In his 1935 indictment of legal education, Karl Llewellyn denounces the law schools of his time as factories pulling in immature, unprepared young men and, three years later, churning out young lawyers who are not significantly better prepared to deal with the realities of the legal profession. Llewellyn's critique touches upon every aspect of the North American legal education experience: the admission of students who lack the necessary critical research and writing skills, the rules-based “casebook” curriculum that ignores policy or practice questions and the release of graduates into the profession, without any follow-up on their experience that could be used to improve the education of the next generation of lawyers. In short, these graduates may have studied law, but they are not ready to practice law.

With a growing number of online services which aim to offer their product to a global audience, it becomes increasingly more important to keep informed about the rules and guidelines regulating this business within the countries of the targeted audience. The following article explains the main rules of liability for online services in Germany with special regard to the Telemedia Act.

The insolvency of a company does not arrive suddenly. Normally, insolvency precedes a crisis. At present, the term “crisis” is defined in § 32 a sec. 1 of the Gesetz betreffend die Gesellschaften mit Beschränkter Haftung (GmbHG – Private Limited Companies Act) as the point when the company does not receive any credits according to the usual conditions in the particular market and when the shareholders provide the company with further shareholder capital instead of debt capital. Besides the rules governing shareholder capital substitution, which will be omitted due to the upcoming reform of private limited companies, there are few legal guidelines that regulate the standards of conduct for managing directors and shareholders in the case of a crisis. In particular, § 49 sec. 3 GmbHG needs to be singled out. This paragraph establishes an obligation to call a shareholder meeting if more than half of the capital stock is lost. If an adverse balance arises because of the payouts to the shareholders, the protections of §§ 30, 31 GmbHG will intervene. An adverse balance results when there is insufficient capital to cover the liabilities, ownership's equity, and guaranteed capital. However these protections often do not suffice.

Sixty years after the entry into force of the Basic Law the world is much more interdependent. The concepts of statehood and sovereignty have changed. The following contribution examines how the Basic Law, as amended and interpreted by the Federal Constitutional Court, deals with this development. As a foundational matter, the Basic Law contains a commitment towards integration, although sixty years ago integration largely was seen as a promise. Now, 60 years later, the Federal Constitutional Court is developing limits to integration and recently ruled out Germany's participation in a European Federal State and sees itself as the guardian of German sovereignty. A change of paradigms seems to have taken place. For the founding fathers and mothers, a united—possibly even federal—Europe was considered to be the solution to protect against war and relapse towards an undemocratic, terroristic regime. But now the Federal Constitutional Court feels compelled to protect democracy and the core values of the Basic Law against “too much” European integration.

In the recent Anglo-American scholarly debate, contrary to that of continental Europe, judicial review of legislation raises strong criticism for various aspects. Among these, I will examine the claim that legislators are better equipped than courts in constitutional reasoning, on the ground that the institutional settings and procedures affecting the former ensures a better protection of rights than those that characterize the judicial function. The following questions will be posed: Do legislators primarily deal with rights as such? Do they reason about rights, and in that case for which purposes? Are these purposes sufficiently similar to those affecting the judicial reasoning about rights? Why in most legal orders courts are bound to reason-giving? While answering these questions, I will outline the different meaning that consequentialist reasoning is likely to acquire, respectively, in representative assemblies and on the bench. I will then classify the kinds of juridical consequences, and of the corresponding premises, that might affect constitutional reasoning according to the different weight of judicial construction. Finally, I will attempt to demonstrate why the indeterminacy of principles on which constitutional reasoning is expected to rely should be viewed as enhancing, rather than as distorting, the insight of courts on the right at stake.

What should we make of Susan Silbey's call for socio-legal scholarship that is both critical and empirical? Do we think the law and society movement can and should develop a critique of the legal order? Can empirical research contribute to such a critique? Does the idea of a “critical sociology of law” make any sense at all?

The development of modern corporate law can be located in four “origin” legal systems: France, England, Germany and the United States (specifically in leading State Jurisdictions such as New York, New Jersey and Delaware). These systems are often segregated between an Anglo-American “outsider” system of corporate law and governance and the Continental “insider” system. This has its political economy parallel in the “Varieties of Capitalism” literature, which separates the major capitalist economies into “Liberal Market Economies”, such as the UK and the USA, and “Co-ordinated Market Economies”, such as Germany. These distinctions concentrate, in particular, on whether the system of corporate finance is based on open stock markets and widely dispersed “outsider” shareholding, as in the Anglo-American model, or on finance carried out by “insider” universal investment banks with places on the supervisory organs of corporations as is often claimed to be the case for the German system.

The recent judgment of the International Court of Justice (ICJ) in the Case Concerning Jurisdictional Immunities of the State (Germany v. Italy; Greece Intervening) marks the climax of a series of legal proceedings before Greek, Italian, and German courts, as well as the European Court of Human Rights (ECHR) stretching over a period of more than fifteen years. The international community had eagerly awaited the ICJ's findings on the issue at the heart of the dispute, namely the scope of state immunity before foreign courts in cases concerning claims arising from serious violations of international humanitarian law. While most expected the Court to rule in favor of Germany and to uphold state immunity in principle, it was unclear whether the Court would acknowledge the increasing erosion of immunity with respect to serious violations of human rights or international humanitarian law. To the disappointment of many, the Court took a conservative approach and rejected the idea of an emerging exception from state immunity.

The welfare state aspect is among the central characteristics of German statehood as established by the constitution. For the Basic Law's drafters, it was so indispensable that they included the mandate of a welfare state in the catalogue of constitutional principles which are to have eternal validity within the constitution and which could only be dispensed with at the cost of breaching the constitution, the cost of revolution (Article 79(3) of the Basic Law (Grundgesetz in German; hereinafter “GG”)). Article 79(3) GG codifies the distinction between constitution and constitutional provision made prominent by Carl Schmitt, whose constitutional doctrine of 1928 asserted that, while the constitutional legislature can amend an individual provision in the constitution, the constitution as a whole is not to be changed short of political action transcending the law, that is, a revolution. Article 79(3) GG takes up this idea, insulating certain features of the constitution from amendment. These features—outside all democratic reach and thus quasi depoliticized—include the inviolability of human dignity (Article 1(1) GG) and the nature of the state as a democracy, a republic, a federal state based on the rule of law, and a “social” state (Article 20(1) GG). On closer scrutiny, the principles underlying the state's structure reveal a significant difference between, on the one hand, the principles of democracy, federalism, the rule of law, and republicanism and, on the other, the principle of the welfare state. The four former features stem from long traditions in constitutional law; modern political philosophy has detailed them precisely and the Basic Law concretizes them in thorough regulations. In contrast, the political history of ideas has failed to produce a “flag-bearing” thinker for the welfare state. The establishment of the welfare state has played no significant role in constitutional history. And, on first glance, even the Basic Law seems to provide hardly any specifics as to what exactly makes up its “social” state or, in particular, what normative consequences follow from this constitutional principle. This raises the question: What actually justifies the principle of the welfare state's illustrious position among those constitutional entities endowed with highest relevance? The following discussion develops the answer: Regardless of its limited historical and theoretical traditions, the principle of the Sozialstaat finds its meaning beyond its doctrinal content in its own distinct, symbolic substance.

It would be unrealistic to reject secession from the doctrine of self-determination and limit the doctrine to the colonialism context. Nevertheless, the question is: What principles do states need follow in response to secession movements? Democratic principles are not the best—or only—options to address these requirements, but the secession doctrine's development and state practice has made such principles legally and practically relevant, according to many scholars. This Article proposes that the focus of the debate should be transferred to the internal dimension of the right to self-determination. The possibilities that can come from the realization of this aspect of the right to self-determination can be further explored. Certainly there is a very wide and flexible range of options and measures for addressing, protecting, and promoting diversity, and thus overcoming identity conflicts and providing a balance of social power. Those political arrangements, though imperfect, can help to avoid secession, thereby providing stability, harmony, and prosperity of democratic societies. But practice has shown that there are exceptional cases in which the current conditions on the ground make the application of tools for internal self-determination impractical. In these exceptional cases, internal self-determination fails to achieve the desired goal. This Article examines the legal arrangements for realization of internal self-determination through the examples of Basque Country and Scotland as vital quests for secession in countries with long democratic traditions.

This Article aims to reimagine post-national legal solidarity. It does so by bringing debates over Habermasian constitutional theory to bear on the evolving use of mutual recognition and mutual trust in the EU’s Area of Freedom, Security, and Justice (AFSJ), particularly in the context of European asylum law and reforms to the Dublin Regulation. Insofar as critiques of Habermasian “constitutional patriotism” apply to the principle of mutual trust, the Article suggests why post-national solidarity requires fallibilism and dynamic responsiveness that exceed formalized rules of forbearance and respect.

On this revised view, legal solidarity guarantees a particular form of adjudication through which individual litigants in a particular case challenge the transnational structural conditions that give rise to individual harm. Because it acknowledges that violations of individual rights are always potentially or in part the result of a collective systemic failure, this conception of solidarity restores meaning to the transformative “transfer” of sovereignty that post-national law had promised. In the field of asylum law, I detail how this application of solidarity would offer a much-needed corrective to structural imbalances in the existing Dublin regime. I conclude with reflections on the principle’s application in additional fields of EU law, as well.

The article explores the understandings of democracy underlying the judgment and its implications for the democratization of Europe. I read the judgement, critically, as impediment and, constructively, as impetus for the democratization of money and society. Firstly, I recount how the Federal Constitutional Court (FCC) through the construction of a “right to democracy” and the concepts of “ultra vires act” and “integration responsibility” asserted its jurisdiction over the limits of European integration. The court’s reasoning prompts me to understand the judgment not as a defense of democracy, but rather as an instance of upholding a “rule of law” that impedes the democratization of society. Secondly, I turn to the pronouncements on the demarcation of monetary from economic competences by the Court of Justice of the European Union (CJEU) and the FCC. I explain what I hold to be the weaknesses in the FCC’s critique of the CJEU from a doctrinal perspective. I then propose to read the PSPP judgment constructively as introducing a procedural requirement that may democratize monetary policy. Thirdly, I situate my reading of the judgment in the larger debate on the democratization of society and, more specifically, money.

In the field of environmental law, be it on the domestic or the international level, it is especially difficult to develop effective regulatory systems and systems for sanctions to enforce obligations. The legal solutions employed under the auspices of the United Nations Framework Convention on Climate Change, as well as the Kyoto Protocol, constitute a fascinating attempt to address these problems, providing “a huge testing ground for the legal instruments of environmental policy, at the international as well as on the lower levels,” mirroring “enormous creativity in the design of regulatory approaches.” Even though the Kyoto Protocol, “if fully implemented, will not … avert or even slow climate change,” it serves as a fine example of emerging international composite administrations, where multiple actors participate in transnational institutions of a multilevel system, serving the common goal of mitigating climate change. The climate change regime's unique regard to flexibility in fulfillment is particularly prominent. This is complemented by especially stringent and complex compliance mechanisms, which have no parallel in other international forms of cooperation. A further significant characteristic of the system is the high degree of legitimacy enjoyed by its institutional organization, its procedures and procedural outcomes. Thus, the international cooperation under the framework of the Kyoto Protocol is a landmark: it achieves not only flexibility but also a high degree of legitimacy and represents a more mature example of the exercise of public authority by international institutions.

The meaning of idem in the ne bis in idem principle is controversial in the case law of the Court of Justice of the European Union. In interpreting the provision of Article 54 of the Convention Implementing the Schengen Agreement, the court has emphasized the necessary requirement in the identity of the material acts while in antitrust law three requirements have been deemed necessary: (1) Identity of the facts, (2) unity of offender, and (3) unity of the legal interest protected. Despite the opinions of some Advocates General, the court has confirmed different interpretations of the same principle, depending on differences of the legal scope in question. A few years ago, however, the European Court of Human Rights proclaimed the criterion based on the identity of the material acts as the most suitable. This might push the Court of Justice of the European Union to correct its position in the antitrust field. Should this happen, this adjustment might serve as grounds to recognize the existence of a regional custom concerning the ne bis in idem principle.

The aftermath of protests triggered by a brutal gang-rape in New Delhi in December 2012 was archetypal of the broader women’s movement in post-independence India. The primary demands of the social movement to address sexual violence against women were wrapped in the language of rights-based reforms in criminal law provisions. The state responded to the social mobilization in the form of criminal law amendments, while blindsiding key recommendations from feminist groups. This Article revisits pertinent Law Commission reports, subsequent criminal law reforms, and case law on sexual violence against women to analyze how the negotiations between the women’s movement and the State on the seemingly irreconcilable demands of sexual autonomy and punishment for sexual violence. We take account of the intended and unintended consequences of this reliance on criminal law as one of the primary tools in the arsenal of Indian women’s movements. We argue that engagement on the plane of criminal law to address sexual violence against women is a case of limited imagination at best and counter-productive at its worst. This approach of the movement and feminist groups is to react to the “crime” of sexual violence after the fact, leading to distraction from much warranted structural responses. We argue that this approach makes it harder to conceptualize and implement more forward-looking relational models of responsibility that are necessary to address the structural injustice of systemic sexual violence against women.

Preliminary Remark: The observations below are to be understood more as a draft than as theses. They refer to and continue a series of earlier considerations, most recently in two papers: Social Science Models in Economic Law, in Contract and Organisation, 52-67 (T. Daintith/G. Teubner eds., 1986) and Materialization and Proceduralization in Modern Law, in Dilemmas of Law in the Welfare State 221-248 (G. Teubner ed. 1986); both papers are also to be found (in German) in the following documentation: G. Brüggemeier, Workshop zu Konzepten des postinterventionistischen Rechts, Materialien des Zentrums für Europäische Rechtspolitik, 2-24, 25-64 (Ch. Joerges eds., Heft 4, 1984).

This Article argues that a) constitutional supremacy is affected by the legal tradition, which implies that it is a concept largely shaped by the legal context in which it is elaborated, and b) the common law version of constitutional supremacy determines a sort of cultural resistance to constitutional imperialism. In making its argument, this Article begins with the doctrine of sources of law with a view to unpack its operational logic within the common law and, therefore, to understand how the supremacy of constitutions is conceptualized. It then examines the embryonic conceptualization of constitutional supremacy in the British legal culture by addressing the “constitutional statutes.” It goes on to analyse how constitutional supremacy is safeguarded in jurisdictions that are affected by the British tradition and equipped with written constitutions, to show how constitutions concretely established themselves as supreme laws without neglecting the relevance of traditions pre-dating the constitutional texts. It then shows how the common law finds its way to be applied alongside or even instead of the constitution. Eventually, this Article offers some conclusions as to the implications of such a conceptualization of constitutional supremacy for comparative and global constitutional studies.

The United States and other nations have taken numerous military, police and intelligence measures in order to counter terrorists’ threats in response to the September 11 attacks on the World Trade Center in New York City and the Pentagon in Virginia as well as the attempted attack on a target in Washington, D. C.