Chapter 13 is a closing epilogue that summarizes the book’s thesis, namely, that the German legal system is the site of encounters amongst a variety of legal traditions. To animate and illustrate that argument a final time, an article discussing the Common Law and Civil Law characteristics of German constitutional law is presented for discussion.

Dean John Wade, who replaced the great torts scholar William Prosser on the Restatement (Second) of Torts, put the finishing touches on the defamation sections in 1977.1 Apple Computer had been founded a year before, and Microsoft two, but relatively few people owned computers yet. The twenty-four-hour news cycle was not yet a thing, and most Americans still trusted the press.2

The laws of defamation and privacy are at once similar and dissimilar. Falsity is the hallmark of defamation – the sharing of untrue information that tends to harm the subject’s standing in their community. Truth is the hallmark of privacy – the disclosure of facts about an individual who would prefer those facts to be private. Publication of true information cannot be defamatory; spreading of false information cannot violate an individual’s privacy. Scholars of either field could surely add epicycles to that characterization – but it does useful work as a starting point of comparison.

In the spring of 2022, visitors to the Smoking Gun website would find a challenging “game, where [one’s] wasted time [was] well spent.”1

Coordinated campaigns of falsehoods are poisoning public discourse.1 Amidst a torrent of social-media conspiracy theories and lies – on topics as central to the nation’s wellbeing as elections and public health – scholars and jurists are turning their attention to the causes of this disinformation crisis and the potential solutions to it.

This chapter builds upon Gary Jacobsohn’s work conceptualizing constitutional identity as characterized by contestations, rather than consensus. I argue that once we abandon the mythical, imagined creature called ‘We, the people’, we find a society that is far less cohesive and, often, far less agreed or agreeable about certain fundamental ideas. Within this realistic view of society, constitutional disharmonies and contestations make more sense. This chapter drills down on how these constitutional disharmonies and contestations can be understood as competing claims about constitutional identity. I look at the modalities of disharmonies and the narratives that constitutional actors employ in relation to ‘constitutional identity’ and identify two modes of argumentation that challenge extant claims about constitutional identity: ‘constitutional mis-identity’ and ‘constitutional dis-identity’. These two modes of argumentation help illustrate the dynamism of this contestation over constitutional identity. Through a case study of the state-religion contestations within two seemingly divergent constitutional systems, that is, Malaysia and the United States, I show how the framework of dis-identity and mis-identity allows us to better parse through the different forms of contestations over the centrality of religion in their respective constitutional identity.

The familiar description of fiduciary law erases European and US imperialism. There is no discussion of the ways in which fiduciary law framed imperial struggles over political and economic power. There is no mention of the roles that fiduciary law played in various European empires and the US Empire between the late fifteenth century, when imperial expansion began, and the time of rapid decolonization in the 1960s. This chapter is a summary of a political economy of fiduciary law and imperialism that I hope to develop at length and in detail. My argument is that the familiar description of the economic structure of fiduciary law is incomplete. So too is the autonomy-enhancing account of fiduciary law. Fiduciary law, I want to argue, may enhance exploitation to facilitate market exchange. It provided an ideological justification for imperial expansion in the interests of opening up trade between peoples. Fiduciary law, moreover, played institutional roles in the financing, administration, and oversight of imperial exploitation and the facilitation of trade among those who benefitted from it.

This chapter examines section 117 of the Australian Constitution, which prohibits States from discriminating against residents in other States. Section 117 is a peculiar provision. It is not a limitation on power that invalidates offending laws: it confers an immunity on some individuals (namely, those who are Australians resident in a State, but not those who are non-Australians resident in a State or anyone resident in a territory or overseas) from offending laws. The basic methodology for determining whether section 117 applies involves a comparison of the position of the plaintiff in two scenarios. The first scenario is the actual situation of a plaintiff. The second scenario is the hypothetical situation of the plaintiff being a resident in the State alleged to have discriminated against the plaintiff. If the treatment of the plaintiff in both scenarios by the State would be the same, then there is no discrimination and section 117 does not apply. If the treatment of the plaintiff in both scenarios would be different, then there is discrimination on the ground of State residency and section 117 renders the plaintiff immune from the offending law.

This chapter examines the external affairs power. Section 51(xxix) of the Australian Constitution grants the Commonwealth Parliament power to make laws with respect to ‘external affairs’. The external affairs power has three key components and is both a subject-matter and purpose power. The external affairs power empowers the Commonwealth to make laws with respect to the subject-matters of: (1) international relations; and (2) matters geographically external to Australia. The external affairs power also empowers the Commonwealth to make laws for the purpose of: (3) implementing Australia’s international legal obligations. The power has enabled the Commonwealth to regulate matters as diverse as aviation safety standards, racial discrimination and terrorist activity.

This chapter presents an introduction to Australian constitutional law. This chapter begins by examining the various forms a Constitution can take and the purposes a Constitution may serve. This chapter also examines the process by which Australia achieved constitutional independence from the United Kingdom. This chapter considers the more conceptual questions of why the Australian Constitution was binding in 1901 and why the Australian Constitution is binding today. This chapter also considers a number of key principles underlying the Australian Constitution: the rule of law, federalism, responsible government, and parliamentary supremacy. This chapter concludes with a consideration of the place of Aboriginal and Torres Strait Islander peoples in Australian constitutionalism.

This chapter examines an implied restriction on power: the implied freedom of political communication. The Australian Constitution establishes a system of representative and responsible government. The High Court has explained that because freedom of political communication is necessary for such a system to function it follows that laws that impermissibly burden communication about political matters must be invalid. The High Court has developed a three-stage framework of analysis for assessing the validity of laws challenged for breach of the implied freedom. That framework requires examining whether the law has the effect of burdening political communication, whether the purpose of the law is legitimate, and whether the operation of the law is proportionate. The High Court has been clear that the implied freedom is a restriction on power, rather than an individual right, and that it protects only communication about governmental and political matters rather than freedom of speech more broadly.