In its 30 June 2009 judgment on the Treaty of Lisbon, the German Federal Constitutional Court stated that “there are no decisive constitutional objections to the Act Approving the Treaty of Lisbon,” but only as long as “the provisos that are specified in the grounds” are taken into account. Thus, in conformity with the terms of the judgment, the Court has made the constitutionality of the Act Approving the Lisbon Treaty dependent on an amendment of the Act Extending and Strengthening the Rights of the Bundestag (German Federal Parliament) and the Bundesrat (German Federal Council of States) in European Union Matters. One could also put it another way: The Act Approving the Lisbon Treaty is unconstitutional as long as the constitutional concerns specified in the judgment are not met.

Recently the German Bundesverfassungsgericht (Federal Constitutional Court) knocked on the European Union's door with its impressive judgment on the Lisbon Treaty, recalling all the weight of the German scholarship tradition steeped in the German dogmatic flavor: the attention to the history of sovereignty and the attempt to catch all the European Union constitutional system's life revealed the systemic approach peculiar to the German dogmatic scholarship.

There are many ways to theorize transnational law. As always, there is a mainstream, and there are “sidestreams.” However, it may be more interesting to consider from which direction such theories develop. Here, in appreciation of what the German Law Journal did to transnational legal conversations, I suggest to consider three directions in transnational legal studies: (1) theorizing from above; (2) theorizing from below; and (3) theorizing from inside. As you will see, much of the theories are in the German Law Journal (GLJ).

With considerable regularity, the established and functioning scientific apparatus is able to reshape itself, to confirm or change its course and the respective lenses of observation through the rationalization of themes, trends and through the identification of individuals and groups of scholars who are being associated with these developments. This exercise, leaving its traces in conferences, edited volumes and the formation of scientific associations, is largely centred around the formulation, assessment and defence of scholarly projects and tasks. The importance of such undertakings lies, however, in their ability to never let the forces of institutionalization, formalization and bureaucratization take the upper hand over the continuing diversity and curiosity that reigns beneath their surface. The awarding of academic honours and prizes themselves are part of the institutionalization of scholarly projects, but they come with the calming realization that, despite all the festivity, it is clear to everyone that there is no one who deserves the prize. There is in fact no prize recipient. What remains is the constantly nagging doubt whether curiosity and critical inquiry still govern our search, whether ears and eyes continue to be open.

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.

It is difficult to put a label on a historical period. Human history is full of variety, complexities and contradictory developments. Consequently, the precondition of grand theories of history is often their openness to unjustified simplification. On the other hand, some orientation is indispensable, and for this, general descriptions are helpful if one stays aware of their limited function and value. With this in mind it is possible to state that the post-war period is marked by what one may call a universalistic stance.

These are exciting times for European private law. After many years of research the publication of the Draft Common Frame of Reference in the form of the interim outline edition of 2008 and, in particular, of the Outline Edition in 2009, is set to change the landscape of legal education in private law. Although many universities are likely to continue a traditional curriculum based on national law, possibly with comparative influences, for some universities this will be an occasion to move from a comparative to more truly European curriculum. The change to a European-based curriculum is controversial in legal education as the need to train nationally qualified lawyers remains. However, there are some experiences with the setting up of a European-based curriculum that might demonstrate a possibility of how to do this.

The aim of this casenote is to depict the essential content of the German Federal Constitutional Court's Lisbon Case. Therefore, it is of mainly descriptive nature. It primarily addresses readers wishing for a brief overview before approaching the decision itself or particularly those who might like to avoid reading the ruling in its exuberant length. In order to keep this a straightforward contribution, large parts of the judgment had to be set aside and certain necessary simplifications had to be undertaken. I acknowledge these and commend readers to the other contributions in this special collection of the German Law Journal for varied and deeper treatments of the case.

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.

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?

When the German Federal Constitutional Court pronounced itself on the constitutionality of the Treaty of Lisbon, its general reasoning on the character of the European Union sounded familiar. In its judgment, the Court recalls that the German Basic Law is a Europe-friendly constitution: its Preamble and its Article 23, regarding European integration, allow, and in fact prescribe, Germany's participation in the establishment of a united Europe. However, the Court also stresses the paramount position of the member states, their peoples, and their national parliaments in the institutional architecture of the EU. Already in its Maastricht Case, the Court had put an emphasis on institutional guarantees regarding the conditions under which sovereign competences may be conferred upon the EU from its constituent member states. The Lisbon Case builds upon the Maastricht doctrine, but now adds concrete instructions to the German legislature: whenever the EU institutions wish to apply certain strategic decisions under the Treaty of Lisbon, the German government may agree to them only after the two national legislative chambers, the German Federal Parliament (Bundestag) and the German Federal Council of States (Bundesrat), have given their prior approval. The national statute that regulates this must (and will) be changed accordingly before Germany may ratify the Treaty of Lisbon. The strategic decisions in question mainly concern what the Court considers to be, or at least potentially to be, de facto treaty amendment procedures by which EU institutions may dynamically expand their competences or change decision-making rules without having to resort to the regular ratification procedure for new treaties. The most prominent example is the so-called passerelle (or simplified treaty revision procedure), allowing the European Council unanimously, and with the European Parliament's assent, to introduce qualified majority voting and co-decision in areas where this does not yet apply. National parliaments are informed six months in advance and each of them may cast a binding veto, but ordinary positive ratification in all member states is not required. Also for the application of the flexibility clause, allowing for EU action to attain EU goals in the absence of a specific legal basis, the German Constitutional Court requires prior bicameral approval by the national legislature. The Court rejects the idea of future treaty amendment by tacit consent, because that would undermine the prerogatives of the national legislature and, essentially, German sovereign statehood. At the risk of sounding corny, we may therefore dub the Lisbon Case “Solange III,” after the two previous Solange Cases, and summarize it as follows: As long as (or, solange, in German) the European Union is not a federal state but comprises constituent member states, the people, through the national legislature, must consciously legitimize European integration step by step. The partially enhanced flexibility of future treaty reforms envisaged under the Treaty of Lisbon is, as far as Germany is concerned, undone. But what about the other member states? Where does the Lisbon case put Germany on the European map of parliamentary democracy? How do the ratification procedures on which the German Court insists compare with the procedures of national parliamentary oversight as they exist in the rest of the Union? The present article shall put the envisaged German procedures in a comparative perspective. But first it shall reflect on some of the main features of the judgment itself.

As one of the commentators of Luhmann's oeuvre once rightly put it, “the occasionally authoritative gestures of Luhmann's writing may intimidate all those who do not also perceive his gentle touches of irony.” Luhmann's note at the end of his treatise, Law as a Social System, about law's future in the global society is one of those typical statements of Luhmann, characterized by this mixture of authoritative “coolness” with a touch of irony. Be that as it may, the master seems to be once again right with his prophecy-like statement: Law is indeed undergoing a transformation, the results of which might soon let law appear as nothing more than a “European anomaly, which might well level off with the evolution of global society.”

Many warm thanks for the opportunity to participate in this seminar honoring the German Law Journal. I am especially pleased to be addressing you here at the Free University, which generously hosted my stays in Berlin as both a Humboldt and a Fulbright Scholar.

For my grandparents Europe meant peace, for my parents prosperity, for my generation it stands for some practical advantages like traveling without border controls and stipends to study abroad.

I have come to believe, over the last two decades of my consulting work outside of the United States, that the origins, growth and acceptance of clinical legal education throughout the world is the greatest single innovation in law school pedagogy – and certainly in student learning – since the “science” of the Socratic, case method was brought to Harvard by Christopher Columbus Langdell. I remember distinctly when I came to this conclusion. It was around the time of a conference held at beautiful Arrowhead Lake, in California, hosted by UCLA Law School and the University of London at the university's conference facility in the mountains of San Bernardino County, startlingly close to Los Angeles. The event was the Sixth International Clinical Conference, held in October of 2005, and it was the first truly international event in that series. Yes, it was an “international” clinical conference, and prior events had provided participants with something of an international flavor, and the event was sponsored by British and American law schools. This, however, was something new, something different.

The concept of “network” has become the most central concept within the work of Karl-Heinz Ladeur (KHL). It is an omnibus concept which he uses to extrapolate insights at all levels: It is used to provide a general framework at the level of Gesellschaftstheorie (social theory) in the sense that it provides insights into the general structure of society and thereby into the context within which legal processes unfold. At the level of organizational theory it provides a basis for understanding the transformation of organizational structures as it unfolds through the breakdown of hierarchy and the boundaries between the private and the public, just as the network concept plays an important role in its attempt to formulate a legal theory which is adequate for a society which, according to KHL, has become postmodern.

Transnational Commercial Law is an interdisciplinary research field which is concerned with the institutional organization of global economic exchange processes. From the perspective of institutional economics there are basically four different types of governance mechanisms which may be employed to institutionally support exchange. These are (1) uniform governance, where exchange is organized outside the market as intra-firm-trade and problems are solved by virtue of hierarchical coordination, (2) bilateral governance, where exchange between independent parties is self-stabilizing as long as the value of a continued relationship is higher than the profit from defecting, (3) trilateral private governance, where third-party institutions such as arbitration, reputation-based sanctions, and private norms are involved, and finally (4) trilateral public governance, where conflicts are solved by reference to state commercial law, courts, and public enforcement.

Due to the Europeanisation of law, and the constitutionalisation of the European Union in particular, the Habermas argument seems to be quite appealing to many. Globalisation is interpreted as having curbed the State's capability to impose norms on the transnational process of expanding markets. This evolution seems to have not only reduced the action potential of the State but, at the same time and even more importantly, it also has reduced the value of citizenship. Citizenship can no longer be the core element of the relationship between the individual and the State in the postmodern society. It cannot be constituted via a direct relationship with the State, which at the same time constitutes the realm of deliberation because the diffuse networks of transnational inter-relationships beyond the State cannot be reflected by the process of public deliberation. The space of the State is, on the one hand, too small. On the other hand, it may appear to be too big. Against this background Europe cannot be regarded as the bearer of the European acquis étatique (the acquired state).