In its Aid Measures for Greece and Euro Rescue Package case, the German Federal Constitutional Court affirmed the Parliament's budget authority to provide financial aid measures to the European Monetary Union. The judgment conforms to the German Federal Constitutional Court's case law concerning the transfer of sovereign power to international organizations and reaffirms that German participation in international organizations is linked to constitutive pillars of the German Basic Law. One of these pillars is the Principle of Parliamentary Budget. This principle provides that any financial aid package has to be approved by the Parliament of the Federal Republic of Germany (Bundestag) before guarantees can be given to other states by the Federal Government. In its holding, the German Federal Constitutional Court ruled that the aid measures for Greece and the euro rescue package were consistent with the Principle of Parliamentary Budget and German Basic Law.

Harmonisation of the different rights of withdrawal, enshrined in legislation on doorstep selling, distance selling, timesharing, and in the near future consumer credit, is amongst the top issues of the EC agenda on European private law. Germany, following its tradition of a well-organised system of private law rules, has tried for some time to establish a harmonised system at the national level. At the same time, Germany appears to have created one of the most detailed set of rules on the right of withdrawal in Europe, in particular with a view to the consequences of the withdrawal from a contract, and it has tried to find the right balance between the interests of consumers and traders, a challenge that will also come up at EC level.

“The headscarf case” is more than just a case. Talking law is often talking cases, but we need to understand law more specifically as a powerful practice of regulation. Law is also not only another discourse, or just text, or politics, with fundamental rights as “an issue,” or a promise, or just an idea. Instead, to protect fundamental rights, it is necessary to understand how in reacting to a conflict, we in fact speak rights today—Rechtsprechung—as a form of practice. The German Federal Constitutional Court's decision in the conflict about female teachers wearing headscarves in German public schools may be used to illustrate the pluralities of law—understood here as legal pluralism. This pluralism includes actors and legal arguments as frames to the speaking of law. In addition, it becomes clear that any analytical focus on gender, based on the current state of the art, further illuminates these issues. As such, interdisciplinary legal studies become inherently critical to the protection of fundamental rights.

Cosmopolitan constitutionalism contends that supranational governance can achieve a democratic character. It assumes that an essential core of the concept of democracy can be disembedded from the notion and institutions of the constitutional nation state and re-planted within transnational governance systems, in the EU and beyond, even while these fail to provide for representation and accountability along traditional lines. It further asserts that social ordering deriving from transnational governance that is democratic will be legitimate.

In most EU policy areas, procedural cooperation between national administrations takes place through the shared implementation of “composite” decision-making procedures, facilitated by the operation of multijurisdictional networks or horizontal or vertical information exchange. In the context of asylum policy, such administrative cooperation has been necessary in the distribution of asylum seekers—in accordance with the Dublin III Regulation, which allocates responsibility among Member States to examine an asylum application. In addition to rules in the Regulation itself—Article 34—information sharing also takes place through Eurodac, an EU-wide centralized information system. This Article examines whether the Dublin system ensures effective judicial and administrative remedies in the operationalization of multijurisdictional information networks. It analyzes the relevant Eurodac and Dublin-related legislation, national implementation, and national case law through the lens of administrative cooperation. The assumption that the data exchanged has been acquired and processed lawfully, due to interstate trust, and the extent to which that assumption is rebuttable, are central themes throughout this Article. It is argued that administrative cooperation through information sharing takes precedence over the right to an effective remedy, and that, in practice, judicial and extrajudicial remedies are insufficient to protect asylum seekers.

In its judgement from June 27, 2001, in the LaGrand Case (Germany v. United States of America), the International Court of Justice made a number of watershed rulings: (a) The Court established that Article 36(1) of the Vienna Convention on Consular Relations creates individual rights for foreign nationals abroad, and not just rights protecting the interests of states that are a party to the Convention; (b) The Court ruled that, beyond the undisputed failure on the part of the U.S. to take the measures required by the Convention, the application of an American provision of criminal procedure in the LaGrand brothers' cases (a provision that prevented the domestic courts from reviewing the implications of the Convention violation admitted by the Americans) itself constituted a violation of Article 36(2) of the Convention; (c) The Court, as a remedy in the case of future violations of the Convention, ordered the United States to provide a procedure for the review and reconsideration of convictions secured in circumstances in which the obligations of the Convention had not been observed; and (d) as a separate matter the Court ruled that its provisional orders, issued pursuant to Article 41 of the Statute of the International Court of Justice, have binding effect.

Since the European Union (EU) agreed upon the extension of its activities to the fields of foreign, security, and criminal policy in the Maastricht Treaty, the question of the delimitation of those new areas of EU competence towards the “classical” policies under the Treaty of the European Community (TEC) has been present. The broad and rather vague scope of the Common Foreign and Security Policy (CFSP) in the so-called second pillar of the EU and the area of political cooperation covered by the third pillar presents several uncertainties. One such uncertainty is the relationship between the supranational legal order under the TEC and the more intergovernmental and diplomacy-based cooperation under the Treaty on the European Union (TEU). Although the EU was organized within a single institutional structure, the substantial differences with regard to voting procedures, competences of the European Court of Justice (ECJ) and the role of the European Commission rendered a clear separation of competences under the different pillars compulsory: CFSP remains beyond the jurisdiction of the ECJ; the Commission and the European Parliament have only marginal rights of participation; and the legal obligations under the second pillar cannot claim supremacy over national law or direct effect.

The United Nations Charter-based international order sought to reconcile the self-determination of peoples with the inviolability of state boundaries by presuming sovereign states to be manifestations of the self-determination of the entirety of their territorial populations. This presumption, albeit nationally rebuttable, traditionally prevailed even where states could only by a feat of ideological imagination be characterized as “possessed of a government representing the whole people belonging to the territory without distinction.” But the international reaction to fragmentation in the former Yugoslavia—regarding both the initial “dissolution” and the subsequent struggle over Kosovo—called into question the rigid doctrines of the past and opened the door to secessionist claims theretofore dismissible as beyond the pale. Although no vindication of Russian intervention in Ukraine can properly be drawn from the Yugoslav cases, the Ukrainian crises help to surface the hidden dangers of an emerging jurisprudence that would allow previously inadmissible considerations—whether ethnic, historical, constitutional, or “democratic”—to compromise the territorial inviolability norm.

Criminal offenses with the most different modi operandi and levels of complexity can generate digital evidence, whether or not the actual crime is committed by using information and communication technology (ICT). The digital data that could be used as evidence in a later criminal prosecution is mostly in the hands of private companies who provide services on the Internet. These companies often store their customers’ data on cloud servers that are not necessarily located in the same jurisdiction as the company. Law enforcement and prosecution authorities then need to take two steps that are not exclusive for evidence of a digital nature. First, they need to discover where the data is located—with which company and in which jurisdiction. Second, they need to obtain the data. In considering digital evidence, the last step, however, is complicated by new issues that form the focus of this paper. The first concern is the practice by companies to dynamically distribute data over globally spread data centers in the blink of an eye. This is a practical concern as well as a legal concern. The second issue is the slowness of the currently applicable international legal framework that has not yet been updated to a fast-paced society where increasingly more evidence is of a digital nature. The slowness of traditional mutual legal assistance may be no news. The lack of a suitable legal framework for competent authorities that need to obtain digital evidence in a cross-border manner, nonetheless, creates a landscape of diverse initiatives by individual states that try to remedy this situation. A third issue is the position that companies are put in by the new EU proposal to build a legal framework governing production orders for digital evidence. With companies in the driver's seat of a cross-border evidence gathering operation, guarantees of the traditional mutual legal assistance framework seem to be dropped. A fourth issue is the position of data protection safeguards. US based companies make for significant data suppliers for criminal investigations conducted by EU based authorities. Conflicting legal regimes affect the efficiency of data transfers as well as the protection of personal data to citizens.

For the first time in its history, the EU is in the process of acquiring significant and genuine permanent operational powers. A new Regulation on the European Border and Coast Guard provides Frontex with a permanent corps of 10,000 border guards—3,000 of which will be EU agents—its own equipment, and its own competences to intervene along the EU borders and beyond. The operational powers will allow the EU to directly and physically intervene in tangible reality.

This Article argues that the conferral of operational powers on the EU poses a risk to individual legal protection. This is because once authorities have acquired operational powers of a certain extent and quality, they can afford to act against or without the law by simply overpowering or eluding the legal mechanisms that normally constrain the exercise of public power. So far, Members of the European Parliament and academics critical of Frontex and the new Regulation have overlooked this issue and concentrated exclusively on how to legally constrain the exercise of operational powers. This Article addresses this blind spot by examining whether and how public law should place legal constraints not only on the exercise but also on the build-up of operational powers.

Corporations are notoriously powerful actors in the current configuration of our globalized economy. Their activities play a key role in shaping a new age of ecological precarity—the Anthropocene. Much of this environmental damage occurs in cross-border settings, hampering victims’ access to legal remedies due to widespread corporate impunity and institutional hurdles in host states. Several transnational lawsuits have recently tested the willingness of European home state judiciaries to adjudicate the extraterritorial conduct of domestic corporations. To contribute to a more nuanced understanding of this novel phenomenon, this article analyzes three legal sagas from a comparative perspective: Vedanta v. Lungowe (England & Wales), Dooh v. Shell (The Netherlands) and Lliuya v. RWE (Germany). It argues that transnational tort suits remain a problematic vehicle for the attainment of procedural and substantial environmental justice. The inherent limitations of tort law, extra-legal hurdles to transnational litigation, and the socio-cultural contingency of legal institutions severely circumscribe the space for legal contestations of the corporate Anthropocene.

Since contracts form a basic institution of every legal order, the interdisciplinary orientation of concepts of contracts reveals socio-legal inclinations of a legal order more broadly. Contrasting the UK and US Common Law of contracts with developments under German law, this Article examines the relation between normative and social science approaches, notably rooted in economics, economic sociology, and social theory in the genealogy of contract law. A shared leitmotif over the 20th century has been the drive to account for the societal embeddedness of contract. However, conceptualizations of “Contract and Society” differ considerably between legal orders in their disciplinary ingredients and design. In the US, and to a lesser extent also in the UK, the rather continuous reception of legal realism has paved the way for broad interdisciplinary perspectives on contract law, ranging from classical socio-legal, empirical work (e.g., Macaulay), economics (e.g., Williamson), sociology (e.g., Powell), and critical theory (e.g., Kennedy) to today’s landscape, where essentially instrumental and ideal-normative theories compete. Alternatively, in Germany, where the realist heritage was more ephemeral, the transformations of contract law were processed from within legal discourse and foremost in their effects on private autonomy as conceptualized, for example, in German idealism, discourse theory and critical theory. Similarly, the “constitutionalization” of contract law—even if championed for fostering private law’s reflexivity—has, for the most part, defied a socio-legal orientation. Finally, the Article highlights the path dependencies with which these different starting points translate in current debates around the role of contract in transnational governance.

The EU’s limited powers do not enable its institutions to effectively intervene in cases where Member State actions threaten fundamental values. The recent controversies emerging from some Member States’ human rights and rule of law backsliding turned this question to one of the core issues of the European project, calling for effective fundamental rights protection in the EU without suppressing national constitutional identities. Though EU law’s approach, at least at first glance, might appear to be idiosyncratic, it is far from unprecedented and, as far as multilevel constitutionalism is concerned, EU law may draw on the experiences of various regimes where centralized human rights protection and national or state constitutional identities coexist. This Article analyzes the current European approach as to the application of the federal bill of rights to states from a comparative perspective and explores the constitutional and jurisprudential patterns addressing the question of inquiry in a multilevel constitutional architecture. The Article analyzes the subject from a doctrinal, ontological, textual-conceptual, and institutional perspective with the aim of contributing to the current European debate with a new comparative perspective and fostering EU constitutional development with structural patterns. It submits that the currently prevailing paradigm of “scope” should be replaced or complemented with the paradigm of “core standards” and proposes a doctrine of European incorporation, arguing that the diagonally applicable rule of law and human rights requirements should be incorporated via Article 2 TEU to make them judicially applicable.

Gender in socio-legal teaching and research in Germany is a story of impediments, hindrances, and of singleperson initiatives—my personal history being a part of this. But it is also a story of influences upon the impulse and inspiration to undertake socio-legal work. My Article is therefore influenced by (feminist) standpoint theory (Harding 1991). Germany has had a very conservative family culture and, over the past decades, many of the legal regulations that infringed upon women have had to be adapted, in what was quite a tedious political process, to comply with the German Constitution’s gender equality clause. Only in the past decade has gender awareness in law faculties increased and gained acceptance, usually as a result of greater focus on diversity issues, and anti-discrimination legislation. Obstacles have resulted from a lack of cooperation between the actors in social sciences and law, as well as in academia and gender equality practice, and a lack of understanding between more conservative and more progressive women. Socio-legal research was, and is, needed to deliver empirical evidence and provide theoretical foundations for cultural and legal changes as societies progress towards gender equality. Socio-legal teaching is needed to alert lawyers to necessary change, to enable them to undertake informed critique, and to prepare them to act. There are, however, marked deficits in socio-legal teaching and research on gender. In spite of an increased political acceptance, gender equality is still mainly a women’s project.

The international economic order is undergoing significant change. Most recently, key countries have been seeking to increase their level of economic security, including through increased industrial subsidies. Regulating subsidies is controversial, but undisciplined subsidy payments could be harmful for the healthy functioning of markets and balanced development among nations. In this regard, the GATT-WTO has regulated subsidies, but it has not been fully functional in recent years, and reform efforts do not appear to be bearing fruit soon. Therefore, in parallel with WTO reform efforts, reliance on other approaches, such as discipline through free trade agreements (FTAs), should be considered. Disciplining subsidies through FTAs is inherently difficult, given the cross-border nature of subsidies on the one hand and the geographical limitations of the FTA’s scope of application on the other. In recent years, however, such disciplines in FTAs have begun to appear, starting with EU FTAs. Thus, this article explores the possibilities and limitations of the discipline of subsidies through FTAs, using Japan’s FTAs as a case study, to approach the path to international control of subsidies. Accordingly, this article first reviews the range of related issues and developments, including characteristics of subsidies, the rationale for subsidy discipline in trade agreements, recent challenges to multilateral subsidy discipline, the current status of subsidy discipline through FTAs, and the background of subsidy discipline in EU FTAs. The article then identifies the WTO-plus elements that are distinct to subsidy disciplines in EU FTAs and discusses their implications. Through these, it highlights the perspectives needed when considering subsidy discipline through FTAs, examines Japan’s FTAs in light of these perspectives, and presents the findings and implications thereof. Considerations are given to Japan’s FTA/trade policy as a background for its subsidy discipline through FTAs, the current status and characteristics of subsidy disciplines in Japan’s FTAs, the Agreement Between the European Union and Japan for an Economic Partnership’s (JPN-EU) subsidy-related provisions as drastic change, the effects on the Asia-Pacific region, and future prospects.

The Israeli democracy regulates the operation of the judiciary through the constraints of formal rules that check the political actors, the individual judges, and the judiciary. Basic laws, laws and regulations prescribe the operation of every subject. Yet beyond these formal rules, informal institutions and practices are sometimes equally important in the operation of the judiciary, as they are in any constitutional system. In Israel, some of these informal institutions are crucial for the flourishing of democracy and the rule of law, through their protection of judicial independence from external political interference. The imminent possibility that political actors may set some of them aside is nothing less than a potential transformation in the constitutional order. Over the past few decades, judges and court administrators have introduced other internal informal institutions in the administration of the Israeli Judiciary, which qualify formal judicial accountability mechanisms in ways that may prove to be detrimental to democratic principles. This article discusses informal institutions that are important in the operation of the Israeli judiciary, separating the former external kind that are conducive to the rule of law—such as the illegitimacy of political and partisan considerations in judicial appointments—and whose disregard may signal democratic decay from the latter internal kind that may prove detrimental to the courts—such as opaquely changing who is responsible for court administration. Lastly, the political attempt to change informal institutions, detailed herein, can be seen as a harbinger of the current attempt to change formal institutions in the constitutional status of the judiciary in Israel.

Trust is an essential element for the functioning not only of ancient societies but also of modern societies. This article explores the different dimensions of trust in general and the different dimensions of the relationship between trust and the law, in particular. More specifically, we distinguish three different levels of interaction between trust and the law: (1) trust in the law; (2) trust through the operation of law, and (3) trust as defined by the law. Building on these categories, we finally turn to the “tsunami of regulation” (“Regulierungstsunami”) in the area of EU financial market law that has occurred in the wake of the financial crisis of 2008. As will be shown, trust can serve as a legal concept for making sense of this flood of legislative acts and of shaping these into a coherent framework. A different question yet to be answered is whether the flood of legislation already resulted in providing for an excess level of trust.

Legal metamorphoses between persons/things have been recurrent in history: Persons can become things, animals can turn into persons, and even ghosts can obtain personhood in the legal domain. Law would work then as a form of magic, a powerful instrument to create realities that, although fictional, have very real effects. Drawing on anthropology and legal scholarship, I will show the links between law and magic. In this endeavor, I examine two groups of legal cases from Argentina where people and animals respectively obtained personhood through the magic of law. First, I analyze the so-called human rights trials that are judging the crimes of the last military dictatorship (1976–1983), and I argue that these are working to restore the legal personhood of those who enforcedly disappeared. Second, I examine a series of judgments that have recently ruled—for the first time in modern legal history—that orangutans, chimps, and elephants are “nonhuman persons.” I conclude this Paper by contrasting legal magic with shamanic practices. I argue that even if these two are linked, it is possible to find in some forms of shamanism a different way of framing the relationship between persons/things that can offer an alternative (to) law.

Targeted sanctions, namely asset freezes and travel bans, are no longer the province of foreign policy alone. They are increasingly often used by governments in response to crime, such as corruption, human rights abuse, cybercrime, drug trafficking, and transnational organized crime writ large. Such sanctions are imposed based on permissive evidential standards, such as that of “credible evidence” or “reasonable grounds to suspect.” Their advent has added a new layer to a multi-tier system of state responses to crime. First, there is the traditional approach of criminal prosecution and conviction based on the criminal standard of proof. Second, one rung below is non-conviction based asset forfeiture, a notionally civil confiscation of supposed proceeds of crime that eschews the need for compliance with a suite of criminal trial safeguards. At the third level of this hierarchy are crime-based targeted sanctions, which vest the state with the greatest latitude in dealing with suspected criminals. Based on a wide-ranging analysis of international practice, this article contends that not only are crime-based sanctions de facto a criminal justice tool, but also that a coherent set of principles is required to determine their relationship with other responses to criminal behavior.

Americans usually start a presentation with a joke, Germans usually with an apology, Russians with a complaint, and Middle Easterners often with a conspiracy theory. There are many reasons why Middle Easterners have been more prone to conspiracies than others. The psychology of conspiracy is complex, and merits a separate treatment. But part of the answer must lie in the fact that for much of its modern history the Middle East has been at the mercy of external forces whose decisions were not only beyond the control of indigenous populations and elites, but moreover appeared unfathomable to those unfamiliar with the way political and strategic decisions are made in the West.