bluuebunny/crossref_metadata_2025 huggingface dataset:
Networks in Public Law: Notes on the 47thMeeting (2007) of German-Speaking Public Law Assistants in Berlin
Authors: Bauer Lukas , Lachmayer Konrad
Published: March 2019

Every year, the public law research assistants from all universities in Germany, Austria and Switzerland meet for a conference. This year's meeting of German-speaking public law assistants was the 47thmeeting of its kind. For the first time since 1983, and for the first time since German reunification, the meeting took place in Berlin. The meeting was organised by and held at both universities in Berlin – theFreie UniversitätandHumboldt Universität.About 250 Public Law assistants from Germany, Switzerland and Austria attended to discuss various aspects of the general topic: Networks.
Reforming the Electoral System of the Dutch Lower House of Parliament: An Unsuccessful Story
Authors: Leenknegt Gert-Jan , van der Schyff Gerhard
Published: March 2019

Which element of democracy is to prevail in the composition of parliament: an accurate reflection of minorities and their ideas, or a strong bond between citizens and their representatives? The answer, it seems, is to be determined to a large extent by the national political culture. The political history of the Netherlands makes strict proportionality the highest principle in this regard. Over the years, various attempts at fundamental electoral reform have been left stranded. It seems that the current system of proportional representation will remain intact in the Netherlands in spite of periodic attempts at change, as it probably best reflects the Dutch culture's longing for maximum inclusiveness.
The Protection of Mothers in British and German Constitutional Law: A Comparative Analysis and a Contribution to the Implementation of the European Convention on Human Rights in the Domestic Legal Area
Authors: Zacharias Diana
Published: March 2019

The universal and regional systems of human rights protection recognize that mothers find themselves in situations which require special protection. For instance, Article 10 para. 2 of the International Covenant on Economic, Social and Cultural Rights stipulates that special protection should be accorded to mothers during a reasonable period before and after childbirth and that during such period working mothers should be accorded paid leave or leave with adequate social security benefits.
Report on theBundesverfassungsgericht's(Federal Constitutional Court) Jurisprudence in 2005/2006
Authors: Müller Felix , Richter Tobias
Published: March 2019

TheBundesverfassungsgericht(Federal Constitutional Court) is a constitutional body charged with the task of ensuring that all state institutions, i.e. the legislator as well as the judiciary and executive branches, obey the constitution of the Federal Republic of Germany. Its review standard is theGrundgesetz(Basic Law). Since its foundation in 1951, the Court has helped to secure respect and effectiveness for the free democratic constitutional order. The decisions have far-reaching repercussions, which becomes particularly clear when the Court declares a law unconstitutional. Given the large number of cases handed down every year – at present nearly 5,000 constitutional complaints come before the Federal Constitutional Court annually – it is nearly impossible to give a representative summary of the comprehensive case law. Therefore, the report will concentrate on a selection of four decisions that have drawn the most attention over the course of the years 2005 and 2006.
Law and “Law Books” in the Hindu Tradition
Authors: Davis Donald R.
Published: March 2019

It is by now common knowledge that British colonialism in India transformed or invented many Indian institutions and traditions. Questions of how the transformation occurred, of the extent of Indians’ participation in the changes, and of how to measure the scope of the transformation are all still very much in scholarly debate. The area of law has recently become a productive intellectual site for historians interested in describing the transformative effects of colonial governance. Few of these studies, however, are informed by more than a superficial knowledge of classical and medieval legal traditions in India.
Dual Inheritance Theory, Contract Law, and Institutional Change – Towards the Co-evolution of Behavior and Institutions*
Authors: Laing Bart Du
Published: March 2019

The various contributions to this theme issue are likely to have at least two (non-trivial) things in common. First, they aim to contribute to a research project on “Legal certainty for globalized exchange processes” and to the latter's attempts to explain the observed transformation “towards the transnationalization of commercial law, which is understood as a combination of the internationalization and privatization of the responsibility of the state for the production of the normative good of legal certainty for global commerce”. Secondly, they aim to fulfill this task by making use of “evolutionary theory” or, as it was again expressed in the original conference announcement, by dealing with “a theoretical perspective that gives some substance to the meaning of the term “evolution” with regard to law, social organization, and the state”. Since, as I will try to explain shortly, my own particular take on this – it would appear – relatively small set of commonalities involves more specifically the use of contemporary evolutionary approaches to human behavior. I must admit to having been surprised that no one else seemed to have much use for these approaches in their respective takes on the problems that united us in the conference from which this contribution stems. After all, what better use to make of a theory originating from biology than to elucidate the biological underpinnings of our behavior and its underlying psychological mechanisms as they relate to law and legally relevant phenomena? Perhaps some of the reasons for these at first sight, striking differences in opinion on which “evolutionary theory” to make use of, or what meaning to impinge upon the term “evolution” will become clearer in the pages that follow, offering ways in which eventually to combine them. Or perhaps the two things we had in common when we started out will be all there is left to look at in the end.
Extradition, Human Rights, and the Public Order – The “Extradition to India” – Decision of the FCC
Authors: Nickel Rainer
Published: March 2019

The status and range of human rights in international relations is a politically delicate and legally contested topic. In a recent decision the Federal Constitutional Court was forced to concretize the relation between international human rights obligations, domestic constitutional rights laid down in the Grundgesetz and international duties following from extradition contracts between the Federal Republic and other UN member states. More precisely, in the “Extradition to India”-case the FCC had to deal with the crucial question of human rights adjudication: can an accused be handed over to a country where the police force is accused of “using torture as a regular instrument during the interrogation of apprehended persons” and whose correctional institutions are described as “keeping prisoners and detainees in custody under conditions which resemble a cruel, inhuman and humiliating treatment or punishment”?
http://www.CompanyNameSucks.com: The Horizontal Effect of Fundamental Rights on ‘Private Parties’ within Autonomous Internet Law
Authors: Karavas Vaios , Teubner Gunther
Published: March 2019

In previous conflicts about domain names within the global address system, German judges only had to answer relatively simply legal questions. Under which conditions does a domain name, which is easily confused with another name, infringe the rights of the name owner? Pervious decisions have identified infringement in the following cases:

- The name and domain name are, to a significant degree, identical or may be easily confused with one another,

- The user of the domain name possesses no personal right to the name, and

- The name usage is likely to promote mistakes about the origin of the web-site.
Relative Normativity and the Constitutional Dimension of International Law: A Place for Values in the International Legal System?
Authors: Kirchner Stefan
Published: March 2019

While International Law becomes more and more specialized, a tendency towards Fragmentation becomes visible: more and more sub-regimes of International Law emerge, leading to an increased number of rules. With the creation of more sub-regimes, cases are becoming more likely in which more than one sub-regime is involved and the question arises, which sub-regime's rules take precedence. Recent examples for such collisions of regimes include the relation between Free Trade and the Protection of the Environment in theYellowfin-Tuna Casebetween the United States and Mexico which was settled only in January 2002, theTadic-Nicaragua Debateand theSwordfish Casebetween the European Community and Chile, including the need for some form of internal order or hierarchy within International Law.
“While Knowledge Abounds, Skills Are What Counts”: - An Essay About the Attorney of Tomorrow
Authors: Risse Jörg
Published: March 2019

What are the key qualifications for tomorrow's attorney? And how do we have to structure legal education to teach the so-determined qualifications? The answers to both questions seem difficult, if not impossible, since they require a prediction of how the legal market will develop. However, as with most difficult questions, the answers prove to be easier than expected: In this case, they may be embodied in two poems by the German poet Erich Kästner (1899-1974) which are quite meaningful, not only in our regard. The first poem reads:

Wissen ist Macht,

wie schief gedacht,

Wissen ist wenig,

Können ist König.
GM Foods, Risk, Precaution and the Internal Market: Did Both Sides Win the Day in the recent Judgment of the European Court of Justice?
Authors: Dąbrowska Patrycja
Published: March 2019

Almost exactly one year after the famous judgments of the Court of First Instance on the precautionary principle, the European Court of Justice (hereinafter “the Court”) has issued a preliminary ruling further exploring this concept. The ruling arose from a national dispute concerning a temporary ban on novel foods produced from genetically modified organisms (hereinafter “GMOs”). This recentMonsantojudgment is the first case in which the Court has directly invoked the precautionary principle regarding Member States’ power to adopt a provisional prohibition on the marketing of GMO-derived novel foods. Simultaneously, the Court lent an ear to the arguments of Monsanto by declaring the validity of the simplified procedure laid down in the novel foods Regulation 258/97 and based on the contentious concept of substantial equivalence. Thus, it seems to have favoured the free circulation in the Community market of novel foodstuffs notwithstanding the presence of residues of genetically modified (hereinafter “GM”) protein, on the condition that there is no risk to human health.
The German Federal Constitutional Court and the Extradition of Alledged Terrorists to the United States
Authors: Hartwig Matthias
Published: March 2019

In January 2003, two Yemeni citizens were arrested by German police forces at the airport of Frankfurt. The arrest took place pursuant to the request of an American judge of the United States District Court for the Eastern District of New York. The action was considered to be a blow against international terrorism and should have demonstrated the functioning of the German-American cooperation in the war against this scourge. However, due to general considerations as well as the concrete circumstances of the case, the extradition of the two persons took more time than would be expected from a smoothly running cooperation. All legal remedies were exhausted in the Yemenis’ efforts to avoid extradition to the United States, and even now, an individual complaint has been brought before the European Court on Human Rights in Strasbourg. The two Yemeni citizens were finally extradited more than ten months after their arrest in November 2003.
German Sales Law Two Years After the Implementation of Directive 1999/44/EC
Authors: Rott Peter
Published: March 2019

The implementation of Directive 1999/44/EC has turned German sales law on its head, and it has also led to a major reform of the general contract law. Old problems have been solved, and new ones created. Academics and practitioners have commented widely on the reform, and their perceptions range from fundamental opposition to strong enthusiasm. This article attempts to give an impression of the significance of these changes for German sales law, of the most controversially debated issues under the new law and also of the acceptance of the new provisions and of their European origin by academics and by the courts.
Coalition Procurement for the Reconstruction of Iraq in the Crosshairs of WTO Law: The Obligations of the United States under the WTO Government Procurement Agreement
Authors: Pulkowski Dirk
Published: March 2019

Investigating the legality? Ha ha ha! That cracks me up. There is no international law that would prohibit this action by the Defense Department, nor is there any international court that France may appeal to. I of course think that this is the correct decision. Those countries who did not help win the war – who did not pay the price in blood – have no claim to the postwar profits. – Mike, Why I'm Right, Internet Forum

During the Reagan administration, I helped negotiate … the “GATT Government Procurement Code”, later incorporated into the World Trade Organization's legal framework. The U.S. was the primary force behind this legal agreement. It was not motivated by altruism, but out of a belief that all signatory governments … and their respective tax payers would benefit from basing practices on economic factors rather than national favoritism. - Gene Tuttle, in response

Infrastructure in Iraq lies in tatters. Unscrupulous exploitation by Saddam Hussein's dictatorial regime, burdensome economic sanctions and massive destruction during the U.S.-led military operation ‘Iraqi Freedom’ have turned Iraq into one of the world's most destitute countries. On the UN Human Poverty Index for 2003, Iraq ranks seventy-first out of ninety-six developing nations. The reconstruction of basic infrastructure is but one first step towards development and economic growth. Rebuilding Iraq's infrastructure, however, involves substantial economic interests. After all, the cake to be distributed for rebuilding Iraq is expected to exceed $100 billion. Some companies see on the horizon one of the most rewarding business opportunities “undertaken in over 50 years” At the same time, there is a growing suspicion that political or even personal biases of the United States' administration have a bigger role to play than economic reason when it comes to sharing the cake. In December 2003, Deputy Secretary of Defense, Paul Wolfowitz, announced that some of America's trading partners, among them Canada, France, Germany and Russia, would be altogether excluded from competition for major reconstruction projects in Iraq. Public opinion in Europe was quick to brand the United States an international law-breaker. Can one State simply reserve to itself the final word on the Iraqi reconstruction money?
AALS Panel – Global Legal Education – Maximizing the Internationalization of U.S. Students’ Legal Education: Ideas for Making the Most of Your Resources
Authors: D'arcy Maher Jennifer
Published: March 2019

My colleagues on this panel address the need for more internationalization in U.S. law schools and describe some of the difficulties in internationalizing instruction at a law school in a new European Union member state. As they acknowledge, internationalizing legal education can be expensive, competing with other budgetary demands on U.S. law schools. My remarks today will suggest methods to maximize internationalization less expensively, by using existing programs or by setting up new ones more effectively. Although composed for an audience of U.S. law school faculty members and administrators, these remarks, with some adaptation, may be useful for law faculty outside the United States.
AALS Panel – Global Legal Education – Can American Law Schools Respond to the Opportunities?
Authors: Bakken Larry
Published: March 2019

During the past decade many American law schools have identified and responded to the opportunity and necessity of training law students and lawyers for the challenges created by globalization. Opportunities are certainly available to schools with strong business, international trade and human rights programs. Opportunities are, however, also available to schools with interests and strengths in the newer disciplines such as conflict resolution, intellectual property and environment protection. Law schools which have ventured into global oriented training have recognized that the market is not simply a one-way-street for domestic students but also includes training of foreign law students and lawyers. Private foundations in the United States and abroad, foreign governments and our national government have helped finance foreign lawyer visits and training events throughout America. When international lawyers visit the United States, domestic law schools are involved as hosts, training sites, and sources of professional expertise. There has also been a simultaneous movement of domestic lawyers and law students through foreign law school programs and other study abroad opportunities. When all these international experiences are taken together one realizes the need for law schools to become more involved in the development and implementation of training and development of globally oriented legal education.
Liberty, Security, and Terrorism: The Legal Position in Germany
Authors: Lepsius Oliver
Published: March 2019

Just one day after the attacks of September 11, 2001, the German minister of the interior, Otto Schily (SPD), demanded a new security concept. Immediately the existing security laws and precautions were placed under special scrutiny in search for any sorts of deficiencies. The results of these reviews were two legislative initiatives, termed “security packages” or “anti-terror packages,” which changed or altered numerous existing statutes. The new security laws contain a number of infringements into fundamental civil rights and liberties. The legislative process thus had to raise the issue of the relationship between security and civil liberties and weigh the balance between the protection of individual rights and collective security. This, however, does not constitute a new challenge for the German legislature. The collision of security interests with individual civil liberties has caused a legal problem in Germany for some time. September 11 might constitute a political watershed, but in the context of civil liberties in Germany, this date does not represent an important mark. The current measures have to be understood within the context of an at least thirty-year-long period of continuous weighing between security and freedom.
Second-Class Citizens? Restricted Freedom of Movement for Spätaussiedler is Constitutional
Authors: von Koppenfels Amanda Klekowski
Published: March 2019

The right to the freedom of movement for all Germans is one of the nineteen so-called Grundrechte (Fundamental Rights) and is enshrined in Article 11(1) of the German Grundgesetz (Basic Law): “All Germans enjoy freedom of movement throughout the Federal territory.” On 17 March 2004, however, the Bundesverfassungsgericht (Federal Constitutional Court) handed down a decision in which it concluded that the restriction of freedom of movement for one clearly defined group of German citizens is constitutional. Pursuant to the Wohnortzuweisungsgesetz, or Residence Assignment Act, as amended in 1996, Spätaussiedler (ethnic German migrants from the former Soviet Union who are eligible for full citizenship status), may have their freedom of movement restricted during the first three years of their residency in Germany. The restriction on their freedom of movement is triggered if they seek to avail themselves of any of a range of social benefits, including: welfare, some forms of unemployment assistance (Arbeitslosenhilfe), or integration assistance directed at Spätaussiedler, such as a six-month language course. Confronted with the loss of these social benefits, Spätaussiedler who nonetheless choose to exercise their freedom of movement are eligible to receive only a subsistence level of support. This restriction applies, nearly without exception, to all Spätaussiedler for the first three years of their residence in Germany due to the high rate of reliance among Spätaussiedler in their initial years in Germany upon these forms of public assistance.
As Sounding Brass, or a Tinkling Cymbal? Reflections on the Inaugural Conference of the European Society of International Law
Authors: Goodwin Morag , Kemmerer Alexandra
Published: March 2019

The enlargement of the European Union, the attempt to put together a constitution we can all live with, the divisions rendered raw by passionately opposed positions on the prosecution of the so-called “War on Terror” are just some of the issues which make identifying oneself as European so damn confusing of late. The inaugural conference of the European Society of International Law, held at New York University's Villa La Pietra in Florence on 13 – 15 May 2004, saw the question of what precisely Europe is fall to the international lawyers to answer. The process of drafting a European constitution had already provided the constitutionalists with the opportunity to ponder what it is that defines us and, more specifically, distinguishes us from our American cousins; in Florence, the international lawyers had their turn to mull over such questions.
Guaranteeing the Programming Mandate of Public Broadcasters and Restraints on Private Broadcasters’ Programmes in Multimedia Conditions
Authors: Ladeur Karl-Heinz
Published: March 2019

The present German media structures are subject to a fundamental process of self-transformation due to technological as well as societal dynamics. This is especially the case for public service broadcasting. In the post-war era, the public service networks were one of the central intermediary institutions of organized pluralism, serving both the state and society at large. It is not only the growing competition between public and private broadcasters that has led to dramatic changes to the role of public sector broadcasters. The public sector is also being challenged by the rise of the entertainment economy and a shift in focus from public to private affairs. This paper describes the hitherto established role of public service broadcasting and its present crisis. The paper then proposes a proactive legal and political regulatory strategy, which might help find a new role for public broadcasters in a much more fragmented society. The proposed strategy follows the paradigm of proceduralization, which is also prevailing in many other parts of the institutional structures of postmodern society.
Co-ordinated Continental European Market Economies Under Pressure From Globalisation: Germany's “Rhineland capitalism”
Authors: Hoffmann Jürgen
Published: March 2019

[Editors’ Note: The 22 July 2004 acquittals of all six defendants in the criminal proceedings against former Mannesmann CEO, Klaus Esser; Deutsche Bank's CEO (Vorstandssprecher) and then Member of Mannesmann's supervisory board, Josef Ackermann, and other members of Mannesmann's Supervisory Board have, once more, highlighted to German, European and International observers the particular features of law and politics in “Germany Inc.”, “Rhenish Capitalism”, or “Rhineland Capitalism”. As begun in the aftermath of Josef Ackermann's inthronization at the head of Deutsche Bank and Ackermann's subsequent transformation of the Board's control structure, German Law Journal has published several contributions to the ongoing changes in German corporate governance and its embeddedness within the specific German economic and legal system. In his fine piece, Jürgen Hoffmann, Professor of Sociology in Hamburg, surveys the current interdisciplinary debate over the future fate of so-called Rhineland Capitalism and reconstructs Germany's recent history in an international context. In the next issue, to be published on 1 September 2004, Professor Christopher Allen of the University of Georgia will further deepen this inquiry and place the contemporary debate over the possible end of Rhineland capitalism in the historical context of Germany's development in the 20th Century. The Editors of German Law Journal are very pleased and honored to be able to provide for a further forum for this important debate, bringing together lawyers, economists, political scientists and sociologists, for a much needed exploration of the historical and political origins as well as of the legal framework of Germany's much critizised and, at the same time, ardently praised system of corporate governance and industrial relations. We invite our readers to contribute to this debate, which has so far found too little resonance in Germany itself. The Editors.]
Migration, Prostitution and Trafficking in Women: An Overview
Authors: Musacchio Vincenzo
Published: March 2019

Migration linked to trafficking in women and prostitution is one of the darkest features of the lack of equality between women and men. This form of migration has developed into a gigantic, highly organized criminal trade linked to the exploitation of women. The main reasons for female emigration are poverty, discrimination against women, unemployment, under-education, lack of resources, and political and economic instability. Some women are also motivated to leave their country in order to have the opportunity to work abroad and see something of the world. Another reason is that the situation of prostitutes in other countries is sometimes even worse in the countries of origin than in the receiving countries due to their illegal status.
Disability Law in Germany: An Overview of Employment, Education and Access Rights
Authors: Kock Martin
Published: March 2019

Under German law, people with disabilities are entitled to help and assistance in order to avert, eliminate or improve their disability. The general goal is to overcome, as much as possible, the disability's effects and to enable the disabled to participate in all areas of society, especially in the labor market and in community life. The Federal Government is obliged to a barrier-free design and construction of public buildings, streets, etc. and to provide barrier-free access to communication, especially in the field of administrative Internet sites, official forms and notifications. In the area of public transportation, all facilities and means of transportation (bus, train, aircraft) are also required to be barrier-free. The same applies to restaurants.
The American Tradition of Private Law Enforcement
Authors: Carrington Paul D.
Published: March 2019

The first thing for European lawyers to understand about American law is that the distinction between public and private law is in America seldom noticed. American judicial institutions, unlike those in most other countriees, were not designed merely to resolve civil disputes, but were fashioned for the additional purpose of facilitating private enforcement of what in other nations would generally be denoted as public law. This purpose reflects widespread mistrust of the political institutions and government officials upon whom American citizens would have to depend if private law enforcement were not available, as generally it is. That shared mistrust has ancient roots and is reflected in state and federal constitutional provisions assuring the weakness and ineptitude of American political institutions other than courts, and in the habit of Americans, observed in 1835 by the French observer de Tocqueville, to litigate issues they care most about. As a consequence of these conditions, substantial reliance for the regulation of business is placed on private plaintiffs. Much regulation is done ex post the regulated business conduct in the form of civil money judgments rather than ex ante in the form of official approval or disapproval. It is provided by lawyers serving as private attorneys general. Its aim is to keep business executives alert to the risks their business decisions may impose on others.
Globalization and the Law: Deciphering the Message of Transnational Human Rights Litigation
Authors: Zumbansen Peer
Published: March 2019

On 14 October 2004, theBundesverfassungsgericht(BVerfG – German Federal Constitutional Court) voided a decision by theOberlandesgericht(Higher Regional Court) Naumburg, finding a violation of the complainant's rights guaranteed by theGrundgesetz(German Basic Law). The Decision directly addresses both the observation and application of case law from the European Court of Human Rights under the Basic Law's “rule of law provision” in Art. 20.III. While there is a myriad of important aspects with regard to this decision, we may limit ourselves at this point to the introductoryaperçucontained in the holdings of the case. One of them reads as follows:

Zur Bindung an Gesetz und Recht (Art. 20 Abs. 3 GG) gehört die Berücksichtigung der Gewährleistungen der Konvention zum Schutze der Menschenrechte und Grundfreiheiten und der Entscheidungen des Europäischen Gerichtshofs für Menschenrechte im Rahmen methodisch vertretbarer Gesetzesauslegung. Sowohl die fehlende Auseinandersetzung mit einer Entscheidung des Gerichtshofs als auch deren gegen vorrangiges Recht verstoßende schematische “Vollstreckung” können gegen Grundrechte in Verbindung mit dem Rechtsstaatsprinzip verstoßen
Epilogue: in lieu of conclusion
Authors: Hoffmann Florian
Published: March 2019

How could one conclude the preceding collection of texts and create the closure necessary for the recognizability, citability, and, indeed, untouchability of this “Special Section on Derrida” within the German Law Journal? And how could one determine the multiple significations of each and all these texts, and connect them through a single thread? And, finally, how is one to respond to the preceding questions? Do they call for an analytical reflection on the structural indeterminacy of conclusion, or for an ethical reflection on its justice?
Conference Report - Europe's Constitutionalization as an Inspiration for Global Governance? Some Viennese Conference Impressions
Authors: Blanck Kathrin , Hable Angelika , Lechner Ulrike
Published: March 2019

“New Foundations for European and Global Governance? The Achievements of Europe's Constitutionalization.” This was the title of the two-day conference organized by the European Community Studies Association (ECSA) of Austria and the Europainstitut of the University of Economics and Business Administration. The meeting was set in the beautiful atmosphere of the Banqueting Hall of the Bank of Austria building in the centre of Vienna on 29 and 30 November 2004.
Methodological and Substantive Remarks on Myth, Memory and History in the Construction of a European Community
Authors: Stråth Bo
Published: March 2019

Over the last decades, a shift has occurred in the methodology of academic historiography, from an earlier focus on the quality of the sources towards the narrative framework of the history. The point in the new approach is that the sources are interpreted and put together into a narration. In the earlier approach, there was a kind of myopic source criticism, which stopped at the sources and never really questioned the way in which they were put together into a narration. The way in which this composition is made is as biased as the sources on which the narration is based. For this reason, critical scrutiny must move one step forward, instead of halting at the sources. The path-breaking Metahistory by Hayden White in 1973 demonstrated, in a provocative way, the bias in narrative structures. He moved the focus from the sources as such, towards the manner in which they were employed. When the book was published, it was generally rejected and marginalized by the historians’ craft. Today, it is no exaggeration to say that, even if it is not generally recognized, at least it is widely accepted. Metahistory alluded, of course, to metaphysics. White's conclusion was that history is basically ideology. History is not the past per se, nor, as Ranke argued, is it wie es eigentlich gewesen, but a reflection on the past from the present. This methodological shift does not deny the continued importance of a critical approach to the sources and does not reject the existence of events and facts. Methodological rules of how to evaluate sources critically are still valid. The events and the facts based on the events can be documented. No serious historian founding his or her work on sources would deny the fact that, for instance, the Holocaust really did occur.
National Constitutions, Liberal State, Fascist State and the Holocaust in Belgium and Bulgaria
Authors: Fraser David
Published: March 2019

In The Fragility of Goodness: Why Bulgaria's Jews Survived the Holocaust, Tzetvan Todorov offers the following lesson from his study of the “rescue” of Bulgarian Jews from the Nazi killing machine:

“It seems that, once introduced into public life, evil easily perpetuates itself, whereas good is always difficult, rare and fragile. And yet possible.”
Populist Nationalism, Anti-Europeanism, Post-nationalism, and the East-West Distinction
Authors: Blokker Paul
Published: March 2019

In the literature on emergent populism and nationalism in post-communist Eastern Europe, two main assumptions regarding the origins of the phenomenon can be distinguished. One line of argumentation holds that the unexpected resurgence of populism and nationalism after the collapse of the communist regimes is a direct result of the ‘valley of tears’ that characterizes the post-communist transformation from a communist, centrally planned system, to a democratic, market society. The ‘social costs’ of the transition and the still ‘incomplete’ nature of modernization make a large number of ‘modernization losers’ susceptible to mobilization by populist movements. The emergence of populist, nationalist movements should be understood as a radical form of protest against the degradation of the quality of life and widespread social dislocation and unemployment. A second explanation for the phenomenon is that populism and its naturalist, exclusivist portrayal of the nation is the result of the re-emergence of deeply, culturally ingrained perception of social belonging, and of the foundations of the polity, in which the social whole is considered prior to the individual, and in which local culture is valued differently from Western culture. In this explanation, the structural difference between Eastern and Western Europe is emphasized, a difference that can only be overcome by the former adopting the political model of the latter.
Populist Use of Memory and Constitutionalism: Two Comments – II
Authors: Pető Andrea
Published: March 2019

In November of 2003, I received an e-mail from Diana, a 26 year old Hungarian Ph.D.-student of archaeology and Egyptology. She is also interested in gender studies, she wrote me, especially in the cult of female goddesses. She also sent me the article on this topic that she had recently published in the very mainstream Hungarian journal of religious studies, theReview of History of the Church. In this article, she refers to articles published in English, French, German and Italian, quoting sources in Latin and in Ancient Greek. In the e-mail, Diana asked for my help to give suggestions about literature on re-interpreting the role of women in religion because she was familiar with my work on populism, religion and gender. Before the reader starts believing that I am using this very precious occasion to celebrate the developing communication between two generations of female scholars in Hungary, I would like to continue the story with a police report issued on the 23 June in 2004. In this police report, it was announced that, posters announcing a meeting of the so-calledGroup of Hungarian Futurehad been placed on the main boulevard of Budapest Arrow Cross. As is well known, the Arrow Cross was the Hungarian Nazi Party before and during World War II. The Group which is so concerned about the so-called Hungarian Future has 27 members and the founder of this group is Diana.
Defining Europe Against its Past? – Memory Politics and the Sanctions Against Austria in France and Germany
Authors: Seidendorf Stefan
Published: March 2019

It seems by now an established fact that “social identity” implies a construction against an “Other”. This includes the fact that it is much easier to say who “we are not” than “who we are” (and what this means). The fact that “we Europeans” cannot say “who we are” is commonly accepted and blamed as one of the major deficits of the European Union. One possible approach to overcome this deficit might, therefore, be to say “who we are not.”
Law's Past and Europe's Future
Authors: Curran Vivian Grosswald
Published: March 2019

As Europe forges its legal order, constitution, and self-understanding, many appear to believe that identifying and enacting laws and a legal framework that correspond to shared concepts of justice and human rights will solve the problem of legalized barbarism which once plagued Europe and which has been a recurrent feature throughout time and across the globe. The historical propensity of courts, even in democratic states, to legitimate and enable policies of persecution and discrimination provides compelling evidence that the current level of faith in law is misplaced.
Genocidal Politics and Racialization of Intervention: From Rwanda to Darfur and Beyond
Authors: Agbakwa Shedrack C.
Published: March 2019

Last year marked the tenth anniversary of the Rwandan genocide when more than 800,000 people were slaughtered within 100 days under the watch of the international community. As the United Nations has since acknowledged, “[t]he international community did not prevent the genocide, nor did it stop the killing once the genocide had begun.” The whole world failed the victims – a failure the UN Report called a fundamental “failure of the international community [and] failure of the United Nations system as a whole.” Those who could did little or nothing to help. Indeed, some actively concealed or denied the unfolding genocide. Interestingly, the genocide took place more than half a century after the victorious allies of World War II vowed “Never Again!” to genocide in response to the Nazi holocaust. Also, by 1994 the 1948Convention on the Punishment and the Prevention of the Crime of Genocideunder which states assumed a legal duty to prevent and punish the crime of genocide was nearly half a century old.
Comments on the Draft of the New German Private Law Anti-Discrimination Act: Implementing Directives 2000/43/EC and 2004/113/EC in German Private Law
Authors: Stork Florian
Published: March 2019

European Directives impose upon Germany the obligation to incorporate antidiscrimination provisions in its civil law. The anti-discrimination legislation is intended to provide effective civil law remedies against discrimination in everyday life by private persons, e.g. access to housing, restaurants and education. For the purposes of this article, discrimination may generally be defined as any treatment – including a refusal to deal with – by a private party that is less favorable than to another person and is conditioned upon a characteristic such as racial or ethnic origin, sex, etc.
Applying Germany's Market Manipulation Rules to Disruptive Trades on the Eurex and MTS Platforms
Authors: Donald David C.
Published: March 2019

Until recently, cheap fiction and corporate finance most famously met in the creative accounting of companies like WorldCom and Enron. Now, however, both the spoof James Bond, Austin Powers, and the securities regulators of Germany, the United Kingdom, Italy and France face common, twin malevolence:Doctor Evil and Mini Me.These reportedly were the names of a trading strategy devised at the London based European government bond desk of Citigroup Inc. to correct – as reported in theThe Wall Street Journal Europe– what a senior bank executive had referred to as their not “making enough money for the firm.” According to theJournal, “Citigroup wanted to use the futures market to push up prices for bonds traded on the cash market, which tend to follow futures prices. Then they would dump a large amount of bonds in the cash market, reaping profits from their holdings and forcing down prices, to the detriment of other market participants.” At 10:00 am on August 2, 2004, six Citigroup traders launched “Mini Mi” by building up positions in the Eurex futures market, then at 11:29 am they unleashed the “Dr. Evil” trading program, which placed sell orders for various European government bonds, with a total aggregate value of € 83 billion, of which only € 12.4 found buyers; once “the price of the bonds had fallen because of the flood of sell orders, Citigroup bought back € 3.8 billion in bonds … and is estimated to have made around € 15 million in profit.” The spot sales were primarily conducted on the MTS fixed-income trading platform, and constituted 42% of the platform's total value for the day; the traders had cash positions of only about € 8 billion in the securities for which they placed sell orders of up to € 83 billion, which could have left them with a much larger short position than the € 4.4 billion they eventually had.
The European Constitution: Notes on the National Meeting of German Public Law Assistants
Authors: Thym Daniel
Published: March 2019

Each academic culture has its own customs and rituals. In German public law, the annual meeting of public law professors is much more than a conference. Together with their Swiss and Austrian counterparts, German public law professors have met annually since 1922 (with the exception of 1932-48) to discuss contributions carefully prepared and presented by selective speakers, which are meticulously analyzed by their audience. Failure in the eyes of colleagues may ruin an academic career, although participants report that the traditional rigidity has been eased in recent years. Given the prestige and exclusivity of the meeting, it is not surprising that it was copied by Germany's university assistants in public law, who under the German university system often have to wait until the end of their thirties to step out from the shadow of their “academic fathers” and obtain professional independence as professors in their own right. Thus, “young” German public law assistants – in partnership with their Austrian and Swiss counterparts – have also been meeting regularly over the past 45 years to debate various topics of public law and position themselves within the aspiring next generation of public lawyers; and the 2005 meeting in the Westphalian city of Bielefeld signals that the debate on German public law will indeed be enriched by some promising new scholars.
German Labor Law in Transition
Authors: Körner Marita
Published: March 2019

For decades, German labor law has been among the most advanced in the world, although no labor code was ever enacted like, for e.g., in France with its ‘Code du travail’ adopted on 15th November 1973. In Germany, after World War II, German labor legislation developed a great variety of specific Acts covering individual and collective labor law. Basics, like protection against dismissal or collective bargaining, as well as employee participation in works councils, reached a high level. Although German law belongs to the Continental legal systems and thus is mainly based on legislation, some of the most important aspects of collective labor law, especially trade union law and the right to strike are not regulated by statutory law. Bundesarbeitsgericht (the Federal Labor Court) and Bundesverfassungsgericht (the Federal Constitutional Court) filled in the blanks step by step in a variety of decisions. Accordingly, these crucial fields of labor relations are based on mere case law. It turned out to be politically impossible to get trade union law and the law on strike and lock-outs enacted. Despite statements to the contrary, the parties involved seem to be content with this rather flexible handling. On the whole, German labor law became more and more protective over the years, including aspects like equality and prohibition of discrimination in employment, sick-leave payment, and the possibility to claim a part-time job under the 2000 Act on Teilzeit- und Befristungsgesetz – TzBfG (Part Time and Temporary Work).
Giorgio Agamben and the Current State of Affairs in Humanitarian Law and Human Rights Policy
Authors: Heins Volker
Published: March 2019

A number of recent voices in contemporary political and legal philosophy have suggested that something is wrong with international humanitarian relief and human rights advocacy. Such a critique no longer seems to be motivated by ideologies of Social Darwinism or by beliefs in the unconditional primacy of araison d'Étatover the needs and rights of individuals. Rather, it derives from a perspective that sees humanitarian activism as an ill-conceived, often merely compensatory gesture.
The Doctrine of Parliamentary Sovereignty in Comparative Perspective
Authors: Ogorek Markus
Published: March 2019

For the German-trained lawyer, the process of coming to terms with the constitutional law of the United Kingdom can be disconcerting. This disorientation arises principally because the study of constitutional law on the other side of the English Channel seems to lack an appropriate object to deal with. State order in the United Kingdom is not based on a definitive constitutional document created at a particular point in history which would be in any way comparable to the German constitutional document, the Basic Law (Grundgesetz). In spite of this, as Helmut Weber so aptly noted in a talk before the Centre for British Studies of Berlin's Humboldt University, “British textbooks on constitutional law […] are no less numerous and no less comprehensive than German textbooks onVerfassungsrecht”. This observation is not in the least surprising. Even though it may be disputed that a UK constitution exists in the narrower and more common continental European sense of the term, it cannot be denied that the learned discourse forming the body of constitutional scholarship in the United Kingdom is regarded by jurists not only in Europe, but in all corners of the globe, as an important standard for the scholarly examination of their own constitutional systems. This is certainly due in large measure not only to the centuries-old traditions of English constitutional law, but also to its striking intellectual depth and variety.
An Exercise in the Development of International Law: The New ICRC Study on Customary International Humanitarian Law
Authors: MacLaren Malcolm , Schwendimann Felix
Published: March 2019

On 17 March 2005, the President of the International Committee of the Red Cross (ICRC), Jakob Kellenberger, presented a study (hereinafter “the Study”) of customary international humanitarian law (IHL). A decade earlier, the International Conference of the Red Cross and Red Crescent had mandated the ICRC to “prepare […] a report on customary rules of IHL applicable in international [IAC] and non-international armed conflicts [NIAC], and to circulate the report to States and competent international bodies.” The Study's objective was to capture a “photograph” of the existing, hitherto unwritten rules that make up customary IHL. Comprehensive, high-level research into customary IHL followed; the end result of which is undeniably a remarkable feat and a significant contribution to scholarship and debate in this area of international law.