It is a well-established fact that German criminal trial courts are unacceptably and unreasonably overloaded. The German Federal Constitutional Court—Bundesverfassungsgericht, BVerfG—and the Federal Supreme Court of Justice—Bundesgerichtshof, BGH—frankly admit this fact. Even those legal scholars who are critical towards trial courts emphasize such overloading. This overloading is aggravated in the context of austerity measures, which seem to be based on a system that can briefly be described as follows: In principle, the BGH is not, if ever then only slightly, affected, and the State Courts of Appeals—Oberlandesgerichte, OLG—are not affected in an extensive manner. In contrast, the trial courts fare differently: The Higher District Courts — Landgerichte, LG—are typically severely affected by such austerity measures, while the Lower District Courts — Amtsgerichte, AG—are affected brutally. Pursuant to the authors’ view, this practice demonstrates an evident disregard for the trial courts, despite the fact that their speedy as well as convincing settlement of criminal cases is of the utmost importance for the law in action and a constitutive element of criminal proceedings under the rule of law. Hence, the guarantee of an effective criminal justice system — Gewährleistung einer effektiven Strafrechtspflege—is rightly recognized as a fundamental element of the rule of law.

Many industrial practices, such as the organization of working conditions or the use of hazardous substances, are no longer endemic to a specific jurisdiction. Rather, they spread through cross-border production chains or global markets for consumer products. In many cases, such regulatory issues therefore cannot be resolved within a single territory. Instead, they require the involvement of global players, such as civil society, business actors or international organizations, who can often find pragmatic solutions to global problems, even if they lack the formal authority to do so. This seems to conform to a more global trend of national government getting replaced by global governance.

Harmonized regulatory frameworks have become increasingly important. This is especially so following the global financial crisis, where there have been calls for a harmonized international response to securities regulation. Examples in the EU include MIFID and the Takeover Directive. MIFID regulates securities traders and stock exchanges. It contains rules that indicate the obligations on exchanges and traders vis-à-vis matters such as achieving the “best execution” of trades. The Takeover Directive regulates mergers and acquisitions, their regulations include regulations on anti-takeover provisions, compulsory acquisitions, and the method of paying for acquisitions. These impose a ‘weak’ form of harmonization: member states can opt out of some provisions, many provisions are vague (and require definition by domestic regulators) and member states retain the right to legislate around the harmonized framework. These directives have not received universal support.

Global constitutionalism, an idea neither necessarily rooted in nor emerging specifically from international law, has captured the imagination of public international lawyers. Rather than adding to the plethora of suggestions of what a global constitution would and should look like, this article is about why international lawyers are interested in this idea. The literature so far has largely omitted a stocktaking of what it is that is so appealing about constitutionalism and who is particularly partial to it. When discussing global constitutionalism, international lawyers commonly assume one of two orientations: either a normative orientation (this is the type of constitutionalism we should have) or a descriptive orientation (this is the type of constitutionalism we already have). The former mostly concerns visions for “a global constitution” while the latter often concerns ideas of the process that will at some point culminate in “a global constitution;” this process is commonly referred to as “constitutionalization.” The recent co-authored book by Jan Klabbers, Anne Peters and Geir Ulfstein, The Constitutionalization of International Law, sets out to go further. It aims to see “what a constitutional international legal order could look like.” In a sense, they have therefore adopted a third orientation: one that takes the descriptive case of constitutionalism as a given and theorizes about further normative aspects in regard to the international legal order.

This special issue looks at the normative implications of EU global regulatory efforts in the area of environmental policy. The EU Environmental Emissions Trading System (EU-ETS) represents an example of successful application of EU environmental standards where global standards harmonization had failed. The intersection between EU law and global law, however, seems increasingly porous and difficult to decipher. Post-Lisbon, the EU increasingly functions like a State in its actions with the world. Nonetheless, the operation of international law internally within the EU legal order has been the subject of many distinctive constitutional periods, both prior to and after the Treaty of Lisbon. In the recent judgment of the Grand Chamber of the Court of Justice on the EU-Emissions Trading System, the Court rejected claims that the application of the EU-ETS scheme to the aviation sector, specifically US airlines, was unlawful under EU and international law. In the realm of the environment, EU environmental protection is both a value and normative aspiration. Yet what is a successful legal outcome of the adoption of ambitious and aggressive global legal regulatory frameworks in this domain? How should contemporary EU global policy and value ambitions be adjudicated in law? The case raises broader issues about the legitimacy of EU law and externalities arising from extended EU competences to positively promote EU constitutional values beyond Europe. While using this case as its starting point, this special issue sets out to look at the wider constitutional questions asked by it.

Phenomena such as cloud computing, but also ambient technology, chain informatization, and social networking sites put into question the continuing applicability and relevance of existing legal frameworks, in particular the European Data Protection Directive (henceforth the DPD or the Directive), which dates back to 1995. Its framework of assigning roles of controller and processor appears to stand up no longer. It can be argued that it does not help any more in assigning responsibility for the processing of personal data. By a strict application of the DPD, the data subject can even be construed as playing the role of controller. Not only does the functioning of the principles of the roles need a reconsideration, but other essential principles, such as that of purpose-binding, require it, as well. For example, because data, which in a social networking context are disclosed to friends, are also used for targeted advertising and tailoring services, etc., the purpose-binding called for by the DPD becomes, at the very least, opaque. Furthermore, assigning responsibility to the actual processor in charge is just as unclear. Therefore, these current phenomena make clear that the conceptual foundations of the legislative frameworks, which purport to facilitate and protect privacy, require reflection.

The continuing proliferation of transnational private regulatory governance challenges conceptions of legal authority, legitimacy and public regulation of economic activity. The pace at which these developments occur is set by a coalescence of multiple regime changes, predominantly in commercial law areas, but also in the field of internet governance, corporate law and labor law, where the rise to prominence of private actors has become a defining feature of the emerging transnational regulatory landscape. One of the most belabored fields, the transnational law merchant or, lex mercatoria, has gained the status of a poster child, as it represents a laboratory for the exploration of “private” contractual governance in a context, in which the assertion of public or private authority has itself become contentious. The ambiguity surrounding many forms of today's contractual governance in the transnational arena echoes that of the far-reaching transformation of public regulatory governance, which has been characteristic of Western welfare states over the last few decades. What is particularly remarkable, however, is the way in which the depictions of “private instruments” and “public interests” in the post-welfare state regulatory environment have given rise to a rise in importance of social norms, self-regulation and a general anti-state affect in the assessment of judicial enforcement or administration of contractual arrangements. A central challenge resulting from case studies such as the transnational law merchant is from which perspective we ought to adequately study and assess the justifications, which are being offered for a contractual governance model, which prioritizes and seeks to insulate “private” arrangements from their embeddedness in regulated market contexts, on both the national and transnational level.

The “war against terror” remains one of the most difficult challenges for criminal law, as it takes the rule of law to its constitutional limits. Eleven years after 9/11, we see that these events have led to modifications of the general structure of security laws worldwide and also in Germany. National laws have not only been extended to address modern phenotypes of terrorism and the financing of terrorism but have also been expanded to catch foreign and international organizations. Fighting terrorism can only be successful with global cooperation. The papers in this special issue were presented at the International Forum on Crime and Criminal Law in the Global Era in Beijing, and should thus be seen as part of the German-Chinese dialogue on criminal matters. As the question of how German legislation and jurisprudence react to the challenges connected to the fight against international terrorism stretch far beyond this dialogue, a special issue of the German Law Journal seems to be the perfect forum to address a wider global audience.

Marriage today does not only involve private interests; it is also an important legal and political issue. The question of what marriage means today and whether it should be open to same-sex unions is under debate all over the world. In many countries, for example in Germany and the United States, such questions are not only debated in the political arena, but also in relation to constitutional law. This Article will trace the development of how marriage has been understood in relation to German constitutional law and critically discuss the law's approach to same-sex marriage.

Constitutional patriotism is on the ascent among contemporary constitutional theories. Its objective is to re-orient the loyalty of citizens away from particularistic attachment to a Nation, and towards the Constitution. In promoting political justice, constitutional patriotism relies on citizens’ acceptance of a particular constitutional order not as an embodiment of particularistic ethnocultural, or even statist values, but rather as an expression of universal political principles. In other words, a constitutional order ought not to be seen as an instrument for a nation's political self-actualization, but rather as a framework for institutions and a repository of values that enable a diverse body of citizens to critically rework their particular traditions in light of universalist principles of political justice.

What does the Canadian Constitution have to say (or not say) about Canada's recent war in Afghanistan? The question seems intellectually natural, but has seldom been asked – not least because in Canada, the fields of constitutional law and foreign affairs, in both scholarship and praxis, are often near-perfect strangers. The seldom examined second recital of the preamble to the Constitution Act, 1867 (once the British North America Act, 1867, and hereafter the ‘1867 Act'), reads that the “Union would conduce to the Welfare of the Provinces and promote the Interests of the British Empire.” The only provision of the 1867 Act that explicitly references foreign affairs is section 132, although it speaks to the implementation by Canada (legislative and executive branches) of imperial or British Empire treaty obligations. One can therefore propose with reasonable certainty that both the character and paucity of explicit language on strategy in the text of the founding legal document of the modern Canadian state betray a fundamental reality: that Canada, constitutionally speaking, was never intended or expected to be a power player of any note in the world, but, rather, was constituted as a strategic appendage or auxiliary kingdom of the British Empire— its instruments and interests subsumed to the strategic designs and direction of Westminster.

Governments periodically receive accusations of over-spending. These accusations are sometimes warranted. Some commentators propose that strict tax and expenditure limits (TELs) and/or balanced budget requirements (BBRs) may resolve excessive expenditure. Governments can implement TELs and BBRs through constitutional amendments, statutory schemes, or non-binding aspirational goals. They have been proposed as a remedy to allegations of over-spending in some European countries. However, it is not entirely clear if TELs or BBRs are effective or will resolve excess expenditure. I analyze TELs and BBRs as implemented in the United States and Australia. I argue that the Australian model of aspirational TELs and BBRs is beneficial if there is a political will to enforce them. However, if there is no such political will, then statutory (as opposed to constitutional) TELs and BBRs best strike a balance of flexibility and constraint.

There are many factors that influence political elections, among them, money may be the most important one. The starting point of this Article is the judgment of the U.S. Supreme Court in Citizens United v. Federal Election Commission. After this decision is described, the approaches of the United States and Germany in regulating political speech by campaign finance laws will be discussed, focusing on the role of companies. This Article will outline the status quo of federal American campaign finance laws (Part B). Regarding the German approach, this Article will outline the Parteiengesetz (Political Parties Act, hereinafter: Part G) and decisions of the Bundesverfassungsgericht (Constitutional Court, hereinafter: BVerfG) (Part C). European regulations are not the subject of this Article. Both approaches will be compared and future prospects will be given as a conclusion (Part D).

A freeze-out is a transaction in which a controlling shareholder forces out the minority shareholders and compensates them in cash or stock. A successful freeze-out transaction marks the end of the exchange-traded life of a corporation—it is a “going private” transaction. A freeze-out is therefore the counterpart to an initial public offering. Whereas the latter leads to the public listing of a corporation and thus a multiplication of shareholders, the freeze-out transaction aims at reducing the number of shareholders of a corporation to one.

All around the world people suffer from acts of violence committed by armed non-state actors or transnational organized criminals, from abuses attributable to corporations, or from unlawful acts of international organizations, among others. Sometimes, the power of these and other actors matches and even surpasses that of states, and the formal separation between legal systems creates gaps that can lead to the impunity of abuses attributable to such actors, resulting in a failure to address their unlawfulness.

The shock was great when a car bomb shook the Norwegian capital of Oslo on 22 July 2011 not only destroying government buildings, but also taking eight people to their deaths. However, this was only the prelude to the horrors that unfolded almost thirty kilometers away. There, on the resort island of Utøya, sixty-nine participants of a Young Socialists summer camp were shot dead. Based on our current understanding of events, all these acts can be attributed to one single person who believed himself to be fighting an ideological battle against the supposed evil. Before the attacks, the perpetrator put his convictions into writing and sent many pages around the world via the Internet.

The EU legal system, with its many hands and complex architecture, in which national and European powers are closely interwoven, requires a particular form of cooperation. This delicately developed cooperation may be influenced by the EU's ambition to take a statelike role in international relations. Indeed, the basic assumption underlying this Article is that it is not only the EU's complexity that influences the EU's external actions—usually seen as limiting the EU's capacity to speak with one voice—but also that the EU's external actions influence its internal set-up and cooperation practices. As a result of the EU's participation in international legal regimes, established organizational principles might come under pressure. Furthermore, within the complexity of the European legal order, the potential consequences could be more disturbing for stability than within the—monolithic, in comparison—structure of states.

First, I would like to acknowledge where this paper was presented and where the work of revising it into an article took place. I would like to acknowledge the territory, which is not just Toronto, Ontario, Canada, but also Tkaronto, a Mohawk or Kaniekehaka word (as are Ontario and Canada). This word is from one of the languages of the Six Nations that comprise the Haudenosaunee Confederacy (People of the Longhouse), perhaps better known in this symposium by the French colonial name of Iroquois. Toronto and its surrounding territory are traditionally of the Huron-Wendat people, the Seneca Nation of the Haudenosaunee, and with title most recently lying with the Mississaugas of New Credit (Anishinabe). I would like to acknowledge the territory and thank these hosts, as well as the conference organizers for their generous invitation to participate in these discussions on transnational private regulation (TPR).

One of the prominent questions surrounding Weimar Theory of the State was that of the significance and influence of the political parties within the state. From the perspective of constitutional law, parties were as undesirable as they were an “inescapable” fact of modern statehood. They appeared to be an absolutely necessary consequence of the emancipation of all classes and social strata: Legitimation of state rule was no longer conceivable merely as a natural rule from above; on the other hand, there was no longer a unified bourgeoisie, and it thus seemed impossible for the political whole to be represented by people who felt beholden exclusively to the common weal. The homogeneous “people” had become a heterogeneous “mass.” The parties seemed to be a necessity, on the one hand, for active citizens to articulate themselves in the political system and, on the other hand, for state unity not to be torn apart by the power of a plurality of interests leaning in many different directions. Parties could therefore be conceived of as a prerequisite for state organisation: The idea of the “party state” was born. One important protagonist in the discussion on the status of parties within the state structure was the constitutional legal scholar Gerhard Leibholz (1901–1982). In Weimar times, he was the most prominent representative of party state theory (Parteienstaatslehre), and as someone who “had somehow fallen between the eras,” he also actively shaped the party state of the Bonn Republic for over twenty years (1951–1971), as a judge at the Federal Constitutional Court (Bundesverfassungsgericht), by significantly influencing legislation on parliamentary, party, and electoral law. His persona was therefore a particularly important bridging link between the Weimar Republic and the Federal Republic of Germany, and even today, his theses are highly topical: “Beyond all eras, Gerhard Leibholz stands for the great tradition of German constitutional theory.”

The one-sided focus on shareholders’ interests inherent in shareholder value-orientated corporate policies presupposes that there is a functioning system to protect the economic interests of the other stakeholder groups (creditors, employees, customers, suppliers, etc.). This is an important constraint on the maximization of the market value of equity, which as a target variable cannot be equated with a market price on the stock exchange, or with a short-term profit or yield target, and certainly not with a pending bonus payment sum. Conversely, the postulation that the primary focus must be on shareholders’ interests loses its validity as a guiding operational principle if neither individual contractual agreements nor protective statutory rules can safeguard a minimum level of protection for individual stakeholder groups. Given the incompleteness of contracts, it is not sufficient to refer to the possibility of self-protection in contracts—this loophole must be closed by regulations and by corporate governance.