The Basic Law, whose 60th anniversary we celebrate today, is not identical with the Constitution that was enacted on 23 May 1949. In the sixty years of its existence, it has been amended fifty-four times. Further amendments are under way. Many amendments concerned more than just one article. A little more than half of the 146 articles of the original text still read as they were framed in 1949. However, twenty-six of these unchanged articles are part of the “Transitional and Concluding Provisions.” A number of them were limited to one singular act of application, such as Art. 136 I (“The Bundesrat [Federal Council] shall convene for the first time on the day the Bundestag [national parliament] first convenes.”), and lost their normative value with the completion of the given act. A little less than half of the original articles, and the Preamble, have been subject to amendments; some of them several times. The forerunner is Art. 106 (apportionment of tax revenue), with six amendments. In addition, forty-seven articles have been added to the original text, some of which were repealed later.

The urgency of the global climate problem has prompted an increasing turn to the courts to accelerate action. While still a relatively new phenomenon, “strategic” climate cases have been on the rise since 2015. Litigants in these cases aim to produce ambitious and systemic outcomes. However, with both time and resources limited, how might we best discern which cases have the greatest prospects of achieving cut through in the policy and public debate, and accelerating climate action? This Article contributes to developing literature evaluating the “recipe for success” in strategic climate claims. It provides a comparative analysis of three recent, high-profile wins in climate cases from Australia—Sharma—, Germany—Neubauer—, and the Netherlands—Shell—, examining their commonalities to give insight into the ingredients for successful strategic climate litigation. Our analysis shows how the three cases combine careful, strategic planning, with legal imagination and innovation to generate outcomes that heighten their capacity for broader impact. Evaluating the success of these types of prominent climate cases provides important guidance for future case design.

Constituent power is a helpful component of constitutional theory because it provides a conceptual and potentially normative explanation of how a new constitution can be made without any existing legal authority to do so. Contemporary theories of constituent power, however, unhelpfully treat constituent power as a fictive entity, typically the people, that subsists through time. This predominant account of constituent power fails adequately to explain examples of constitution-making and also lends support to the populist claim that a unitary and unchanging people has an immanent but continuing role as a constitutional actor superior to the constitution itself. This enables populist leaders to rely on prevalent understandings of constitutionalism to support the sidestepping and/or removal of constraints on their power. In this Article, I trace the connections between mainstream theories of constituent power and the academically peripheral claims of populist constitutionalism. I argue for a different understanding of constituent power as a capacity that, in principle, may momentarily be exercised by any entity. This explains how a new constitution can unlawfully replace a pre-existing constitution yet come to have lawful authority itself, without implying the diachronic existence of the constituent power as an entity. I illustrate this understanding of constituent power with reference to the constitutional development of Taiwan and Ireland. These examples show—contrary to the predominant account of constituent power—that constitutional systems may be created without the exercise of constituent power and that constitutional law can play an important role in constructing an entity capable of exercising constituent power. Seen in this way, popular references in preambles are important not for their account of how a constitution was made but rather for their account of whom a constitution is for. This account of constituent power undermines core claims of populist constitutionalism. But it also provides a salutary lesson for liberal constitutionalists: a constitution adopted for a people must broadly serve the interests of that people.

The Financial Times billed the Mannesmann trial, which began on January 21, 2004 and where final arguments by the prosecution and by the defense are scheduled for June 30, July 8 and 14, 2004 before the Regional Court (Landgericht) in Düsseldorf, as the “biggest criminal trial in German corporate history.” The backdrop for the trial was the January 2000 hostile takeover of Mannesmann AG, the once massive German telecommunications and engineering company that employed over 130,000 people. Vodafone Airtouch, the British telecommunications giant, had initially offered €101 billion for Mannesmann but only succeeded in their takeover by sweetening the price to €178 billion. Consequently, the Mannesmann takeover is still the largest the world has ever seen. The six defendants include towering figures in corporate Germany, most notably Josef Ackermann, the current chief executive of Germany's largest bank, Deutsche Bank and former member of Mannesmann's supervisory board (Aufsichtsrat). The enormity of the companies and personalities involved stretched the trial's magnitude beyond the confines of this single takeover. Reporting for their global business audience, the Financial Times conflated the trial to an indictment of Germany's entire system of capitalism. “What is on trial here is the free market itself,” wrote Wolfgang Munchau, their continental European business columnist.

In October 2005 the German Law Journal published my article which reviewed the major characteristics of German federalism, some common criticisms, and efforts to reform the system in recent decades. These efforts culminated in a Federalism Commission (Kommission von Bundestag und Bundesrat zur Modernisierung der bundesstaatlichen Ordnung [KOMBO]) that was formed in the fall of 2003 and met until December 2004, when the co-chairs announced that the Commission was unable to reach agreement on several issues, in particular the respective roles of the federal and Land (state) governments in higher education policy. The failure of federalism reform was lamented by most observers, and many regretted especially the fact that the Commission had agreed on far more issues than those on which it had disagreed.

Just one day after the attacks of September 11, 2001, the German minister of the interior, Otto Schily (SPD), demanded a new security concept. Immediately the existing security laws and precautions were placed under special scrutiny in search for any sorts of deficiencies. The results of these reviews were two legislative initiatives, termed “security packages” or “anti-terror packages,” which changed or altered numerous existing statutes. The new security laws contain a number of infringements into fundamental civil rights and liberties. The legislative process thus had to raise the issue of the relationship between security and civil liberties and weigh the balance between the protection of individual rights and collective security. This, however, does not constitute a new challenge for the German legislature. The collision of security interests with individual civil liberties has caused a legal problem in Germany for some time. September 11 might constitute a political watershed, but in the context of civil liberties in Germany, this date does not represent an important mark. The current measures have to be understood within the context of an at least thirty-year-long period of continuous weighing between security and freedom.

Although over the last thirty years an increasing number of scientific articles and books with diverse approaches have been published on the practice of constitutional adjudication, several methodological problems still prevail. The main deficiency of the systematic empirical research on constitutional adjudication consist in an unsophisticated dichotomous approach that separates the merely positive and negative decisions of constitutional courts, i.e. decisions that concluded in declaring the constitutionality or unconstitutionality of a given legislative act. This approach has been deeply inconsistent with the worldwide practice of constitutional adjudication, since the latter shows a widespread differentiation of judicial decisions over the last thirty years. In this study, we have elaborated a more sophisticated methodology for systematically mapping the manifold reality of constitutional adjudication, and measuring the strength of judicial decisions. In order to fit the research to reality, we have elaborated a scale to measure the strength of judicial decisions. This scale seems to be an appropriate tool to answer the main descriptive research question of our project: to what extent have decisions of constitutional courts constrained the legislative's room for maneuver? The present methodological paper focuses on the problem how to measure the strength of judicial decisions vis-à-vis the legislation and shows, by means of the first results of a pilot project, how this new methodology might be applied.

Since the 1980s Germany has developed a subtle and complex data protection jurisprudence originally designed to protect individual data subjects from rights abuses by market actors. However, the rights aggressor has increasingly been German and European law enforcement authorities. This evolving corpus of law also exhibits a singularly-German mindfulness of the historical significance of abrogating fundamental rights within constitutional democracy.

Since 1990, both the U.S. and Germany have substantially reformed their corporate governance regimes as part of an emerging paradigm of international finance capitalism increasingly dependent on securities markets and private shareholding. Corporate governance reform and the emergence of finance capitalism, however, present a double paradox. First, the development of financial markets and the increasing importance of market relations, often linked to the diminution of state power, have been accompanied by a substantial and ongoing expansion of law and regulatory capacity into the private sphere to boost shareholder protections. Second, center-left parties in both countries took advantage of economic crises to press for pro-shareholder reforms against center-right opposition allied with managerial elites. This article explains these developments by analyzing reform processes in United States and Germany over the past decade. It argues that changing economic conditions empowered reformist state actors, and that they have played a central and largely autonomous role in driving the substantial institutional change underway in contemporary capitalism. The analysis also suggests that political conflict over corporate governance is likely to intensify, on the right and the left, as it impinges on the basic allocation of power within corporations and thus the political economy.

In socially responsible investment terms, Germany is a contradiction. The country is considered by many as one of the pioneers of post-war environmentalism and social reform. Yet, German financial institutions are amongst the European laggards in adopting environmentally and socially informed approaches to investment. This article identifies a variety of legal, institutional and attitudinal factors which hinder the growth of the German SRI market. Its paltry size does not reflect evidence of any specific disinterest among German investors in social and environmental issues. Rather, it arises from a combination of structural impediments, particularly the institutional arrangements for German pension schemes that hinder their participation in financial markets, regulations which encourage conservative investments, and investors' preference for low-risk assets and avoidance of shareholder activism. Legal and institutional reforms over the past decade have in theory created better opportunities for SRI in Germany, although they have yet to engender significant changes in the market.

This article analyses the legal, political and moral basis of citizenship in the contemporary world. India is analyzed here as a case in point of a general category of ‘changing societies’ emerging from colonial or communist rule. Citizenship, which used to be considered a part of the general problem of nation-building, has increasingly acquired the character of a salient problem in its own right. This change in perspective has come about as a consequence of globalization and the world-wide diffusion of basic norms of human rights. In the contemporary context, with regard to the problems of endangered minorities whose lives, dignity and welfare are at risk – be it in Kashmir or Kosovo – the world at large considers itself morally bound to intervene, if not militarily, then at least in terms of the invocation of law and good conduct. As such, from the point of view of the post-colonial state, both its national sovereignty and legitimacy are contingent on its success with turning its whole population into citizens. This, the article argues, is contingent on the ability of the post-colonial state to gear its laws, courts and administration towards effective management of identity and the constitutional incorporation of core social values (see Figure 2 below). With regard to ‘making citizens out of subjects’, the Indian ‘experiment’ holds important lessons for other states, ensconced in multi-cultural societies.

The EU faces one of the deepest crises since its formation. A dangerous rule of law backsliding in several Member States undermines the Union’s common values and puts Europe to the test. This raises the question of how to substantially address violations of EU values in judicial proceedings before the Court of Justice. Unfortunately, relying on fundamental freedoms, EU secondary legislation and even the Charter will not help much to resolve this value crisis. This Article takes a different path and calls for engaging with Article 2 TEU itself. Yet this proposal rests on a crucial premise: The judicial applicability of the values enshrined in Article 2 TEU. Based on recent jurisprudential developments, this Article will elaborate a framework for the operationalization of Article 2 TEU values and demonstrate how their judicial applicability can be construed. The judgments of Associação Sindical dos Juízes Portugueses, Minister for Justice and Equality (“L.M.”) and Commission v. Poland will be at the heart of this proposal.

It can only seem impolite to speak about network failure in the presence of Karl-Heinz Ladeur, who has been insisting that the law needs to change in order to address the transformation of the organizational society into the network society. Alas, here I stand; I can do no other.

The notion of constitutional identity is a recent and enigmatic notion in constitutional law and theory. This Article demonstrates that constitutional identity—understood as a certain constitution-related self-identity of a nation or people—can be constructed from the text of a constitution, its interpretation and its application. However, constitutional identity is nothing more and nothing less than a constructed reality that can be regarded as a constitutional state's restless soul. It exists only as a constructed, simplified, imagined reality that will most likely also be contested and subject to change. Constitutional identity and the reliance on it in particular by national courts should therefore not be regarded as something sacred and absolute that can be compared to an imagined stable heart. Instead, constitutional identity should be treated with caution.

The recent reforms of the Polish Judiciary have sparked a lively debate in Europe on the importance of judicial independence. This Article deals with the new Polish system of selecting and appointing judges and critically assesses it in the light of European standards for judicial appointments. It then compares the new Polish system to the German system of selecting judges, which has been advanced as a point of reference for the reform by the Polish government. Finally, the Article reconsiders and challenges some of the established concepts of German constitutional law as to the selection of judges and judicial legitimacy.

The Article was closed on September 2, 2017 and accepted for publication. Subsequent developments could be included until March 15, 2018. The authors would like to thank Judge Thomas Guddat and the Deutsch-Polnische Richtervereinigung (Association of German and Polish Judges) for providing valuable details on the reforms in Poland.

There has been much discussion of the proper scope of the European Treaty articles on free movement. Central to this discussion has been a debate about the best concept around which to build free movement law, and in this debate “discrimination” has been opposed to “market access.” It is, however, the central thesis of this paper that the opposition is largely false. In general, measures which affect all market actors equally do not, as a matter of economic fact, impede market access. The non-discriminatory measures which impede market access, which some have felt it so important to bring within the Treaty, are therefore more mythical than real. This argument is made with reference to competition law and theory concerning barriers to market entry.

A sense of cohesion grounded in a common identity is widely believed to be a prerequisite for a functioning democratic European polity. If the European Union is to master successfully the tasks assigned to it in the Constitutional Treaty and, using a non-consensual procedure, decide on policies that concern the security of its citizens or have significant distributive effects, then a sufficiently thick common identity is believed to be necessary both to legitimate and to ensure the functioning of the polity in the long term. There is little doubt that such an identity is currently missing. The question is what such an identity should be and whether the prepolitical pre-requisites for the development of such an identity exist. Are there historical experiences and accomplishments that enable European citizens to understand themselves as having suffered a common past and which animate them to see themselves engaged in the construction of a common political future? What are the appropriate narratives around which a European identity could, over time, develop? What should the focus of a self-conscious politics of memory be? What are the implications for the role and structure of European historiography, in particular for the European legal and political historiography?

Several fundamental questions concerning internet law come to a head over search engines. There are trademark cases, issues about the protection of minors and questions of liability. However, as far as we know, the fundamental role that search engines play in public communication based on the World Wide Web has not yet been subjected to any legal analysis. This seems to leave a significant gap in our knowledge, given the fact that the market for search engines tends to be monopolistic.

The General Council of the Judiciary is the main institution of judicial self-government in Spain. It was established to ensure the external independence of the judiciary, and in particular the independence of the judiciary vis-à-vis the executive branch of government. To what extent does the Judicial Council manage to fulfill its goal? First, the evolution of the Judicial Council will be presented in order to understand the principal reforms and reasons behind its creation. Next, the impact of the Judicial Council upon judicial independence, as well as accountability, transparency, and public confidence will be critically examined in order to assess its contribution to judicial legitimacy. In the end, it will be argued that the politicization of the Judicial Council has hindered it from protecting judicial independence from partisan interests, and has contributed to undermining public confidence in the judiciary.

There is no uniform approach to assessing scholarly publications in legal research. Peer review is still the most accepted form, but the popularity of bibliometrics, such as the impact scores of journals and the citation scores of individual articles is increasing. However, there is no ranking of European law journals and none is likely to materialise any time soon. Comparing the UK, Belgium and the Netherlands, we will demonstrate why both peer review and the use of metrics have serious shortcomings. We believe it is necessary to think about such alternatives as more attention for methodological justification in legal research, more clarity from editorial boards about the quality criteria being used to approve or reject submissions, and more emphasis on standards for different forms of legal scholarship. Last but not least, we call for a Europe-wide debate on the pros and cons of different systems of research assessment, rather than let every country reinvent the wheel.