The case of Carles Puigdemont underlines that European criminal law is in a crisis of confidence. The Higher Regional Court of Schleswig-Holstein has rejected a Spanish European arrest warrant for the criminal offence of rebellion because it lacks double criminality. It applied German law de lege artis without, however, questioning the European legal framework. The case would have provided an opportunity to refer the matter to the European Court of Justice for a preliminary ruling in order to further specify the European law criteria of double criminality. This would have been the adequate legal response to a politically explosive case. In the end, the Spanish judiciary sees itself disavowed and the system of the European arrest warrant called into question.

Quantitative approaches are gaining popularity in German legal research. The analysis of large corpora of legal text may be supported by text mining methods. In this study, we employ topic modeling—which aims at retrieving the “topics” of a corpus—to identify words related to certain areas of law present in the case law of the German Federal Constitutional Court (FCC). This information is then evaluated by legal experts and used to show significant content-related differences between the two most frequent types of proceedings before the FCC. Technical and somewhat unstable areas of law, such as tax law, social law, and civil service law, are significantly overrepresented in referrals for judicial review, whereas areas of law characterized by well-developed case law and judicial doctrine appear substantially more often in constitutional complaints. This insight may come as a surprise due to the fact that the Court’s material scope of review is identical in both types of proceedings. Our considerations do not, however, seem to apply to private law. Though we recognize the methodological and epistemological concerns regarding the heuristic nature of topic modeling, this study exemplifies its productive use in complementing, rather than replacing, more traditional techniques of analysis in legal studies.

Multiple laws and regulations in Western Europe have been enacted on the premise that headscarves and face veils constitute an existential threat to the constitutional identity of the respective legal systems. Thus, the logic of militant democracy as a justification for restricting fundamental rights have been applied in order to restrict the freedom to manifest one’s religion. Yet, the politicymakers claiming to defend the constitutional identity through militant democracy have not been able to prove the existence of a concrete, imminent threat against the state from the women who wear headscarves or face veils. Nonetheless, the European judiciaries have taken the political claim at face value and allowed the restrictions without compelling the political decision-makers to provide substantive justifications. Thus, the cases of headscarves and face veils offer a prism, through which we can study fundamental paradoxes of liberal democracy and constitutionalism.

The following reflections, that will focus exclusively on the European primacy clause in the light of the Statement by the Constitutional Court no. 1/2004 of 13 December, in particular with regard to its scope as regards the Spanish Constitution itself, may take as a starting point the conclusion contained at the last paragraph of FJ 4 of the Statement, which states as follows:

“In the scarcely-conceivable event that in the ultimate functioning of European Union Law this Law were to result irreconcilable with the Spanish Constitution, and without the hypothetical excesses of European Law with regard to the European Constitution itself being remedied by the ordinary channels provided for in the latter, ultimately the preservation of the sovereignty of the Spanish people and of the supremacy of the Constitution as it provides for itself could lead this Court to tackle the problems that would arise in such a case, and which from the current point of view are considered to be non-existent, by way of the relevant constitutional procedures”.

The Second Senate of the Bundesverfassungsgericht (Federal Constitutional Court) heard oral arguments on June 19, 2001, in the “NATO Strategic Concept” case. The parliamentary fraction of the Party of Democratic Socialism (PDS) in the Bundestag (Federal Parliament) brought the case to the Federal Constitutional Court as an Organstreitverfahren (dispute between federal organs), which permits one federal organ (in this case, the Federal Parliament as represented by one of its party fractions) to challenge the constitutionality of an action taken by another federal organ (in this case, the Bundesregierung [Federal Government - executive branch]). The Federal Government consists of a parliamentary coalition between the Social Democratic Party (SPD) headed by Chancellor Gerhard Schröder, and the Alliance 90/the Greens (Greens), whose most prominent figure in the Federal Government is Foreign Minister Joschka Fischer.

The ruling of the German Federal Constitutional Court in the Right to be forgotten II case is an example of constitutional pluralism in action. It demonstrates how a pluralist-minded court can elevate itself from and above the constitutional confines of its own legal order. By integrating the material standards of another legal order in its own review of constitutionality a national constitutional court contributes directly to the strengthening of the fundamental rights of individuals against the national authorities within the overall system of European legal order.

The main purpose of the preliminary ruling procedure is to prevent divergences in judicial decisions applying European Union (EU) law and to ensure the uniform interpretation of EU legal provisions across Member States. The procedure, introduced in the Founding Treaties, has provided a platform for the Court of Justice of the European Union (hereafter, the ECJ or the CJEU) to deliver seminal judgments that have progressively defined the relationship between national and EU legal systems, among others. The procedure has also helped the ECJ to develop fundamental principles of EU law, including direct effect, indirect effect (i.e., the interpretation of national law in line with directives) and primacy. Being one of the most important aspects of the EU judicial system, the procedure provided by Article 267 of the Treaty on the Functioning of the European Union (hereafter, TFEU) has had an immense impact on the harmonious development of EU law and the way in which national courts and EU courts interact and communicate.

This article focuses on contemporary theories of territorial rights in political and legal philosophy and explores their implications for the case of Crimea, focusing on three main accounts of territorial rights: Liberal nationalist, Lockean, and Kantian. The article advances the legal-political account of the “people” and its territorial rights as a promising approach to theorizing the corporate agents that have potentially valid territorial rights and claims. While normative theory does not yield a single unequivocal judgment that identifies one claimant as the solely justified territorial right-holder in Crimea, the application of general principles of territorial rights theory can help identify the pertinent considerations for the case, which clarify the normative implications of each potential resolution. While no party has an absolutely just territorial claim to Crimea, this article offers a qualified defense of the existence of a distinct “Crimean people,” defined by the distinct political history of Crimea and its long-standing legacy of autonomous legal-political institutions, which may constitute a shared political project for the culturally diverse population.

Criminal law is different, it is often said, from other areas of law in that it is rooted in and thus depends on national heritage to a great extent. This uniqueness is recognized by European institutions, as expressed by General Advocat Mazák in a case concerning the protection of the environment by means of criminal law:

“In many respects, criminal law stands out from other areas of law. Availing itself of the most severe and most dissuasive tool of social control – punishments – it delineates the outer limits of acceptable behaviour and in that way protects the values held dearest by the community at large. As an expression essentially of the common will, criminal penalties reflect particular social disapproval and are in that respect of a qualitatively different nature as compared with other punishments such as administrative sanctions.

In an international social rights debate disproportionately focused on English-speaking countries, redundant emphasis has been placed on justiciability. While constitutionalization does challenge stable relations between powers, especially in the post-colonial and developing world, solid insights for a workable interpretative method can be derived from continental Europe, where the difficulties typically associated with justiciability have long been settled. The constitutions of Italy, Germany, and Portugal take socioeconomic democracy seriously, tempering socialist claims and refuting libertarian stances, and have managed to spur a legitimate judicial increment of substantive equality. Through a threefold comparison, this paper describes the peculiarities of these fundamental texts across the spectrum of possible constitutional design choices, and draws from comparative constitutional caselaw to highlight a cross-national convergence on a set of interpretative standards. These blend together a strong safeguard of legislative discretion with justiciable minimal guarantees, and a value-assertive orientation of balancing coextensive with the integrationist function of constitutionalized social and economic rights.

Police powers of discretion to discontinue criminal proceedings are rather exceptional in Europe, where most Criminal Justice Systems are based on some kind of principle of legality. Germany and England may be regarded as contrasting examples for different decision-making-models on the question whether or not to prosecute an offender. Germany, with a principle of compulsory prosecution theoretically guiding the work of public prosecutors—compared to England, where already the police have significant powers of discretion when deciding about a case. In recent years, however, the differences between the practice of these principles seem to have vanished: Whereas some German federal states have started to involve police in prosecution decisions, policy makers in England try to restrain the traditionally wide discretion of police in dealing with cases of minor crimes. Interesting lessons that might be useful for future harmonization of European criminal justice systems can be drawn from the experiences in both countries.

This article focuses on the strategy to replace the UK Human Rights Act 1998 (HRA) with a home-grown Bill of Rights to lessen the influence of the European Court of Human Rights' case law. Without attempting to disregard the national-specific elements, the discussion of these questions is very relevant for all States confronted with the influence of Strasbourg. The tension between coherence, efficiency and autonomy is overarching. The article therefore approaches the issue not only from an outsider's perspective but also, where relevant, from a comparative constitutional law perspective. Both perspectives seem to be largely absent from the current (academic) debate. Firstly, this article analyzes the current relationship between the UK Supreme Court and the Strasbourg Court, which reveals that the judicial arguments in support of a mirror principle are not so much based on section 2(1) HRA, as they are, in the domestic courts' relationship with Strasbourg, on concerns about international obligations, hierarchy, effectiveness of the Strasbourg Court, coherence and efficiency. Internally, judicial arguments are founded on concerns about separation of powers, limited jurisdiction, and accustomedness to the precedent system. In the second part, this article focuses on the potential impact of a home-grown Bill of Rights on the current relationship between both courts; concluding that a home-grown Bill of Rights will most likely cause domestic courts to receive less latitude by Strasbourg and will not absolve domestic judges from the duty of taking into account the Strasbourg case law.

Recent criticism of American legal education has focused on its being theory-driven rather than practice driven, which either produces or reinforces a divide or gap between theory and practice. Yet two features of American legal education expressly draw upon experiential learning, one directly by sending students into experiential learning situations (legal clinics) and the other indirectly by bringing instructors who are engaged full-time in active practice into the classroom (i.e. adjunct faculty). If skills development is a feature of American legal education, to what degree can, or should, this be transplanted to other systems of legal education? Are American experiential techniques of legal education meaningful elsewhere?

In Germany, the possibilities of students to participate in and contribute to legal education are generally quite limited. Compared to the legal education systems in the USA and Canada, the course of studies is rather theoretical and quite anonymous. Communication between students, faculty staff and deans is rare, and classes are fairly big. As to the abstractness of the curriculum, several changes have been made to improve the situation. For example, a reform in 2003 was supposed to increase foreign language competence and provide for more specialization and practical relevance. However, the system can still (or again) be considered to be “under construction”. Many important skills are not being taught, and the awareness of the international, social and cultural contexts is largely neglected or lacking reference to the subject matter. There is an ongoing debate about further changes to the legal educational systems especially about the adoption of the Bologna Process. While some consider it inapplicable to the German system, others have already started transferring it at their university. Several federal states have meanwhile started endorsing a basic reform. However the next rulings will not be until 2011. Presently scholars, policy-makers in the field of education and economists face the challenge of devising strategies for legal education that meet the needs and interests of all “stakeholders” while being compatible with the traditional German system. Students are curious and concerned about the future of their curriculum. Their means of participation include a) passively evaluating teachings, b) actively engaging in a student parliament or self-governed student councils of a special field (so-called Fachschaften) and c) actively involving in student organizations.

In this article, I bring together three recent ideas from political theory and constitutional law. The first is the notion developed by Jürgen Habermas and Markus Patberg of a pouvoir constituant mixte. Complex polities such as supra-state federations should be understood as constitutional entities that combine two or more authorizing subjects. The default “mixed” conception is that of dual sovereignty, split between the federations’ member collectives and member individuals. The second idea is that of Stephen Tierney, that sub-state national societies should be seen as involved in struggles over constituent power. The third is the idea and practice of sovereignty referendums, which I illustrate by looking at the 2017 Catalonia independence referendum. I contend that, at a minimum, sovereignty referendums, especially lost ones, should be understood as strategies to bring about, shift or complement constituent powers, in achieving compound or mixed sovereignty. Finally, I venture into some ideas about the criteria of legitimacy for such endeavors, in distinguishing the activation of constituent powers from their articulation and exercise.

On June 26, 2001 the Bundesgerichtshof (Federal Court of Justice) handed down a new decision regarding the liability of experts towards third parties (Reg. No. X ZR 231/99). While the Court appeared to have taken a somewhat new direction, the latest judgement must be considered in the context of a steadily evolving jurisprudence related to the effect on third parties of contracts involving the transfer of expertise, especially in light of a third party's reliance on this expertise. Parties contracting for expert testimony or evaluation regularly do not, at least not explicitly, take a third party into consideration in their contractual dispositions. Problems arise, however, when in the performance of the contract a third party, often the buyer or a bank seeking an evaluation of a client's creditworthiness, substantially relies on this expert evaluation produced pursuant to the contract. Where the seller defaults, the bank (in this example) may attempt to directly sue the expert.

The following essay was the keynote delivered at the International Conference of the German Law & Society Association in Bremen, Germany, in March 2010. In seeking to understand the formation of the Association of the Sociology of Law it is important to be mindful of the context of the spirit of the 1960s and 1970s in which it arose. Sociology of law's beginnings can be traced to the start of the 20th century with especially Eugen Ehrlich, Max Weber, Hermann Kantorowicz, Arthur Nußbaum and Theodor Geiger. However, after nearly being wiped out under German National Socialism, it began to re-emerge slightly in the 1960s.

Since May 2004 Polish administrative courts have passed a great deal of judgments in which the law of the European Union (formerly European Community law) has played either the main role or a subsidiary role in the proceedings. This article seeks to examine how the above-mentioned courts comply with the expectations which are put on them by EU law and how they participate in the process of legal integration within the EU. In this context, the author scrutinizes how the national judiciary adjudicating in the administrative law area understands, interprets, employs and applies the systemic principles of EU law such as: supremacy, and (in) direct effect and effectiveness. In addition, the participation of national courts in the process of a dialogue with the Court of Justice of the European Union through the preliminary ruling procedure is captured. The analysis is not aimed at being exhaustive and focuses solely on the total impact of EU law on the national judiciary and the general trends in the judicial application of EU law, that is to say the overall reception of EU law and the dimension of the EU-friendliness displayed by Polish administrative courts.