bluuebunny/crossref_metadata_2025 huggingface dataset:
Donations Granted Amongst “Friends” in Public Office— Kindness or Corruption?—There Ain't No Such Thing as a Free Lunch
Authors: Niehaus Holger
Published: March 2019

When former state president C. Wulff stood accused of having received benefits from a film producer known to him for several years, he argued: “Is a politician not entitled to have friends?” Before such background, the question of where to draw the line between social life of a public servant or politician and criminal behavior arises. Are such persons subject to permanent threat of criminal prosecution if they accept invitations etc., or is it their obligation to the general public to refrain from accepting donations from persons who have interests in their decisions, even if these persons are long known friends of the public servant?
Dropping the Other Shoe:Obergefelland the Inevitability of the Constitutional Right to Equal Marriage
Authors: Markard Nora
Published: March 2019

After having invalidated the federal Defense of Marriage Act (DOMA), the U.S. Supreme Court “dropped the other shoe” inObergefell v. Hodgesby declaring the exclusion of same-sex couples from marriage at the state level unconstitutional. Written by Justice Kennedy, the majority opinion heavily relied on the dignity-bestowing character of marriage to show why this exclusion is so harmful. But this strategy comes with a cost: it inflicts a stigma even as it conveys recognition—a drawback that an equality analysis can avoid. Respondents had argued that opening marriage dangerously disconnected marriage from procreation, both the historical reason for and the essence of marriage. In finding that they had failed to provide evidence for the harmful outcomes they described, the majority not only provided the rational basis test with a new kind of “bite.” It also asserted that tradition or religious beliefs were not enough to justify exclusion. Once secular purposes define marriage and rational reasons are required to regulate access, the road to marriage equality opens wide. As the line of cases leading up toObergefellsuggests, and developments in Germany, Austria, and other jurisdictions confirm, equality works as a one-way ratchet—albeit without necessarily including polygamy and incest. Crucially, equality changes the focus: From an equality perspective, the harm lies not in the exclusion from a dignity-conferring institution, but in the suggestion that the excluded group is not worthy of participating in it and does not deserve the recognition and benefits associated with it. Instead of aspiring to achieve dignity through marriage, in this view same-sex couples claim recognition as free and equal citizens. Discrimination on the basis of race, gender, or sexual orientation subsumes an individual under a group category whose purported characteristics are systematically devalued, thus refusing to appreciate a person as an individual. It is this denial of recognition that conveys harm to the dignity of the individual above and beyond the respective disadvantage suffered. Thus taken with equality, dignity does not have the exclusive effect it has in isolation, as struggling against degrading exclusion stresses common traits.
Religious Symbolism and the Resilience of Liberal Constitutionalism: On the Federal German Constitutional Court's Second Head Scarf Decision
Authors: Mahlmann Matthias
Published: March 2019

The second decision of the German Federal Constitutional Court on the Islamic headscarf declares a general ban on headscarf to be unconstitutional and, in particular, a violation of freedom of religion. This case note examines whether this decision is an ill-conceived weakening of a religiously neutral state or, to the contrary, an encouraging manifestation of a liberal constitutional order that takes its aspirations in a highly contested area of law seriously.
The Euro Is Irreversible! … Or is it?: On OMT, Austerity and the Threat of “Grexit”
Authors: Wilkinson Michael A.
Published: March 2019

The promise of the ECB to act effectively as the Eurozone's ‘lender of last resort’ was widely praised as a central plank in a broader strategy to protect the Euro and avoid financial meltdown in its Member States. “Never has so much effect been gained by doing so little. Words alone, it seemed, calmed the markets. …” The OMT program appeared as a “watershed” in the Eurozone crisis, “one of the most effective announcements any central bank has ever made.”
Book Review- Victor Kattan's From Coexistence to Conquest: International Law and the Origins of the Arab-Israeli Conflict 1891-1949 (2009)
Authors: Xavier Sujith
Published: March 2019

Victor Kattan's “From Coexistence to Conquest: International Law and the Origins of the Arab-Israeli Conflict, 1891–1949” is an archival excavation of the Israeli-Palestinian (Arab-Israeli) conflict and its origins. This review will examine the contours of Kattan's book followed by a brief examination of objectivity in academic scholarship often enunciated through the concept of ‘balance’ as it relates to those scholars (like Kattan) working on the conflict. Finally, this review will explore some of the weakness of the arguments that Kattan advances.
Legal Education in Ireland: A Paradigm Shift to the Practical?
Authors: Paris Marie-Luce , Donnelly Lawrence
Published: March 2019

Irish legal education is under increasing pressure to reform and reinvent itself in the face of various challenges, especially those implied by the Bologna process. In line with two of the main priorities of the process, namely employability and student-centred learning, a growing number of Irish law faculties have incorporated, or are planning to incorporate, more practice-related components into the law curriculum and, in some cases, a fully fledged Clinical Legal Education programme. This is an important shift in the paradigm of legal education in Ireland which should be welcomed and encouraged by all stakeholders – students, academics, practitioners, judges and those involved in myriad capacities in the administration of justice.

In the first part, a comprehensive presentation is given about the general structure of legal education in Ireland dealing with the main legal education providers, academic and professional requirements for legal training, as well as figures on the legal population and the approximate cost of legal education. The second part goes on to consider three views about the role of practice in Irish legal education, namely the ‘traditional’ view, the ‘holistic’ view and the ‘clinical’ view. These schematically presented views reflect different perspectives on the nature and purpose of legal education. They do not necessarily compete with each other, especially the last two which could arguably complement one another in the general renewal that Irish legal education is facing at the moment. The traditional view is that the status quo, i.e., in which practical elements are not a big feature of legal education at third level, has worked well and should, more or less, be preserved. The holistic view encourages the teaching of some element of practical preparation, but that this can best be provided to students by third level institutions through interdisciplinary courses that put law in context. The view which favours clinical legal education is that more can, and indeed should, be done to enhance the preparation of students for law practice, although it has to be pondered in light of economic realities, competing views about pedagogy and the Bologna context.
Case Note- Judgment of theLandgericht Frankfurt (Oder)(Regional Court) of 22 June 2010: Hotelier's Right to Ban Persons from Hotel Premises
Authors: Mulder Jule , Gideon Andrea
Published: March 2019

On 22 June 2010, theLandgericht Frankfurt (Oder)(Regional Court) ruled on whether a hotel was entitled to deny a member of a nationalist party entrance to its establishment because of the individual's political beliefs or whether such discriminatory conduct constituted an illegal violation of the personality right of that person which would constitute a tort under § 823 of theBürgerliches Gesetzbuch(German Civil Code, “BGB”). In making its decision, the Court balanced a property owner's freedom of autonomy, specifically the owner's right to ban a customer from his or her establishment, against the customer's personal rights. Furthermore, the Court considered whether a hotel owner's decision to ban a customer based on his or her political beliefs violated theAllgemeines Gleichbehandlungsgesetz(General Equal Treatment Law, “AGG”). Considering the fundamental question of balancing competing interests, of the personal right of the customer and the right of the property owner, and the national public debate concerning the right of members of nationalistic parties to be treated equally, the case goes beyond the interests of the parties involved and is of general importance.
The G8 Summit in Germany, the Bundeswehr and the German Bundestag
Authors: Wiefelspütz Dieter
Published: March 2019

From 6–8 June 2007, the summit meeting of the Group of Eight (G8) leading industrialized nations was held in Heiligendamm, Mecklenburg-Western Pomerania, under Germany's presidency. In advance of the summit, the federal state (Land) Mecklenburg-Western Pomerania and the federal authorities agreed that the task of providing adequate security for the Summit would overstretch Mecklenburg-Western Pomerania's capacities unless assistance were provided by the Federal Government and other federal states.
Copyright Licensing Revisited
Authors: Janssen Astrid
Published: March 2019

On 29 September 2008, the United Kingdom High Court of Justice referred to the European Court of Justice of the European Union (ECJ) for a preliminary ruling inKaren Murphy v. Media Protection Services Limited. This referral concerned the use of foreign decoder cards in the United Kingdom in order to gain access to encrypted satellite transmissions of live English Premier League football matches. Karen Murphy, a pub owner in Southsea, had allegedly been using the much cheaper Greek satellite decoder card to receive and screen live Premier League matches in public.
Privacy: Back to the Roots
Authors: Buitelaar J.C.
Published: March 2019

Phenomena such as cloud computing, but also ambient technology, chain informatization, and social networking sites put into question the continuing applicability and relevance of existing legal frameworks, in particular the European Data Protection Directive (henceforth the DPD or the Directive), which dates back to 1995. Its framework of assigning roles of controller and processor appears to stand up no longer. It can be argued that it does not help any more in assigning responsibility for the processing of personal data. By a strict application of the DPD, the data subject can even be construed as playing the role of controller. Not only does the functioning of the principles of the roles need a reconsideration, but other essential principles, such as that of purpose-binding, require it, as well. For example, because data, which in a social networking context are disclosed to friends, are also used for targeted advertising and tailoring services, etc., the purpose-binding called for by the DPD becomes, at the very least, opaque. Furthermore, assigning responsibility to the actual processor in charge is just as unclear. Therefore, these current phenomena make clear that the conceptual foundations of the legislative frameworks, which purport to facilitate and protect privacy, require reflection.
Corporate Participation in the Democratic Process in the United States and Germany
Authors: Weber Sabine
Published: March 2019

There are many factors that influence political elections, among them, money may be the most important one. The starting point of this Article is the judgment of the U.S. Supreme Court inCitizens United v. Federal Election Commission. After this decision is described, the approaches of the United States and Germany in regulating political speech by campaign finance laws will be discussed, focusing on the role of companies. This Article will outline the status quo of federal American campaign finance laws (Part B). Regarding the German approach, this Article will outline theParteiengesetz(Political Parties Act, hereinafter: Part G) and decisions of theBundesverfassungsgericht(Constitutional Court, hereinafter: BVerfG) (Part C). European regulations are not the subject of this Article. Both approaches will be compared and future prospects will be given as a conclusion (Part D).
Self-Interest and the Common Good in Elections and Referenda
Authors: Hartmann Bernd J.
Published: March 2019

This article examines the standard of decision-making that applies to voters. Are they free to follow their personal interests or are they bound to make decisions most beneficial to the common good? This question is answered not only for elections,i.e., for people choosing their representatives and for parliament itself appointing officials. Furthermore, the treatise extends to other votes as well, as it covers not only referenda as the paradigmatic means of lawmaking by the people, but also parliamentarian legislation.
Alec Stone Sweet's “JuridicalCoup d'État” Revisited:Coups d'État, Revolutions,Grenzorgane, and Constituent Power
Authors: Schilling Theodor
Published: March 2019

With his “highly suggestive,” “thought-provoking” paper,The Juridical Coup d'État and the Problem of Authority, Stone Sweet initiated an ongoing debate. The paper was the object of immediate comments by three eminent legal scholars and of a response to them by Stone Sweet. Most recently, Corrias has developed on its basis a theory of constituent power now. The present article will mostly deal with those aspects of Stone Sweet's paper on which Corrias has relied.
Judicial Accountability and Public Liability—The German “Judges Privilege” Under the Influence of European and International Law
Authors: Terhechte Jörg Philipp
Published: March 2019

The emergence of an independent judiciary and the associated consistent implementation of the separation of powers principle are major achievements of modern times and important characteristics of the transition to the rule of law. Against this background, any attempt at reforming the independence, control structure or liability of the judiciary must be viewed critically, because reform efforts in this area often constitute modifications to the deep layers of a legal and political system. These changes are ultimately not easy to survey and the results are difficult to control. Consequently, those who seek to touch upon the liability of judges enter a rough and sometimes even downright hostile terrain. Does such liability not inevitably lead to an impairment of judicial independence, therefore damaging the “last bulwark against the erosion of law?” Does it even perforate the traditional system of the separation of powers? Will not a circulus vitiosus in the sense of a never-ending flood of cases be created if after any legal proceedings the question of judicial liability remains to be asked (or even, from the lawyer's perspective, has to be asked to avoid recourse)? These questions can take on an even more dramatic tone and show that the area is to be treaded on lightly. Therefore, important clarifications have to be made in advance in order to put the following observations into perspective: The German judicial system is not at all a bad judicial system-the opposite is true. In a global comparison, the German system is easily able to compete with any other system in terms of speed of proceedings, judicial facilities and reputation of the courts. So then why even be concerned at all with state liability for judicial wrongs?
EU Legislation on Driving Licences: Does It Accelerate or Slow Down the Free Movement of Persons?
Authors: Szydło Marek
Published: March 2019

Driving licences, understood as an official authorisation issued by a State permitting a person to drive power-driven vehicles, belongs to those kinds of legal documents that can potentially significantly facilitate and enhance the free movement of persons (EU citizens) between Member States. Provided that a driving licence is duly recognized by Member States other than the State issuing the licence, the holder of the licence can move to those other Member States using his/her individual means of transport, and is entitled to use power-driven vehicles there while pursuing a large number of occupations as an employed or self-employed person. Thus, a driving licence duly recognized by the host Member State enables its holder to move, work, or conduct an economic activity there more effectively and gives the holder some additional options in that regard. Moreover, the driving licence recognized by the host Member State may be used by its holder while there to prove his/her identity and nationality as a Union citizen, and, consequently, it may serve as an equivalent of a passport or identity card. This is important insofar as the requirement to hold those latter documents (or their equivalents) is a formal prerequisite under the relevant EU legislation for Union citizens exercising their rights to enter and to reside in other Member States. The practical importance of driving licences and of the legislation concerning those issues in the EU, especially in the context of free movement of persons, is additionally reinforced by the fact that a valid driving licence is held by an estimated 60% of the Union's population, which means 300 million citizens. The EU and national legislation on driving licences has an undisputed direct impact on their lives.
The Strategies of Rupture in International Law: The Retrenchment of Conservative Politics and the Emancipatory Potential of the Impossible
Authors: Haskell John D.
Published: March 2019

The concept of rupture straddles the space between revolution and reform, anarchy and order—a paradoxical term to demarcate, on the one hand, the possibility of a complete falling away of one systematization, without necessarily initiating some new regime, and on the other hand, the conditions of improvement and renewal, an opportunity of reassessment, and quite often re-entrenchment. Thus, rupture is not necessarily the same as speaking about revolution, or even emancipation for that matter, because it does not necessitate any giving up of a certain system of ideas or authority, at least not in any longstanding sense. To put it bluntly, it is neither progressive nor reactionary, but in some sense, perhaps best understood, and I will expand on this shortly, as simply the very conditions of establishing and/or maintaining any symbolic order (by which I mean the albeit uneasy synthesis of political, social, economic, religious relationships that constitute what ends up getting called a ‘system’ or ‘order'). Rupture is a strategy, in other words, of both understanding and political action, but which itself carries no necessary affiliation with any ideological disposition. We might say, therefore, to speak of rupture is to enlist a set of concerns, disagreements, traditions, ideas, and so on, that are useful when attempting not just to describe a situation, but to move towards some political decision as a group, though what exactly that would be is open to contestation.
Global “Harmonious Society” and the Law: China's Legal Vision in Perspective
Authors: Choukroune Leïla
Published: March 2019

“A harmonious society needs a stronger legal system that wields greater authority.”

“He,” the Chinese character for harmony, is now in everyone's mind when thinking about contemporary China. Harmony and other ‘Confucian values’ seem to have penetrated all spheres of Chinese society, from the Communist Party's elite to business leaders and academics. But Confucius is both used and abused: quoting the philosopher at the start of the Olympic Games Opening Ceremony in a kitsch historical extravaganza featuring 3,000 men dressed up as his disciples does not clarify the true political meaning of an increasingly ideologically eclectic regime. On the contrary, it leads, to borrow Claude Lefort's term, to further “complications.” Thus, the interest in the idea of a ‘socialist harmonious society’ stems less from what it holds aloft than from what it hides.
The Untenable Situation of German Criminal Law: Against Quantitative Overloading, Qualitative Overcharging, and the Overexpansion of Criminal Justice
Authors: Krey Volker , Windgätter Oliver
Published: March 2019

It is a well-established fact that German criminal trial courts are unacceptably and unreasonably overloaded. The German Federal Constitutional Court—Bundesverfassungsgericht, BVerfG—and the Federal Supreme Court of Justice—Bundesgerichtshof, BGH—frankly admit this fact. Even those legal scholars who are critical towards trial courts emphasize such overloading. This overloading is aggravated in the context of austerity measures, which seem to be based on a system that can briefly be described as follows: In principle, the BGH is not, if ever then only slightly, affected, and the State Courts of Appeals—Oberlandesgerichte, OLG—are not affected in an extensive manner. In contrast, the trial courts fare differently: The Higher District Courts —Landgerichte, LG—are typically severely affected by such austerity measures, while the Lower District Courts —Amtsgerichte, AG—are affected brutally. Pursuant to the authors’ view, this practice demonstrates an evident disregard for the trial courts, despite the fact that their speedy as well as convincing settlement of criminal cases is of the utmost importance for the law in action and a constitutive element of criminal proceedings under the rule of law. Hence, the guarantee of an effective criminal justice system —Gewährleistung einer effektiven Strafrechtspflege—is rightly recognized as a fundamental element of the rule of law.
Considerations on Protocol N°16: Can the New Advisory Competence of the European Court of Human Rights Breathe New Life into the European Convention on Human Rights?
Authors: Giannopoulos Christos
Published: March 2019

Protocol n°16 expands the advisory jurisdiction of the European Court of Human Rights (hereinafter ECtHR) by introducing a mechanism of litigation-related opinions (“avis contentieux”). It affords the highest national courts and tribunals the ability to ask the ECtHR for an advisory opinion on questions of principle related to the interpretation and application of the rights and freedoms defined in the European Convention on Human Rights (hereinafter Convention) and the Protocols thereto.
Ukraine, International Law, and the Political Economy of Self-Determination
Authors: Özsu Umut
Published: March 2019

This article attempts to destabilize the assumption that self-determination can be restricted to a “purely legal” analysis of the sort to which most international legal scholars have conventionally confined themselves. It does so by focusing upon the conditions under which the legal rhetoric of collective self-determination came to be mobilized during the course of Russia's incursion into and subsequent annexation of Crimea in early 2014, as well as its ongoing deployment in the context of Russia's political, military, and financial support for self-declared “people's republics” in Donetsk and Luhansk. After briefly examining legal arguments in support of and in opposition to Russia's actions, the article argues that the Ukraine crisis problematizes the traditional reluctance of international lawyers to engage with the complex, and often counterintuitive, articulations of self-determination offered by participants in armed conflict. Recourse to self-determination cannot be understood without appreciating the concrete politico-economic pressures in response to which states are created and recreated. The alternately “lofty” and “cynical” formulations of self-determination that have characterized the ongoing struggle in and over Ukraine can only be understood in light of protracted competition between rival class projects that generate significantly different visions of world order. This compels us to confront the class dimensions of the concept of collective self-determination rather than continuing to conceive it as a purely national, or ethno-national, project of recognition or emancipation.
Beyond the Forms of Faith:Pacta Sunt Servandaand Loyalty
Authors: Davison-Vecchione Daniel
Published: March 2019

The need to fulfil treaty obligations in good faith bases both the principle ofpacta sunt servandaunder Article 26 of the Vienna Convention on the Law of Treaties and the principle of loyalty under Article 4(3) of the Treaty on European Union. This article seeks to understand the precise relationship between the two principles. It argues that the principles are different embodiments of the same root concept. In particular, it argues that loyalty is a more sophisticated and specific version of the concept, since it establishes that the relevant states and institutions must take account of each other's efforts to fulfill their obligations faithfully. While the Court of Justice of the European Union has observed the consequent need for greater flexibility when determining Member State liability, it has not done so consistently, especially in the context of EU external relations. Lastly, this article proposes that the presented conceptualization of loyalty andpacta sunt servandacould help us understand how other international subsystems might develop the basic concepts in general international law.
The Relationship Between the Court of Justice of the European Union and the European Court of Human Rights in the View of the Accession
Authors: Cherubini Francesco
Published: March 2019

The jurisdictional control systems (or, to be more accurate, the quasi-jurisdictional control systems) created within the European Convention on Human Rights (ECHR) and the European Union (EU) considerably differ one from each other, besides reflecting the different origin of the treaties in which they have been fashioned; the first, in fact, is a “third system” with respect to States Parties, a system whose unique competence is the subsidiary protection of fundamental rights; the second is instead in charge of safeguarding the uniform implementation and interpretation of norms being mainly targeted at the creation of an Area of Freedom, Security and Justice, developed from the original idea of a “common market” envisaged in the 1957 Treaty of Rome.
The Supreme Court of the United Kingdom and Preliminary References to the European Court of Justice: An Opencast Constitutional Lab
Authors: Fusco Alessia
Published: March 2019

At the start of his paperKeeping Their Heads Above Water? European Law in the House of Lords, Anthony Arnull reports a judgment delivered by Lord Denning in 1979, in the early days of the process of the United Kingdom's European integration. It stated as follows:

[The] flowing tide of the Community law is coming in fast. It has not stopped at high-water mark. It has broken the dykes and the banks. It has submerged the surrounding land. So much that we have to learn to become amphibious if we wish to keep our heads above water.

Lord Denning made a similar remark in his judgment in Bulmer v. Bollinger, which was a pivotal case in the dialogue between the United Kingdom (UK) and European systems.
Reading the Tea Leaves: The Polish Constitutional Tribunal and the Preliminary Ruling Procedure
Authors: Kustra Aleksandra
Published: March 2019

The main purpose of the preliminary ruling procedure is to prevent divergences in judicial decisions applying European Union (EU) law and to ensure the uniform interpretation of EU legal provisions across Member States. The procedure, introduced in the Founding Treaties, has provided a platform for the Court of Justice of the European Union (hereafter, the ECJ or the CJEU) to deliver seminal judgments that have progressively defined the relationship between national and EU legal systems, among others. The procedure has also helped the ECJ to develop fundamental principles of EU law, including direct effect, indirect effect (i.e., the interpretation of national law in line with directives) and primacy. Being one of the most important aspects of the EU judicial system, the procedure provided by Article 267 of the Treaty on the Functioning of the European Union (hereafter, TFEU) has had an immense impact on the harmonious development of EU law and the way in which national courts and EU courts interact and communicate.
On the German History of Method in Civil Law in Five Systems
Authors: Haferkamp Hans-Peter
Published: March 2019

Germany is the country of legal methodology. No other country saw such an intense academic discourse on the question of what jurists are able, allowed, and supposed to do when interpreting and applying the law. This German peculiarity is tightly linked to the history of the German Civil Code (BGB). Carefully worded and systematically precise, this codification had the potential to significantly limit judicial freedom; thus, its advent marked the beginning of the German methodological debates. The following Article examines this relationship, starting with the year 1874 (when preliminary work on the Civil Code began) and continuing with an analysis of the five political systems during which the BGB was in force: the German Empire (1900–1914), the Weimar Republic (1918–1933), the National Socialist period (1933–1945), the GDR (1949–1989), and the Federal Republic (1949–today). With the exception of the GDR, the methodological debates consistently show attempts to enable judges to adapt the law to real life conditions, or to political ideas in conflict with the BGB, without formally moving beyond extant law. At the roots of 20thcentury methodological debates, one can thus discern a profound mistrust of German legal academia with regard to both the legislature and the judiciary. Jurists had no confidence in the BGB, which was criticized for being inflexible, outdated, and politically unsound. They did not trust in the freedom of judges either, trying instead to somehow bind them, be it to “life,” “reality,” “justice,” “sense of justice,” “national order,” or “Christian Natural Law.” It was not until 1958 that the Federal Constitutional Court was entrusted with the task of dynamically shaping the guiding values of society, thus forcing both the legislator and the courts to adapt the BGB to these principles. As a consequence, the heyday of German methodological debates surrounding the BGB slowly came to an end.
The Refugee Crisis and the Executive: On the Limits of Administrative Discretion in the Common European Asylum System
Authors: Wendel Mattias
Published: March 2019

While the Dublin System was meant to create a clear and fair division of responsibilities for the examination of applications for international protection, the recent refugee crisis highlighted the extent to which normative aspirations and political realities can diverge. That said, the Dublin System does allow for a certain degree of flexibility: By exercising the discretionary right to assume responsibility under the so-called “sovereignty clause” of Article 17, paragraph 1 of the Dublin III Regulation, Member States can examine asylum applications even when they would not formally have jurisdiction for doing so according to the criteria established by the Dublin System. Germany has relied upon this right extensively during the refugee crisis. Against this backdrop, the following contribution analyzes the reasons for, and limits of, multilevel administrative discretion in the Common European Asylum System. It argues that when a Member State exercises the right to assume responsibility in a sweeping manner, i.e. in hundreds of thousands of cases, it runs the risk of overstretching the legal limits of its discretionary powers. National administrative bodies can only invoke the right to assume responsibility insofar as this does not amount to game-changing decisions by the executive or unilateral decision-making without transnational coordination – particularly when such decisions have severe transnational consequences.
Legalism at a Dead End or the (Br)Exit of Politics
Authors: Hoffmann Florian
Published: March 2019

Back in 2007, the year during which, alongside others, Romania and Bulgaria joined the European Union (in January) and the world financial crisis began with the French global investment bank BNP Paribas terminating withdrawals from several sub-prime loaded hedge funds (in August), Perry Anderson concluded aLondon Review of Booksessay entitled, “Depicting Europe,” with words that today must be seen as prophetic: “the long-run outcome of [European] integration remains unforeseeable to all parties. Even without shocks, many a zigzag has marked its path. With them, who knows what further mutations might occur.” The narrow but decisive vote by the UK electorate on June 23 to “take their country back” represents just the latest, and arguably biggest, shock in what can only be described as a decade of seismic activity for the European project. Indeed, it is hard to believe in post-Brexit 2016 that only a little more than a decade ago, in 2004, Jeremy Rifkin could proclaim the “European Dream […] a beacon of light in a troubled world,” beckoning, as it were, “a new age of inclusivity, diversity, quality of life, deep play, sustainability, universal human rights, the rights of nature, and peace on Earth.” Such lofty words must sound no less than ludicrous to the sober and cynical minds of contemporary Europeans who see seemingly entrenched post-War realities, many having to do with European integration, assailed head on. What makes this (again seemingly) dramatic change yet harder to digest is, of course, the fact that much of the damage is self-inflicted. It is decidedly not the same as some external oil-price shock to which an otherwise well-governed and self-conscious incipient political community has suddenly been exposed. Instead, the Brexit vote symbolizes more starkly than anything else the deep crisis that has been building up within the European project for a much longer time than its proponents would wish to admit.
Post-Brexit Global Trade Relations: The Death of TTIP?
Authors: Lyons-Archambault Amanda
Published: March 2019

Prior to Britain's popular referendum on whether to remain a member of the European Union, parts of the public in Britain and other European states had already expressed a great range of emotions concerning on-going negotations between the European Union and the United States regarding the bi-lateral Transatlantic Trade and Investment Partnership, more commonly referred to as “TTIP.” In February 2013, the European Commission optimistically projected that TTIP “would be the biggest bilateral trade-deal ever negotiated,” with the potential to “add 0.5% to the EU's annual economic output.” Most notably, TTIP seeks to streamline administrative rules and technical product standards in order to remove trade barriers, and aims to “achieve ambitious outcomes” across three broader areas—(a) market access, (b) regulatory issues and non-tariff barriers, and (c) rules, principles, and new modes of cooperation to address shared global trade challenges and opportunities.
Is Free Movement of Workers a Fundamental Right or Merely the Price for Full Access to the Internal Market of the E.U.?
Authors: McCauliff Catherine M. A.
Published: March 2019

Factortame (Case C-213/89 [1990] ECR I-2433, starting in 1988, ff.) was the case that Eurosceptics felt doomed UK parliamentary sovereignty. Factortame said that, having committed itself to the treaty, a Member State could not then contradict the treaty with contrary domestic action. Specifically, no discrimination against nationality (now TFEU Art. 18) has been permitted since the beginning. Nevertheless, parliament amended the Merchant Shipping Act in 1988 to prevent Spanish fishermen from catching fish in UK waters by requiring, for example, that 75% of the shares in a fishing enterprise must owned by people domiciled and residing in UK. The diehards never accepted that parliament had to exercise its authority within the framework established by the treaty.
Brexit. Or, Is the European Union Educable?
Authors: Miller Russell A.
Published: March 2019

In an essay from 1998 the comparative law scholar Pierre Legrand asked the question “are civilians educable?” It was a theme that had preoccupied him for some years as he agonized over what he regarded as the intolerant, totalizing, and normalizing manner in which civilian legal systems and their acolytes encounter other legal traditions. He had documented, for example, the ways in which Quebec's new 1994 Civil Code constructively sought to suppress and exclude the significant and historically relevant Anglophone community in Quebec. Legrand argued that this domineering posture is a product of the civil law's cosmological and autarkic mentality. “The difficulty,” Legrand lamented, “is that the civil law mind … is reflexively imperialistic … because of its penchant for universalization.” Far more than his disquiet over the precarious future of Quebec's Anglophone community, Legrand came to be concerned about the fate of the English common law tradition in the face of the European Union's convergence agenda. This was, to Legrand's mind, an apocalyptic confrontation between England's still-proud legal culture and Europe's horsemen of convergence: the ECJ, the Commission, the Parliament. With increasing distress Legrand turned his attention to the way in which the European Community (and later the Union) “is liable to achieve … the marginalization of one of the subcultures that have defined western Europe historically.” He would go on to insist that “European legal systems are not converging” and to raise ever-more strident objections to the idea of a European civil code. This would not cease until Legrand had written “Antivonbar,” an incendiary manifesto aimed at salvaging the English common law from what he viewed as the Union's closed-fisted and violent politics of supremacy, which had taken the form of the proposed European Civil Code.
Brexiting European Citizenship through the Voice of Others
Authors: Strumia Francesca
Published: March 2019

The British vote on 23rdJune, opting by a rather slim majority to leave the European Union, has sent waves of uncertainty rippling through the island and the continent, as well as through some milestones of European integration. One of these is European citizenship. Paradoxically, it receives a hard shake at the hand of national citizenships, exercised through a referendum.
Freedom of Speech for Public Officials vs. the Political Parties' Right to Equal Opportunity: The German Constitutional Court's Recent Rulings Involving the NPD and the AfD
Authors: Kliegel Thomas
Published: March 2019

Public Officials are bound by the fundamental rights when they are acting in their political function. Acting as such they cannot, in general, claim the freedom of speech for themselves as normal citizens do. If they give statements regarding other political parties they have to abide by the principle of neutrality. Statements that could be understood as negative will be — especially if they are made during the election process — a violation of the right of political parties to equal opportunity, which is an indispensable element of the free and open process of forming popular opinion. The delineation of whether a public official is appearing as such, as a “party politician” or “private individual” can, however, be difficult and it is the obligation of the public official to leave no doubt about the role he is exercising. Different from any other public official the Federal President needs not comply with the principle of neutrality. He has a broad margin of assessment and only transgresses his legal boundaries if he violates the integrative task of his office in an arbitrary manner.
Law as Culture? Culturalist Perspectives in Legal Theory and Theory of Methods
Authors: Reimer Franz
Published: March 2019

This Article questions in what sense law in the German tradition has been—and can still be—considered a form of culture. The Article offers an overview of traditional approaches to law and culture in German Legal Theory and the Theory of Methods, and argues that the law has shifted from being perceived as culture during the nineteenth and early twentieth centuries to being in contrast with culture, which is considered the “other” of the law. Mediated by “legal culture,” the discourse pendulum has swung back to the notion of “Law as Culture” during the last three decades. Thomas Gutmann, the German lawyer, has fiercely challenged equating law with culture, describing it as “murky” and irrelevant. Similarly, the concept of “Law as Culture” is questioned by the provocations of “Law and Affect.” This Article claims that, irrespective of conceptual framework trends, applying the law remains a highly challenging cultural practice in terms of both fact-finding and interpreting legal norms.
The Perplexity of Judges Becomes the Scholar's Opportunity
Authors: Gaakeer Jeanne
Published: March 2019

Benjamin Cardozo, a great promoter of the concept of the unity of form and content in law and literature, once wrote that “[t]he perplexity of judges becomes the scholar's opportunity.” Cardozo's observation prompts my contribution on narratives in the law to this special issue on pluralities in the law because of the interrelation between law in academic theory and law in practice. My experience as a judge and an academic working in both the fields of law and literature, and law and humanities, allows me to provide a unique point of view. This Article argues the following: First, “to narrate is already to explain” as Paul Ricoeur wrote; the way in which the facts of a case are narrated largely determines the outcome of that case, therefore jurists need to develop and cherish narrative knowledge. Second, jurists should be imaginative about both the law and the people whose fates they determine when they use language to translate brute facts into the reality of the legal narrative. Third, this Article investigates and critically responds to literary theorists' various views on narrative and narratology, explaining which elements can be fruitfully incorporated into a legal narratology. I argue that jurists, while acting as authors and readers of legal narratives, all too often disregard what literary theory and the humanities more generally have to offer to legal practice, which is to highlight points of misunderstanding in our interdisciplinary literary-legal discussions. Here, too, scholarly opportunities remain to be seized for further clarification and theoretical elaboration of the bond of law and narrative.
In the Force Field of the Law: On Affect and Connectivity in the Casework of Forensic Architecture
Authors: Hentschel Christine , Krasmann Susanne
Published: March 2019

Law needs a force; without its force, it would be nothing. This article proposes a conceptualization of the force of law as affective by examining the political aesthetics of “Forensic Architecture,” a project based at Goldsmiths, University of London. The novelty of Forensic Architecture's analytical approach arises, on the one hand, from its use of technologies of power that are otherwise employed by states and their military forces—thus reversing the direction of the surveillant gaze towards a disobedient practice of seeing and sensing. On the other hand, the notion of a “force field” operates as a particular critique of European border policy. The force of law appears to merge into, and at the same time emerge out of, a complex arrangement of technological devices, legal regulations, and human actions. This essay re-traces the political aesthetics of the “left-to-die-boat” case, where a boat filled with migrants was left without any assistance despite the legal regulation that obliges obliging seafarers to rescue anyone in distress in the Mediterranean Sea. Forensic Architecture's case-work unsettles human-centered “norms of representation” typically used in critical writings on the European Union (EU) border regime; instead, the law is demonstrated to be enfolded within an affective force field that operates with “touch” and “connectivity” and that allows us to see and sense the law in a newly pluralistic manner.
Network Analysis and the Use of Precedent in the Case Law of the CJEU – A Reply to Derlén and Lindholm
Authors: Frankenreiter Jens
Published: March 2019

During the last decades, social network analysis has been established as a key technique in a number of disciplines in social science. Its main promise is that it provides tools for researchers to take into account the social context of individual entities or actors. Legal scholars, by contrast, have only recently started to make use of these tools. Nowadays, one particularly prominent application is the use of network analysis to analyze the citation networks of different national and international courts. The contribution by Derlén and Lindholm published in this issue of theGerman Law Journalforms part of this trend. It is the latest in a series of papers studying citations in the case law of the Court of Justice of the European Union (CJEU). Unlike the authors' previous contributions, the paper specifically addresses the use of precedent by the CJEU and assesses the merits of criticism in the literature arguing that the citation practice of the CJEU lacks an acceptable method. The paper provides novel insights into the use of precedent by the CJEU and thus makes an interesting contribution to the emerging scholarship investigating the decision-making of the CJEU by means of quantitative analysis. At the same time, the design of the research raises severe doubts about whether the authors succeed in providing a conclusive response to the critics of the CJEU's citation practice.
How Much Veil Is Too Much Veil: On the Constitutionality and Advisability of Face Veil Bans for German Public School Students
Authors: Braun Kerstin
Published: March 2019

With increasing cultural and religious diversity in Germany, a debate has emerged over the extent and limits of religious freedom in day-to-day life. While much controversy arose over whether public school teachers have the right to wear Islamic head coverings, students as private individuals are free to wear a headscarf at school if they wish. Yet, recent school and administrative court decisions suggest that the situation is different for students who wear niqab and Islamic face veils rather than just head veils. This Article contemplates whether niqab-wearing students can be expelled from public school under current German law. In addition, this Article addresses the constitutionality of law reform in this area especially considering the European Court of Human Rights' jurisprudence in the French context. The Article subsequently contemplates the advisability of such law reform while also drawing on the experiences of countries which have already enacted so-called burqa bans. As many countries are currently in the process of considering face veil bans, this Article may have relevance beyond the German context.
Constitutional Identity and Integration: EU Citizenship and the Emergence of a Supranational Alienage Law
Authors: Sánchez Sara Iglesias
Published: March 2019

This Article examines some central questions concerning the status of EU foreigners—non-EU nationals legally residing in the EU. First, it addresses the peculiarities of the status of EU citizens and the special nature of EU immigration law as the basis for the construction of an EU alienage law. Second, it examines whether and to what extent the emergence of a supranational immigration and alienage law—with a focus on integration—interacts with the broader debate on European and national constitutional identity. Third, the Article analyzes the legal difficulties for the application of the equal treatment principle between EU citizens and EU foreigners taking as a point of reference the different roles of restrictions and conditions based on the notion of integration.