The German Federal Constitutional Court’s climate decision provides a nuanced acknowledgment of climate change’s constitutional relevance. In this Article, the author critically assesses how the Court innovatively sought to capture the intergenerational equity dimension of climate mitigation through a combination of negative and positive duties stemming from constitutional law. The Article demonstrates how despite progressive findings on intergenerational equity and the innovative invocation of negative duties, the operative part of the decision turned out to be rather limited. Because of remaining uncertainties about the allowable national carbon budget, the Court was unable to require the legislator to enact a stricter reduction path. The author argues that the Court could have narrowed remaining uncertainties, without engaging in judicial activism, by adopting an international and constitutional minimum approach to calculating the national budget and by adjusting the burden of proof. Finally, the Article highlights how the German legislator, by going beyond what was required by the Court “trapped itself” on an ambitious reduction path, opening opportunities for future constitutional complaints.

Constitutional law is special not only for the salient importance of its substance, but also for its concentrated yet open form and terminology. Hardly surprising, therefore, the issue of how to interpret and analyze constitutional law is a commonly and sometimes hotly debated topic in most constitutional systems.

This work draws from accounts on the nature and legal effects of soft law instruments in EU and international law with the ultimate aim to construct a theoretical framework for recognition of EU competition soft law—guidelines, communications, notices, and the like—in the judicial discourse of national courts of the European Union. “Recognition” is used to encompass instances in which the national judiciary either explicitly interprets—that is, agrees or disagrees with—the content of competition soft instruments, or treats their substance in a roundabout, implicit way—without explicit reference to soft law in the judgment proper. This second option is called “the persuaded judiciary scenario.” Importantly, a foundational assumption of the current work is that courts do not transform soft law into hard law when subjecting the former to judicial interpretation/recognition.2

Climate change has become a household term. As the climate crisis grows increasingly pressing, climate litigation has proven instrumental as a driver for change. Brazil is an important jurisdiction for climate matters: It is the sixth largest global greenhouse gas emitter, responsible for 3.2 percent of global emissions,1 and home to the largest extension of the Amazon rainforest. Climate litigation has been gaining traction, but it is still far less frequent than environmental litigation at large. Against the backdrop of the state and trends of climate litigation in the country, this article explores theoretical and practical avenues to further expand the strategic deployment of climate cases in Brazil. First, it analyzes how climate claims can be construed with arguments that are impervious to the political question doctrine. Second, it explores possibilities of bringing claims against private entities, challenging more granular obligations arising out of Environmental, Social and Governance (ESG) frameworks. Third, it discusses the role of lawyers in bridging theoretical and practical gaps, namely those between environmental law and climate law, between scientific experts and courts, and between international and domestic climate change regimes.

Does Derrida's death justify a special issue of this Journal, preceded immediately by a special edition on human rights? Can death justify anything at all? And what does this mean for the authors of this volume; are their texts doomed to remain unjustified, if no authority steps in to legitimate our endeavour to gather texts by friends in the name of Derrida?

Since 2014, the refugee crisis has determined a sharp increase in the number of unauthorized arrivals on the Italian shores. However, contrary to what happened in other less affected European Union countries, the Italian government has not reacted with an antiimmigration policy. Rather, it has tried to reconcile the overarching imperative of a full compliance with EU norms regulating external border controls with the observance of the most compelling humanitarian obligations. The results have been mixed. Both the functionalist bias that is inherent in the administrative action and the legislative inertia during the crisis have produced a detrimental impact on the fundamental freedoms of the migrants. The Article addresses four main constitutional challenges: (1) The lack of legislative authorization for the imposition of coercive means in the context of the “hotspot approach”; (2) the deficiencies of the Italian system for the reception of asylum seekers and refugees, which became a source of destabilization of the Dublin system and the Schengen area; (3) the low level of due process protection that is guaranteed to migrants that are subject to return procedures; and (4) the problematic need to cooperate with third countries that do not adequately protect human rights. The Italian case illustrates a distinctive, yet more general trend. For member states who are geographically exposed to migration flows and whose borders overlap with the external borders of the Schengen area, developing an antiimmigration or anti-EU policy would be short-sighted and self-defeating. Those states need more—rather than less—Europe because they cannot stop the migration inflow. And they need to effectively manage it because it is the only way to keep the Schengen area alive—and not to be excluded from it.

At a first glance the International Court of Justice (ICJ) has given a clear negative answer to the question submitted to it by the General Assembly. According to the ICJ's advisory opinion from 22 July 2010, Kosovo's declaration of independence did not constitute a violation of international law. Yet, reading the reasons the ICJ offered in support of its holding, one soon discovers that many relevant questions have been left open.

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

On 30 June 2005, the Grand Chamber of the European Court of Human Rights (ECHR) issued a judgment concerning the expropriation of the heirs of new farmers in the former German Democratic Republic (GDR). With this decision, the Grand Chamber overturned a unanimous judgment by the Chamber of 22 January 2004. This article outlines the facts of the case (section A), the German case law (section B) and the Chamber and Grand Chamber judgments (section C) and provides an evaluation of the judgments (section D).

This Article explores the manner in which, faced with the rule of law crisis generated by the 2017–2019 national legislative reforms, the Romanian judicial associations, organized as NGOs, have fulfilled their declared purpose of safeguarding judicial independence. By relying on effective communication tactics—including international networking and lobbying or informal discussions with high-level EU representatives—coupled with a strategic use of preliminary references, they have shed light on some of the most sensitive elements of the Romanian context, garnering both internal and international support in the process. In particular, by taking advantage of the CJEU’s increased willingness to engage with questions concerning the rule of law and the organization of the national judicial systems, the Romanian judicial associations have managed to design strategies capable of triggering preliminary rulings on the most heated and politically charged questions concerning the judiciary. This Article seeks to highlight the specific features and informal elements of such strategies.

Private sector companies face a major challenge in ensuring compliance with the many detailed data protection rules that can apply. The compliance burden is further increased if a business enterprise operates in several countries with different data protection rules. This may complicate the exchange of data within the enterprise. The purpose of this article is to plot a path through these rules governing the transfer of personal data abroad.

Democratically legitimized European integration calls for developments in culture and society—which arise naturally in the scope of on-going political, economic and institutional European Union (EU) integration—to be publically debated so they may be politically processed. The space where this happens is the public sphere, or, in the context of the EU, the European public sphere. The latter complements national public spheres. Successful integration among EU Member States is made possible by adhering to a common set of values at the same time as respecting the national identities of the Member States and fostering cultural diversity. By way of Union citizenship rights, individuals are able to make use of and actively promote the Europeanization of societies and cultures. Yet citizens are affected by Europeanization to differing degrees, with only a minority of citizens actively partaking in transnational exchange. In order to account for European integration democratically, the EU treaties hold provisions allowing for a close institutional interdependence of national and European democracy.

Many questions come to the mind if one starts thinking about morality and the law - questions about the epistemological or ontological status of morality, its content, motivating force or cognitive accessibility. They concern the content of norms, the enigma of justice and the demands of human solidarity. The universality, particularity or relativity of morality and material legal standards is as much an issue as the general relation of morality and the law.

In German post-war history, hardly any other trial concerning economic criminal cases attracted as much interest as the so-called Mannesmann trial. This is for two main reasons. First, the facts that form the basis of the decision, that is, the hostile takeover of the German Mannesmann AG by the British Vodafone, attracted much attention and sparked public discussion about eliminating the very possibility of hostile takeovers in general in Germany. Second, interest in the case was due to the magnitude of the bonuses granted and the significance this had for the public at large. As a consequence of this trial and the settled payments, the debate around the appropriateness of executive compensations, existing prior to the case, grew more acute. After all, the current draft law to disclose executive pay resulted from these debates about the size of the compensations.

International business disputes rarely go to court, but sometimes they do. By virtue of the internationally accepted principle of party autonomy, business partners involved in cross-border transactions are entitled to select their forum of choice for any dispute which may arise from their commercial relationship. Party autonomy entails the right to opt out of the nation state's court systems. In fact, arbitration clauses often refer disputes to a non-state institution for commercial arbitration such as the International Court of Arbitration of the ICC in Paris. In a choice of court agreement, however, parties may also choose between the different forums for dispute resolution provided by the nation states. In the era of economic globalization when the demand for cross-border dispute resolution services is growing, the provision of legal services for international commerce becomes big business. As a result, national business lawyers develop a natural interest in channeling international disputes to their domestic courts. A very effective way to broaden their market share is to submit as many contracts as possible to their own national law. Once a choice of law clause, English law for example, is agreed on, a corresponding choice of court agreement comes quasi naturally, since the courts of other nations have a lack of experience in applying foreign law. Thus, when international business transactions are negotiated, the involved lawyers engage in what is appropriately described as a ‘fight for the applicable law'.

The Talmud tells us how once during a heated halachic discussion, when no agreement could be reached, Rabbi Eliezer, whose detailed, elegantly justified legal opinion was not shared by the majority, said that if he were right, a carob tree outside would move to prove it. When it did move, the other rabbis remained unimpressed. Eliezer claimed that if he were right, a nearby stream would flow backwards - and it did; he claimed that the schoolhouse walls would bend - and they did. But the rabbis were not impressed by these wonders either. Finally he said heaven itself would prove him right. Thereupon a Heavenly Voice confirmed Eliezer's position. Yet the rabbis disagreed even with this voice, saying: “We pay no attention to a Heavenly Voice, because Thou hast long since written in the Torah at Mount Sinai, after the majority must one incline”. And God laughed, saying “My sons have defeated Me, My sons have defeated Me.”

For the first time, national provisions governing the quantification of respective compensation amounts due for public purposes expropriation and for unlawful expropriation were declared unconstitutional by the Italian Constitutional Court's decisions No. 348 and 349, issued on 24 October 2007, because they were in contrast with the international obligations stated in Protocol 1 of the European Convention of Human Rights (hereinafter the “ECvHR”), Article 1.

This introduction explains the title of this special issue as a call for transdisciplinary and culturally-oriented research on law in Germany. In an initial overview of pluralism, the text asserts that a German discussion of the pluralistic nature of legal authority predates the twentieth-century one within legal anthropology, legal theory, and political philosophy. The first part of the text reviews the early discussion of legal pluralism in the context of debates about state formation and an appropriate balance of forms of normative authority. This discussion points to the inherent plurality and affectivity of law. The second part of the introduction, in turn, is devoted to an argument in favor of the culturally-embedded and - mediated nature of legal phenomena made through an analysis of images relating to the so-called refugee crisis. On the basis of this analysis, it is posited that critical cultural methods and concepts are needed to comprehend current processes such as the so-called Europeanization of law, the increasing heterogeneity of legal systems and cultures, and to critically bracket the idea of “legal culture” in and of itself. The last part of the introduction offers an overview of the essays in this special issue. On the one hand, each essay contributes to the thesis that law is pluralistic and has to be investigated interdisciplinarily, using a plurality of methods. On the other hand, all of the contributions make a different kind of claim for how law transpires and is transported through theatrical, visual means, narratives, and affects.

For ten years, the legitimacy of constitutional comparison in courts has been intensely debated. The case law of the U.S. Supreme Court led to an intense discussion on constitutional comparison and reached its peak with the Great Debate between Justice Scalia and Justice Breyer. Justice Breyer argued in favor of constitutional comparison while Justice Scalia refused the comparative approach. Justice Scalia stated: