part through their local governments) on their own responsibility. In both federal systems “dual federalism” has been undermined if not replaced by “cooperative federalism,” generally associated with the New Deal era in the United States and the Finance Reform of 1969 in Germany. In the meantime “intergovernmental relations” has more or less replaced the concept of “cooperative federalism” in the United States, while Politikverflechtung (political/policy interconnection and coordination) is perhaps the more commonly used term in Germany today. In both cases the new terms reflect an interrelationship among federal, regional, and local levels that goes beyond mere cooperation.
The Right to an Effective Remedy Pursuant to Article II-107 Paragraph 1 of the Constitutional Treaty
Authors: Pabel Katharina
Published: March 2019

The fundamental right to an effective remedy as guaranteed in Art. II-107(1) of the ‘Treaty establishing a Constitution for Europe’ (CT) is part of a comprehensive guarantee of effective legal protection and procedural guarantees. In the following, this fundamental right and how it relates to Parts I and III of the CT will be investigated in detail. First, the scope of Art. II-107(1) CT will be identified in Part B. Part C comments on the binding effect of this right. Finally, in Part D, some aspects of the Union's system of legal protection will be investigated in the light of Art. II-107(1) CT, and it will be discussed whether this right could be an instrument to close gaps in the legal protection of individuals against measures of the European Union.
Essay: Postnationalism, (Dis)organised civil society and Democracy in the European Union: Is Constitutionalism Part of the Solution or Part of the Problem?
Authors: Wilkinson Mike
Published: March 2019

The idea of a European constitution has been a constant refrain in academic and political discourse on European integration, and has recently gathered considerable momentum due to the intervention of politicians and the media and its explicit institutional recognition in the Laeken Declaration on the Future of the European Union. If much of the debate is characterised, tainted even, with a top-down logic of legal-constitutional engineering - a logic which arguably flows from the elitist political roots and philosophy of the project itself - there is nevertheless a growing tendency to examine the theoretical alternatives through which a more open and inclusive constitutional process might be understood. There is considerable irony in an endeavour to ‘democratise’ a postnational polity through a constitutional settlement, brought out when the theoretical underpinnings of the constitutional movement are laid bare, and the alternatives to a hierarchical or legocentric understanding of constitutionalism's reach are examined. The purpose of this paper is to suggest some of the possible pitfalls in a constitutionalist position fixated on a hierarchical or federal arrangement, and highlight some theoretical alternatives which appear accommodating, even demanding, of a more bottom-up approach and conducive to a radical inclusion of civil society, both organised and disorganised, in the structures of constitutional construction and negotiation.
Another Test in Proceduralizing Democracy: The Oral Proceedings in the NPD Party Ban Case before the Federal Constitutional Court
Authors: Hanschmann Felix
Published: March 2019

After recognizing that the motions in the party-ban proceedings against the “National Democratic Party of Germany” were partly based on evidence provided by so-called V-Männer informants (members of the party who were supervised and paid by the secret-services) and after suspending the decision to hold the substantive hearing because of this information, the Bundesverfassungsgericht (BVerfG – Federal Constitutional Court) last Tuesday, 8 October 2002, resumed the party-ban proceedings with an extraordinary and – in the history of the Court - unique session.
The End of the Real Seat Theory (Sitztheorie): the European Court of Justice Decision inUeberseeringof 5 November 2002 and its Impact on German and European Company Law
Authors: Baelz Kilian , Baldwin Teresa
Published: March 2019

In a long awaited judgement delivered on 5 November 2002, the European Court of Justice (ECJ) has ruled that it isincompatiblewith the freedom of establishment guaranteed in Arts. 43 and 48 EC for a member state to deny a company formed in a member state which moves its central place of administration to another member states, legal capacity (and standing to sue or be sued in courts). Against the expectations of many German legal commentators and the recommendation of the Advocate General, the ECJ also held that where a company incorporated in another member state exercises its freedom of establishment in another member state, that other member state isrequired to recognisethe company's legal capacity (and capacity to be a party to legal proceedings) which it enjoys under the laws of its state of incorporation.
The Treatment of Hate Speech in German Constitutional Law (Part II)
Authors: Brugger Winfried
Published: March 2019

As pointed out by the Federal Constitutional Court, a specific determination of the appropriateness of hate speech prohibitions can be based only on the circumstances of individual cases. Some particularly prominent cases are now reviewed.
Creating the Responsible Firm: In Search for a New Corporate Governance Paradigm
Authors: Cornelius Peter , Kogut Bruce
Published: March 2019

The term corporate governance has come to mean many things to many people. One important reason is that views continue differ as to the fundamental question of the role the firm. While some believe that corporations can contribute best to society if they do what they do best, namely to provide high quality goods and services to the marketplace, for others corporate responsibilities are much broader.
Some Observations on the Use of Structural and Remedial Measures in American and German Law After Sarbanes-Oxley
Authors: Donald David C.
Published: March 2019

Rational investment decisions require accurate information regarding the operations and performance of issuers. As the U.S. Securities and Exchange Commission (“SEC”) has recently noted: “Accurate and reliable financial reporting lies at the heart of our disclosure-based system for securities regulation, and is critical to the integrity of the U.S. securities markets. Investors need accurate and reliable financial information to make informed investment decisions. Investor confidence in the reliability of corporate financial information is fundamental to the liquidity and vibrancy of our markets.” Issuers have strong motives to signal to investors that the business information they disclose is correct and complete – so as to build solid reputations and avoid discounts that investors might apply to their stock prices as compensation for undisclosed risk or misrepresented results. A similar argument applies to “gatekeeping” reputational intermediaries, such as auditing firms and investment banks that lend their reputations to their clients in various ways. However, dishonest issuers and gatekeepers can take advantage of a generally honest market (that does not contain a substantial fraud risk discount), and the return on fraud for a given member of a firm might exceed such individual's pro rata share of the firm's overall reputational capital, making crime literally pay; therefore, regulation must be introduced to supplement market controls and mandate full and accurate disclosure.
Subsidiarity and Judicial Review in German Federalism: The Decision of the Federal Constitutional Court in theGeriatric Nursing ActCase
Authors: Rau Markus
Published: March 2019

On October 24, 2002, the Second Senate of theBundesverfassungsgericht(German Federal Constitutional Court) issued its ruling in theGeriatric Nursing Actcase. The eagerly expected judgment not only puts an end to the discussion on the Federation's legislative powers in the field of geriatrics, which has occupied German politicians and constitutional scholars since the mid-1980s, when the drop in the number of applicants for geriatric nursing jobs and the steady growth of the elderly population have led to calls for a standardization of the education for geriatric nurses at Federal level. More importantly, the decision brings clarity to the question of the justiciability of the so-calledErforderlichkeitsklausel(“necessity clause”) laid down in Article 72 para. 2 of the Basic Law.
Compulsory Military Service and Equal Treatment of Men and Women – Recent Decisions of the Federal Constitutional Court and the European Court of Justice (Alexander Dory v. Germany)
Authors: Raible Karen
Published: March 2019

The European Court of Justice (ECJ) decided, in the caseTanja Kreil v. Germany,that Council Directive 76/207/EEC of 9 February 1976 (equal treatment directive) precludes the application of national provisions, such as those of German law, which impose a general exclusion of women from military posts involving the use of arms. The ECJ found that such policies violated the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions. Since this ruling both theBundesverfassungsgericht(BVerfG – Federal Constitutional Court) and the ECJ have had to confront the question whether the German system of compulsory military service for men is compatible with Article 3.2 and 3.3 of theGrundgesetz(GG – German Basic Law) and the equal treatment directive.
AALS Annual Convention Plenary Panel: Impact of Globalization on Human Rights – Introduction of the Panel
Authors: Grossman Dean Claudio
Published: March 2019

Addressing Human Rights requires that we consider both reality and imagination. What forces are shaping the world in which we live? What space is available for change? What role is played, and can be played by individuals? At a meeting of relatively young leaders of this hemisphere, organized by the Inter-American Development Bank at the end of the Twentieth Century, Gabriel Garcia Marquez was asked what we might expect from the Twenty-First Century as we emerge from the Twentieth Century, which distinguished itself with two world wars and with genocide. Gabriel Garcia Marquez responded by saying that we should not expect anything from the Twenty-First Century. He explained that everything relevant was the result of imagination, from the Ninth Symphony to heart transplants; they were in the heads of their inventors before taking place in reality.
Would chocolate by any other name taste as sweet?
Authors: Slater Donald
Published: March 2019

Food law in the European Community is a touchy subject. One of the big ongoing debates in this area centres on the question of what names we call our foodstuffs by. In an internal market where local supermarket shelves are stocked with products coming from all around the EC and beyond, how can we be sure that the contents of the packets conform to our connotations of the name on the label? For example, if it says “chocolate” on the label, how can we be sure that it really is “chocolate” within our understanding of the word? The question of what names can or should go on labels is, sadly, very complicated. This article therefore intends to look at only one aspect of this problem: when a Member State is allowed to insist that the name of an imported “generic” product be changed. We will begin by briefly looking at the case law and one of the major pieces of legislation in this area – the Labelling Directive – before going on to discuss application of the law to the recent Chocolate Cases, handed down by the European Court of Justice (hereafter the “Court”) at the beginning of this year. This discussion will give some (hopefully) interesting insights into the way in which primary law, as interpreted by the Court, and secondary legislation interact and into the balancing of consumer protection and free trade performed by the Court.
Allied by Surprise? The Economic Case For an Anti-Discrimination Statute
Authors: Engert Andreas
Published: March 2019

TheBundestag's1998-2002 term witnessed an unprecedented agenda in private law legislation. Besides profound changes in various areas, including a radical overhaul of the German Law of Civil Procedure, the GermanBundestag(parliament) enacted a sweeping reform of theBürgerliches Gesetzbuch(German Civil Code). Compared to these radical changes the proposed Act to Prevent Discrimination in Private Law seemed a rather modest endeavor. The project nonetheless turned out to be more troublesome than expected. In May 2002, it was shelved, due also to heavy lobbying activities by,inter alia, the Catholic and Protestant Churches. Yet it will no doubt soon re-enter the stage as Germany is under an obligation to translate two EU anti-discrimination directives into national law.
“Post” As Justification: International Law and Democracy-Building after Iraq
Authors: Korhonen Outi
Published: March 2019

The “post”-phase of a conflict has become the justification for both the possible action and the inaction of the Western states. It is not so much any longer that we would be averse to war in any circumstances, as the non-use of force principle in its absolute sense would require. Again, after a good fifty years of the UN and its raison d'etre – the guardianship of peace – we seem to have arrived at an era where ideological contestation no more has the deterrent effect that it did during the Cold War and, consequently, there are cases of the use of force that are accepted and even regarded as just as long as they are quick. When looking back at the NATO bombings of FRY in 1999 as the response to atrocities in Kosovo many are able to accept that ‘though illegal they were legitimate’ in some sense. This is the conclusion irrespective of whether one, at the time, was for action or inaction. Such a ‘condoning condemnation’ has become the popular middle road as so many other paradoxes in world politics. Through the cases of Afghanistan and Iraq the paradox has gained in strength. Although there is quite strong and unequivocal opposition to the wars and a condemnation for their illegality, the political elite of the West seems to be quick in forgetting scruples and taking a keen interest in the “post”-management of the targets, i.e. the states that are about to be or already have been ‘bombed into the stone age’ or into shambles in any case. There is a general rush to the “post”-phase; both in the sense that the tacit requirement for the condoning condemnation is that the action be quick – the use of force should be very limited in time – and, secondly, in the sense that already before the bombs fall (or during) the major reconstruction plans and projects are dealt. This article outlines some points of critique that could be launched at the phase when the majority cannot be bothered to re-analyze the wrongs committed ex ante.
Anti-discrimination as a Program of Private Law ?
Authors: Picker Eduard
Published: March 2019

The controversy over the planned anti-discrimination laws in Germany, specifically the new provisions in private law to be discussed here, rages on unabated. Publications on this planned law are numerous. And, whether Pro or Contra, they turn out notably more engaged and heated than is suited to the lawyers’ traditional temperament. The fact that the formal discussions and rounds of debate, which were long ago extended to non-lawyers, continue to multiply shows symptomatically to just what extent the topic is now able to get experts and laypeople alike worked up. The principle of equality of human beings, for centuries “one of the pillars of European democracies”, is about to gain currency in new fields of significance: it now aims beyond the binding of states, to bind their citizens as well.
Taking stock of the European Convention What added value does the Convention bring to the process of treaty revision?
Authors: Jarlebring Johannes
Published: March 2019

According to Article 48 of the Treaty on the European Union (TEU), the founding treaties of the Union can only be amended through a three-step procedure. First, the Council calls an Intergovernmental Conference (IGC), after having consulted the European Parliament (EP) and the Commission. Second, within the framework of the IGC, representatives of the governments of the Member States negotiate and sign the amendments to the treaties by common accord. Third, the agreement is submitted to national ratification procedures. When all three steps are concluded, each Member State having ratified the amendments to the treaty, the changes enter into force.
The Proposal for a new Directive concerning Credit for Consumers
Authors: Nemeth Kristin , Ortner Helmut
Published: March 2019

Since 1995 the Commission has repeatedly reviewed the operation of directive 87/102/EEC for the approximation of the laws, regulations and administrative provisions of the member states concerning consumer credit. This was regarded to be necessary mainly for two reasons: firstly, even at the time of the enactment of the original directive its level of protection was lower than in most member states; secondly, the Commission repeatedly emphasised several changes, which had taken place in regard to the credit services sector in recent years. Whereas the previous directive was targeted at the two most common “products” at that time, namely hire purchase agreements and instalment credit and reflected the cash-based society of that time, the range of products presently offered is much more colourful.
Antinomies of Power and Law: A Comment on Robert Kagan
Authors: Paulus Andreas
Published: March 2019

Robert Kagan's article and book on the future of transatlantic relations have gained much prominence in the debate on the reasons for and impact of the transatlantic rift on the war against Iraq. However, and regrettably, Kagan's work confirms rather than challenges the prejudices and stereotypes of both sides. After putting Kagan's approach in a political perspective, I intend to show that the antinomies used by Kagan and other participants in the debate, such as might and right, unilateralism and multilateralism, prevention and repression, hegemony and sovereign equality, democratic imperialism and pluralism, constitute useful analytical tools, but do not in any way capture the divergence of values and interests between the United States and Europe. However, the result of such an analysis does not lead to the adoption of one or the other extreme, but to the realization that international law occupies the space between them, allowing for the permanent re-negotiation of the place of “Mars” and “Venus” in international affairs.
Welcome to the Desert of Real Imagination
Authors: Buckel Sonja , Wissel Jens
Published: March 2019

In response to the violence of the international system, “realist” approaches are flourishing. In the aftermath of “9/11”, gulf war No. 3, the challenge to the achievements of international law and the unchallengeable dominance of the US military-industrial complex, this is particularly noticeable. Theories which affirm an anarchical world without any international regulation, in which only the application of military power guarantees freedom and security are gaining credibility. This everyday understanding is also employed in Robert Kagan's essay. While “the Americans” exercise power in an anarchical international system, “the Europeans” aim for a post-historical paradise of peace and relative prosperity. The fuss about Kagan's essay can hardly be explained by a rich analysis of the current international situation, for it does not supply this. It is even more surprising that the superficial pattern of interpretation considers that the essay expresses a “fundamental truth of the international system,” which is only articulated once in ten years. But we want to argue that it is not about “truth,” but about the production and propagation of a hegemonic discourse. Accordingly Kagan must be perceived as what he is: the co-founder of the reactionary think tank “Project for a New American Century”; an intellectual belonging to the neo-conservative leadership structure, a group that pressed the ideological case for the war against Iraq.
Caricatures and Political Purposes: A Comment on Robert Kagan's Of Paradise and Power
Authors: Lotherington John
Published: March 2019

Robert Kagan's Of Paradise and Power is the latest attempt, following Francis Fukuyama's The End of History and Samuel Huntington's The Clash of Civilizations, to provide us with “The Answer,” an analysis of the way the world works to take away some of the pain of the uncertainties which have dogged us since the end of the Cold War. The pattern has been the same: first an article in a journal, striking a chord with a wider than usual readership and then the press in general, aided by an arresting sound-bite –(the titles in the case of Fukuyama and Huntington, the tag from the first page of Kagan's Policy Review article: “the Americans are from Mars and Europeans are from Venus.”). It is through such caricature, given just enough resonance to contemporary anxieties and provoking just enough outrage, that a viewpoint can gain currency among the journalists and policy wonks who set the parameters of the policy debate surrounding governments and legislators. To reinforce academic respectability, the articles were then expanded into books, to reveal, or create, the philosophical and historical underpinnings of the original argument. The timing of these publications creating a stir is everything: those moments when the worrying complexity of international relations cry out for the simplicity which a caricature can offer, when there is a demand to make the hard-to-calibrate risks in world affairs comprehensible through their replacement by goals achieved or threats cut and dried.
Legal Aspects of Unified Financial Services Supervision in Germany
Authors: Mwenda Kenneth K
Published: March 2019

This paper examines recent institutional and structural developments relating to unified supervision of financial services in Germany. The main thrust of the academic debate concerning unified supervision of financial services was started in the UK. More recently, international organizations have taken an interest in the subject. Some of the issues confronting countries the world-over with respect to the unified supervision of financial services are whether to adopt unified supervision and, if so, how to structure the institutional and regulatory framework for unified agencies. At the outset, it must be pointed out that issues of regulatory organization are essentially second order issues. Far more important—and the first order issue— is the implementation of financial regulation, in particular supervisory capacity and its quality and the soundness of the legal framework underlying the regulatory process.
Proceduralization Of The Category Of Law+
Authors: Wiethölter Rudolf
Published: March 2019

Preliminary Remark: The observations below are to be understood more as a draft than as theses. They refer to and continue a series of earlier considerations, most recently in two papers: Social Science Models in Economic Law, in Contract and Organisation, 52-67 (T. Daintith/G. Teubner eds., 1986) and Materialization and Proceduralization in Modern Law, in Dilemmas of Law in the Welfare State 221-248 (G. Teubner ed. 1986); both papers are also to be found (in German) in the following documentation: G. Brüggemeier, Workshop zu Konzepten des postinterventionistischen Rechts, Materialien des Zentrums für Europäische Rechtspolitik, 2-24, 25-64 (Ch. Joerges eds., Heft 4, 1984).
Review Essay— Helen Nissenbaum'sPrivacy in Context: Technology, Policy, and the Integrity of Social Life(2010)
Authors: Wong Tiffany
Published: March 2019

Social media is a dominating force in modern social life as internet technology has taken hold of our cyber-driven society. Many scholars, as will be explored below, have articulated fears and enthusiasm about what can be interpreted as a reconfiguration of privacy in a culture mediated by technology. Scholarship ranges from those opposing new conception of privacy in favour of protecting rights in traditional private/public distinctions with privacy as a privilege worthy of proprietary protection to those reveling in opening floodgates for information to re-invent or even destroy any semblance of traditional distinctions of privacy. These poles become even more accentuated in light of fast-proliferating technology illustrated by popular social networking websites such as Facebook, Twitter, Foursquareetc.In the North-American debate, the privacy concerns connected with these developments are compounded further by the U. S. Supreme Court's recent decision,Nelson v. NASA, which involves the constitutional right of government to ask for employee's personal information in the context of national security and surveillance.
Lawmaking Through Advisory Opinions?
Authors: Oellers-Frahm Karin
Published: March 2019

International courts and tribunals are firstly and particularly conceived to settle legal disputes between States and/or other organs or individuals admitted as parties according to the statute of the respective court by means of a binding decision. An advisory function is not inherent in the function of a judicial body, but has to be transferred expressly upon a court or tribunal in the constituent instrument. For non-standing judicial bodies, i.e., arbitral tribunals, an advisory function is rather unusual, but not altogether ruled out: The parties to acompromismay empower the tribunal to give an advisory opinion.
Welfare Rights in Canadian and German Constitutional Law
Authors: Schwebel Chava
Published: March 2019

According to liberal political theorists, such as John Locke and Adam Smith, liberty and equality are competing values. In Canadian constitutional law, the commitment to liberal individualism has pushed questions of socio-economic rights from the constitutional sphere into the political one.
Casenote–– The Fundamental Right to the Guarantee of a Subsistence Minimum in theHartz IVDecision of the German Federal Constitutional Court
Authors: Egidy Stefanie
Published: March 2019

In February 2010, the German Federal Constitutional Court (Bundesverfassungsgericht) issued a ruling on the so-called “Hartz IV legislation.” The ruling dealt with the law on social benefits according to the Second Book of the German Code of Social Law and was based on the “fundamental right to the guarantee of a subsistence minimum” derived from the declaration of human dignity in Article 1(1) of the German Basic Law in conjunction with Article 20(1), the principle of the social welfare state.
Student Comment—Germany's Commitment to theSozialstaatThrough Film
Authors: Klaes Chaz
Published: March 2019

Trümmerfilme(“rubble films”) provide a first-hand, although cinematographic, view of postwar Germany. They depict the myriad of postwar living conditions and day-to-day problems. The German wordVergangenheitsbewältigungmeans “the process of dealing with the past.” This term captures the film directors' respective approaches to depicting the past as a process rather than a single act. TheTrümmerfilmeare essential for anyone studying the postwar period. Although the films do not provide a complete or uniform approach, they provide numerous insights into the predominant problems faced by Germans during the immediate postwar period. Through the depiction of these social conditions, the films provide insight into the origin of the Basic Law's commitment to theSozialstaat.
Casenote –– Euro Rescue Package Case: The German Federal Constitutional Court Protects the Principle of Parliamentary Budget
Authors: Recker Sebastian
Published: March 2019

In its Aid Measures for Greece and Euro Rescue Package case, the German Federal Constitutional Court affirmed the Parliament's budget authority to provide financial aid measures to the European Monetary Union. The judgment conforms to the German Federal Constitutional Court's case law concerning the transfer of sovereign power to international organizations and reaffirms that German participation in international organizations is linked to constitutive pillars of the German Basic Law. One of these pillars is the Principle of Parliamentary Budget. This principle provides that any financial aid package has to be approved by the Parliament of the Federal Republic of Germany (Bundestag) before guarantees can be given to other states by the Federal Government. In its holding, the German Federal Constitutional Court ruled that the aid measures for Greece and the euro rescue package were consistent with the Principle of Parliamentary Budget and German Basic Law.
The Ins and Outs of Transnational Private Regulatory Governance: Legitimacy, Accountability, Effectiveness and a New Concept of “Context”
Authors: Zumbansen Peer
Published: March 2019

The continuing proliferation of transnational private regulatory governance challenges conceptions of legal authority, legitimacy and public regulation of economic activity. The pace at which these developments occur is set by a coalescence of multiple regime changes, predominantly in commercial law areas, but also in the field of internet governance, corporate law and labor law, where the rise to prominence of private actors has become a defining feature of the emerging transnational regulatory landscape. One of the most belabored fields, the transnational law merchant or,lex mercatoria, has gained the status of aposter child, as it represents a laboratory for the exploration of “private” contractual governance in a context, in which the assertion of public or private authority has itself become contentious. The ambiguity surrounding many forms of today's contractual governance in the transnational arena echoes that of the far-reaching transformation of public regulatory governance, which has been characteristic of Western welfare states over the last few decades. What is particularly remarkable, however, is the way in which the depictions of “private instruments” and “public interests” in the post-welfare state regulatory environment have given rise to a rise in importance of social norms, self-regulation and a general anti-state affect in the assessment of judicial enforcement or administration of contractual arrangements. A central challenge resulting from case studies such as the transnational law merchant is from which perspective we ought to adequately study and assess the justifications, which are being offered for a contractual governance model, which prioritizes and seeks to insulate “private” arrangements from their embeddedness in regulated market contexts, on both the national and transnational level.
Transnationalizing Private Law – The Public and the Private Dimensions of Transnational Commercial Law
Authors: Calliess Gralf-Peter , Renner Moritz
Published: March 2019

Transnational Commercial Law is an interdisciplinary research field which is concerned with the institutional organization of global economic exchange processes. From the perspective of institutional economics there are basically four different types of governance mechanisms which may be employed to institutionally support exchange. These are (1) uniform governance, where exchange is organized outside the market as intra-firm-trade and problems are solved by virtue of hierarchical coordination, (2) bilateral governance, where exchange between independent parties is self-stabilizing as long as the value of a continued relationship is higher than the profit from defecting, (3) trilateral private governance, where third-party institutions such as arbitration, reputation-based sanctions, and private norms are involved, and finally (4) trilateral public governance, where conflicts are solved by reference to state commercial law, courts, and public enforcement.
Does Age Prevent Punishment? The Struggles of the German Juridical System with Alleged Nazi Criminals: Commentary on the Criminal Proceedings Against John Demjanjuk and Heinrich Boere
Authors: Beck Susanne
Published: March 2019

Modern western societies are aging—according to statistical analyses, in 2060, every seventh German citizen will be over 80 years old. The challenges of an aging society occupy jurisprudence and the legal practice. Issues specific to aging offenders and aging victims are more relevant than ever and must be analyzed. The question of old age is one of many problematic aspects of two criminal cases recently decided by the German Federal Constitutional Court. In the following, age's relevance to criminal prosecution and material criminal law will be discussed and related to an analysis of the proceedings of John Demjanjuk and Heinrich Boere, two alleged Nazi criminals, tried in their old age. Demjanjuk's case especially has raised questions well beyond the relevance of his age (89 years). The cases open up many interesting facets of German criminal procedural law and material law connected to the crimes of the Nazi era.
The Effects of the Judgments of the European Court of Human Rights According to the German Constitutional Court
Authors: Tomuschat Christian
Published: March 2019

The Federal Republic of Germany counts among the earliest States parties to the European Convention on Human Rights (ECHR). It ratified the ECHR on 5 December 1952, three years ahead of Italy, and hence found itself among the original members of the treaty system when the ECHR entered into force on 3 September 1953. For the new democratic Government, it was a decision of principle to affirm its willingness to cooperate peacefully within the group of European States, submitting to an international review mechanism with regard to all of its activities. Therefore, very shortly afterwards, it accepted also the individual application under Article 25 ECHR, which at that time was not yet compulsory for all States parties. For many years under the Nazi dictatorship, Germany had brought death and destruction to its neighbours. Now, organized under a democratic and liberal constitution, the Basic Law (BL), it wanted to manifest its newfound identity as a civilized State abiding by the rule of law.
Headwind from Europe: The New Position of the German Courts on Personality Rights after the Judgment of the European Court of Human Rights
Authors: Coors Corinna
Published: March 2019

In Germany, as in the U.S., the relationship between protection of privacy and freedom of expression has been subject of many decisions. In the U.S. a right of privacy was famously conjured out of common law precedents by Warren and Brandeis. Over the course of a century, it developed into a right of publicity, which gave celebrities the power to prevent the commercial use of their names, endorsements, images, voices, and other attributes of personality by unauthorized third parties. In defining such a right, much attention has been focused on separating what is commercially unacceptable from what is desirable free speech under the First Amendment of the U.S. Constitution. It has also been important to settle the duration of such rights. Publicity rights as a commercial value of a person's identity are therefore well established in the U.S., although state laws vary widely as to the extent of protection. In Germany, due to the constitutional background of the personality right, the balance between public and private interests still operates differently. After the European Court of Human Rights (ECHR) in 2004 convicted the German Federal Republic of violating the Convention for the Protection of Human Rights Fundamental Freedoms, the German Federal Court (Bundesgerichtshof—BGH) took the opportunity to think over its previous position about image rights. Three judgments were examined by the German Constitutional Court (Bundesverfassungsgericht—BVerfG) and one of them was reversed.
Case Note – Case C-555/07,Kücükdeveci v. Swedex, Judgment of the Court (Grand Chamber) of 19 January 2010
Authors: Wiesbrock Anja
Published: March 2019

On 19 January 2010 the European Court of Justice (ECJ) was asked to rule on the application and scope of the general principle of non-discrimination under Community law. InKücükdevecithe Court had the opportunity to clarify a number of questions concerning the principle of non-discrimination and the application of Directive 2000/78 that had remained unanswered after the famousMangoldjudgment and subsequent case law. The case was particularly apt to clarify the scope ofMangold, as it concerned a similar factual situation, albeit after the implementation period of Directive 2000/78 had expired. Consequently, many issues addressed in that judgment arose anew. The Court had to deal with the relationship between Directive 2000/78 and the general principle of non-discrimination on the grounds of age, the possibility of justifying differential treatment on the basis of national social and employment policies, the extent of the doctrine of indirect effect, and the direct horizontal effect of directives.
Whitney Harris (1912–2010): The Last U.S. Prosecutor in the Nuremberg Trial Dies at 97
Authors: Safferling Christoph J.M.
Published: March 2019

Whitney R. Harris was the last surviving prosecutor who appeared before the International Military Tribunal (IMT) at Nuremberg during the trial of the principal surviving Nazi war criminals. He died on 21 April 2010 in his 98th year.
Where Does Scholarly Critique End? Where Does…“Parody” Begin? A Mini-Contribution to a Mini-Symposium on Critical Book Reviews, with the Permission of Don Miguel de Cervantes Saavedra
Authors: de la Rasilla del Moral Ignacio
Published: March 2019

In a village of Europe, the name of which I have no desire to call to mind, there lived not long since one of those book reviewers that keep a soft-tongue in the lance-rack for his friends' books, an old buckler with partisan coat-of-arms as a mark of his feudal loyalty to his academic ancestors, a lean hack to accompany him in the dark alleys of scholarly fears, and a greyhound for coursing his civil-servant oriented career's ambitions. An olla of rather more beef than mutton, a salad on most nights, scraps on Saturdays, lentils on Fridays, and a pigeon or so extra on Sundays, made away with three-quarters of his income. His first years in academia were of such quality as to drive him to the verge of quitting this miserable life more than once. The rest of his income went to a doublet of fine cloth and velvet breeches to attend academic congresses, and shoes to match for holidays, that were always research-oriented, and on weekdays he made a brave figure in his best homespun.