It has been forty years since the Chinese Communist Party (CCP) initiated the modernization project of Post-Mao China. As with other sectors, learning from the West was one of the basic strategies taken by the CCP to achieve the modernization of Chinese socialist legality, even as Chinese law is meant to be grounded in the orthodoxies of Marxism-Leninism. In order to learn from the West, the CCP generally adopted an elastic and dualistic approach to reform that is based on the utilitarian incentives of Deng Xiaoping. In the political sector, for example, the CCP looked back into the past and the CCP’s successful experiences under Marxist-Leninist doctrine. The aim was to immunize politics from the influence of western liberal-democratic ideology. But in the economic area, the CCP moved toward the West by vigorously adopting advanced western rules and institutions for managing the economy. This article examines how this strategy formed the basic contours of Chinese socialist legality in the past forty years. The article identifies the resulting internal lacuna, especially with respect to the realization of the “rule of law.” This article also analyses the possible future of a Chinese-socialist rule of law. That possibility will be affected by changing external circumstances, particularly the deterioration of China-US relations.

The European Union takes on a new look. The Constitutional Treaty, which was agreed by the heads of State or Government on 18 June 2004, will, admittedly, not reinvent Europe, but it will establish a new foundation for Europe. It is true that originally the Constitutional Treaty was only supposed to improve Europe's legal bases and to make the European idea and the institutions of the European Union more accessible to the citizens. However, through the concept of a Constitution alone, the Constitutional Treaty has created a vigorous political impulse, and has marked a new level of Europe's identity. The use of the term “Constitution,” however, also gives rise to ideas, hopes and fears that in some cases need to be corrected.

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.

Ever closer gets the net of networks, and so it does in law and legal scholarship. Finally in the law, one feels tempted to remark. But there is a reason for the lawyer's patient scepticism, for her professional habit to await a certain academic consolidation of a concept before setting out on a transdisciplinary transfer. There is a reason – and it lies in the law's “necessity to decide” (Entscheidungsnotwendigkeit). There is no shortage of fuzziness and uncertainty. But have life and law ever been less paradoxical? Arguably, the problem is not new, yet it has only recently been made explicit.

On 14 February 2008, German prosecutors and investigative authorities made a sensational catch. That day, it became public that they had initiated criminal investigations against Klaus Zumwinkel, then head of the DAX-listed corporation Deutsche Post. Additionally, the top manager's villa in Cologne was searched in a dawn raid and, as the media apparently had been tipped off, TV cameras could film the corporate executive while accompanied out of his home by prosecutor Margit Lichtinghagen. About one year later, Zumwinkel, no longer head of Deutsche Post, was convicted of tax evasion to two years of prison placed on probation. Although hailed by many as a triumph for the prosecution of white-collar crimes and the fight against corporate executives' recklessness, some already questioned the approach of prosecutors and investigators in the early stages. This criticism first and foremost referred to the fact that important information used as evidence in the investigations as well as the subsequent criminal court proceedings stemmed from banking data “stolen” by a Liechtenstein banker from his (former) employer Liechtenstein Global Trust, a bank based in Liechtenstein, and subsequently purchased by German authorities. This phenomenon, the purchase of “stolen banking data by German authorities, was not unprecedented as the so called “Liechtenstein tax affair” (“Liechtensteinische Steueraffäre”) had already been going on for some time. Zumwinkel, however, was the first widely known defendant in that context.

Some years back, Philip Alston argued that processes of globalization, such as the privatization of state functions and the deregulation of private power, while purportedly value-neutral, have “acquired the status of values in and of themselves.” The market is increasingly seen as “the most efficient and appropriate value-allocating mechanism.” As a consequence, human rights become subjected to a litmus test of their “market-friendliness.” As Alston puts it:

With the progressive “accession” of the German Democratic Republic to the Federal German Republic after the reunification in 1990, Germany had to deal with a number of impediments emanating from the attempt to reconcile different political, social and legal models that developed during the forty years of separation between East and West Germany. Among these was the issue of how the property order in Germany would be influenced by seeking to integrate two such different socio-political and legal systems. As the discussion below indicates, the demands placed by this issue on the courts, legislature and administration of the newly reunified Federal German Republic still cause repercussions.

This note addresses the proscription of terrorist financing under transnational law. It considers both criminal and civil regulatory frameworks. Although the 9/11 attacks certainly galvanized jurisgeneration in this area, important treaties and customary principles preexisted those attacks. Insofar as the law on this topic is quite robust, this note does not provide a typology of every legal prohibition that touches upon terrorist financing. Instead, it offers an overview of the subject matter through case-studies drawn from international treaties and Alien Tort Claims Act litigation in the United States, and it also places the regulatory framework of terrorist financing within both lex lata and lex ferenda regarding the proscription of terrorism generally.

The Russian government is accused of hacking emails circulating among senior members of Hilary Clinton's campaign team to support President Trump's election in 2016. This was not the first time the United States was the target of massive cyber espionage: The Chinese government is believed to have gained sensitive information on 22.1 million US government employees through “cyber intrusions” in 2014. This Article will examine whether cyber espionage of this kind is unlawful under public international law and will conclude that it is. Specifically, such espionage can result in a violation of territorial sovereignty and will likely violate the principle of non-intervention in the internal affairs of other States. Yet, based on the controversial “clean-hands-doctrine,” past US actions in the realms of cyber espionage and intervention may well invalidate any claims it asserts against Russia or China.

Paradoxically, at roughly the same time in the Netherlands the amendment bill to introduce constitutional review by the judiciary of acts of parliament lapsed in 2018, the State Commission on the Parliamentary System recommended that such review be introduced. This Article analyzes Dutch exceptionalism on the topic of prohibiting constitutional review and comes to the conclusion that it cannot be justified. Focusing on the nature of constitutional change in the country, the recommendation is made that the quest for reform should start with the courts, and not with the constitutional legislature, as has been the case to date.

[Editors’ Note: This is the fourth consecutive article published in German Law Journal since July 2004 that is dedicated to the ongoing debate over the fate and prospects of the German model of Capitalism, welfare policy and corporate governance. The 22 July 2004 acquittals of all six defendants in the criminal proceedings against former Mannesmann CEO, Klaus Esser; Deutsche Bank's CEO (Vorstandssprecher) and then Member of Mannesmann's supervisory board, Josef Ackermann, and other members of Mannesmann's Supervisory Board have, once more, highlighted to German, European and International observers the particular features of law and politics in “Germany Inc.”, “Rhenish Capitalism”, or “Rhineland Capitalism”. As begun in the aftermath of Josef Ackermann's inthronization at the head of Deutsche Bank in May 2002 (exactly two years and two months before his acquittal before the Landgericht Düsseldorf) and Ackermann's subsequent transformation of the Board's control structure, German Law Journal has published several contributions to the ongoing changes in German corporate governance and its embeddedness within the specific German economic and legal system (see http://www.germanlawjournal.com/article.php?id=156). In the Journals July issue, Peter Kolla, a law student of Osgoode Hall Law School of York University in Toronto, meticulously traced the background debates to the closely observed criminal proceedings in the Mannesmann aftermath (http://www.germanlawjournal.com/article.php?id=460), and in our August issue, Jürgen Hoffmann, Professor of Sociology in Hamburg, surveyed the current interdisciplinary debate over the future fate of so-called Rhineland Capitalism and reconstructed Germany's recent history in an international context of globalization and privatisation (http://www.germanlawjournal.com/article.php?id=485). Also in the August issue, Max Rolshoven, writing his Ph.D. in law at the University of Münster, offered a first assessment of the acquittals in the Mannesmann case (http://www.germanlawjournal.com/article.php?id=480). In the article, published here, Professor Christopher Allen of the University of Georgia further deepens this inquiry from an economic point of view, while placing the contemporary debate over the possible end of Rhineland capitalism in the historical context of Germany's development in the 20th Century. The Editors of German Law Journal are very pleased and honored to be able to provide for a further forum for this important debate, bringing together lawyers, economists, political scientists and sociologists, for a much needed exploration of the historical and political origins as well as of the legal framework of Germany's much critizised and, at the same time, ardently praised system of corporate governance and industrial relations. We invite our readers to contribute to this debate, which has so far found too little resonance in Germany itself. The Editors.]

In Europe, issues concerning religious freedom are hotly debated. Many courts had to consider cases concerning infringement of religious freedom. This Article will focus on three examples: Headscarves, burqas, and crucifixes. Often, the interests of members of minority religions have lost in European courts and European constitutional courts. This is particularly true considering the decisions of the European Court of Human Rights. The European Court of Human Rights upheld bans on headscarves for students in universities and public secondary schools, as well as for teachers in public schools. The Court also accepted bans on full-body veils worn in public areas. Finally, mandatory crucifixes in public schools have been deemed to conform to the standards set by the European Convention on Human Rights. In all of these cases, the European Court of Human Rights has not adequately construed religious freedom as a strong right.

This is where the work of Ernst-Wolfgang Böckenförde comes in. Böckenförde has thoroughly discussed the proper role of religion in a democratic society. Coming from a theoretical starting point, he developed an understanding of religious freedom as a strong right. He also explained why State neutrality should be understood in terms of open neutrality. Both perspectives help to more fully explain the scope of religious freedom.

Within the Council of Europe, the relationship between the ECtHR and the member states is crucial for the survival and effective functioning of the Court. The ECtHR is currently overwhelmed by applications, the bulk of which emanate from a relatively small number of states, notably Russia, Rumania, Turkey, and the Ukraine. The backlog of cases will soon be toppling the vertiginous mark of 160,000, the adjudication of which alone would take the Court more than six years. The sheer number of cases exemplifies the system's urgent need for reform. Lately, discussions have been heavily influenced by considerations of subsidiarity, which the earlier Interlaken Declaration-as well as the recent Brighton Conference-emphasized as the key for the future relationship between the ECtHR and member states. Discussions about the principle's proper role in the relationship between member states and the ECHR, however, are far from over. This is due to questions regarding the principle itself, as well as to the factual realities dominating in the ECtHR-national court relationship. The principle often focuses on a strict separation of competences at two different levels, the national and the international, and many understandings of that principle require that the two levels stand in a more or less hierarchical relationship. This is difficult to assume in the Council of Europe context, where, compared to the EU, neither the doctrine of direct effect nor the principle of primacy in application reigns. Moreover, Strasbourg's emphasis on subsidiarity appears to focus on the responsibility of the member states to remedy human rights violations. In line with that argument, scholars have opined that the ECHR system should focus on an approach in which the ECtHR would be involved only if there are good reasons to depart from interpretation at the national level. Nonetheless, others recently doubted the overall usefulness of such an understanding of subsidiarity, since those member states responsible for the lion's share of new applications to the ECHR often neither possess a functioning judiciary nor functioning judicial or executive institutions, in general.

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

Critiques of Robert Kagan's recent, inflamatory work on the nature and state of transatlanticisim seem to come in three forms: material, analytical and emotional. By “material” I mean critiques of the fundamental and more or less obvious facts and structures out of which he has spun his claims. These facts amount to little more than the less than revelatory reminder that the U.S. devotes considerably more resources to security and defense spending than do Europeans. Critiques of Kagan's work at this level are pointless. At least on this much, Kagan has it right: we are now all too familiar with the staggering statistic that reveals that American security and defense spending is equal to the total of the expenditures of the next twenty countries.

In the last fifteen years, the legal fight against bribery and corruption has evolved from the solitary effort of the United States with its Foreign Corrupt Practices Act (FCPA), 15 U.S.C. §§ 78 et seq., to a global legal endeavor. During the same period of time, corporations have become increasingly engaged in transnational deals that require them to understand their obligations under a web of anti-corruption regulations. The stakes for businesses are high: fines can range in the tens of millions of dollars and individuals found guilty of corruption may be imprisoned for life.

On 9 October 2001, the European Court of Justice dismissed (1) a challenge by the Netherlands with the support of Italy and Norway against the Community Directive on the legal protection of biotechnological inventions. (2) Although the Biotech Directive relates to a wide range of public concerns and the Application for its annulment was based on a half-dozen different pleas, the following article will focus on the case as it relates to European Community treaty limitations. It will critically examine the perspectives on the principles of harmonisation and subsidiarity presented in the Application, the Advocate General's Opinion and the Court's Judgment within the broader context of the Community/Union's past and future development. The examination will reveal that in this case the Court has foregone a good opportunity to delimit 'positive integration'. (3) It could have made an important contribution to the on-going discussion about power-sharing between the national and supranational levels. While the judgment does strongly affirm the positive integration paradigm, the margins of the EU's legislative policy competences remain blurred due to its oft-opaque reasoning. The judgment raises, directly and indirectly, as many questions as it answers.

Critics of the Turkish interpretation of secularism, laiklik, describe it as authoritarian and repressive. Indeed, rather than establish state neutrality toward religion, laiklik historically entailed state control of Islam, the religion of the vast majority of the Turkish population, and the exclusion of religion from the public sphere in an effort to control religious belief and identity. Many, including leaders in the ruling AKP, assert, though, that recent reforms herald a move away from this model of control toward a secularism defined by state neutrality toward religion. To determine whether this transformation is actually occurring, I evaluate, based on Turkish language sources, the recent reforms under the AKP using the framework of the secularized state described by the German legal scholar Ernst-Wolfgang Böckenförde. Because of its significant role in implementing Turkish policies toward religion, I evaluate these reforms by analyzing developments in the programming and messaging of the Directorate of Religious Affairs (Diyanet) under the AKP. I find little evidence that laiklik is transitioning to a state neutrality toward religion. Rather, the AKP has coupled a greater presence of religion in the public sphere with expanding state authority in religious programming and messaging. Although these reforms reflect a transformation in Turkish nation-building policies, they maintain the state control of religion that separates laiklik from neutral secularism.

The first directives regulating the use and trade of genetically modified organisms (GMOs) were adopted at the Community level in 1990. These acts formed a core of the Community gene technology legal regime and harmonised the authorisation procedures prior to both contained use and deliberate release of genetically modified organisms. Accordingly, no GMO may be placed on the European Union market without obtaining a written consent for it and only after an appropriate environmental risk assessment has been carried out. Under the old Deliberate Release Directive 90/220, 18 GM products were allowed to be placed on the Community market following either the Commission decisions or Member States consent and over 1000 were notified to the Member States authorities for experimental purposes.

On April 12, 2005, the Bundesverfassunsgreicht (German Federal Constitutional Court) ruled that regulations in the Strafprozessordnung (StPO – Code of Criminal Procedure) concerning police use of global positioning systems (GPS) did not violate the Grundgesetz (GG – German Constitution or Basic Law) so long as the investigators did not use the technology in conjunction with other surveillance methods that could lead to the construction of a personality profile of the suspect observed. The following comment examines the facts of the case and evaluates the Court's decision in detail.