[Extract] Most English-speaking lawyers are unfamiliar with the work of Joseph Isensee,1 an eminent jurist and sometime contender with Jurgen Habermas,2 as well as a leading writer on the law of the German Constitution. Isensee's Handbook of German Constitutional Law has been a leading text for many years,3 and his various interventions over time have lead to a number of significant awards, including the Ring of Honour of the Gorres-Gesellschaft in 2013.4 The aim of this Article is to translate and comment upon some of Isensee's work and the arguments surrounding conscience protection under the German Basic Law (Grundgesetz).
Global constitutionalism is a scholarly agenda characterized by a positive and normative component—the former taking the form of positive inquiry, the latter of normative thinking. Delving into this double-feature essence, this article argues that global constitutionalism has a philosophical and bio-political significance that escapes the rationalist purview of positive analysis. For the very same reason, however, an engagement with this ‘surplus’ might benefit its normative potential. The article shows this by drawing from the view which understands phenomenology as the negative (i.e., normative and non-positive) analytical method of philosophy conceived as ontology. More particularly, it shows that globalist discourse’s philosophical and bio-political significance can be grasped through a post-national phenomenology of authority and sovereignty’s supra-logical negativity centered around the functioning of implied (i.e., negative and non-posited) legal principles and rules on the global and transnational scale. Using global constitutionalism’s ‘domestic analogy’ against itself, it sets out the conditions under which the operativity of such provisions creates a post-national ‘space’ in which the modern secularization of naked/bare life and political/public existence that Giorgio Agamben assigns to the negativity of the modern nation-state’s constituting process recurs.
The exploitation of oil and gas in the Niger Delta is considered the foremost source of revenue of Nigeria, providing 20% of the Gross Domestic Product (GDP), 95% of foreign exchange earnings, and about 65% of budgetary revenues. With the strategic position o f this area and the tensions between the Federal Government of Nigeria and multinational corporations (MNCs), directly exploiting these resources on one hand and the ethnic communities that these resources are derived from on the other, there is a need to take various steps to de-escalate the situation in this region. To minimize resource conflicts within the region, this Article canvasses for the formulation of new tripartite oil and gas arrangements, both legal and contractual, that provide oil-producing communities with stake-holding in oil and gas operations in the region. It further examines some of the potential complexities that may arise if the MNCs directly negotiate contracts with the communities without due involvement of the Federal Government of Nigeria as the host state government.
Based upon past experience with other vaccines, the proposed administration of Ebola vaccines (once testing has been completed) will inevitably result in at least some adverse events that will give rise to legal liabilities of only crudely estimable magnitude at this time. Manufacturers, beneficiary governments (e.g., Guinea, Liberia, Sierra Leone), supporting governments (e.g. U.S., U.K.), individuals suffering adverse events, and populations benefiting from widespread vaccination against the Ebola virus all have a shared interest in recognizing, understanding, and managing potential liability as effectively as possible within the framework of a global public health response. There are multiple options available to the global public health community in addressing potential legal liabilities associated with Ebola vaccines, including (1) requiring manufacturers to pay any valid claims, (2) establishing a sui generis product liability insurance scheme for Ebola vaccine claims, (3) agreeing that beneficiary governments compensate their residents for adverse events, (4) issuing declarations of immunity by beneficiary and supporting governments, (5) calling upon beneficiary governments to appear in judicial proceedings on behalf of manufacturers, and/or (6) creating one or more mechanisms for supporting governments to pay for claims relating to adverse events of Ebola vaccine administration.
Although Italy and the United States are both advanced industrial economies, the law and practice of workplace arbitration differs significantly in the two countries. This article explores those variations and analyzes the reasons that arbitration has evolved dissimilarly. The article concludes that historical and cultural differences in legal systems and labor and employment relations are explanatory forces. While the U.S. could provide a more balanced system of arbitration by learning from the Italian system’s greater protection of workers, given the current reality neither system seems likely to undergo significant change in the near future.
The European Union (EU) is “going local” by taking decentralization of power seriously in order to create greater effectiveness for European law and policy, especially with respect to its economic development or cohesion policy strategies. In this vein, the Treaty of Lisbon has modified the subsidiarity principle now including a “regional and local” dimension while offering new legal and political safeguards to protect subnational actors from the reach of EU law. However, in EU cohesion policy, cities, regions, and Lander in the different Member States are ‘lumped together’ into a third-level Europe that does not differentiate among these subnational actors. In addition, despite the attempt to connect Europe to its subnational level to enhance local autonomy and territorial cohesion, European courts do not always recognize the local level as independent from their Member State. As a result, EU cohesion policies attempting to narrow the welfare imbalances among European regions are not territorially attuned, flexible enough, or equipped with accountability mechanisms capable to address the development problems they are designed to solve.Scholars have shed light on the invisibility of local actors by proposing to strengthen their “input legitimacy” (process and participation) through greater representation before EU decision making processes or European courts. By focusing on EU-wide procedures instead of understanding how different legal and geographical factors characterize each territory, EU scholars have refrained from addressing whether increasing decentralization is accomplishing the desired development goals and improving the “output legitimacy” (effectiveness of regulation) of EU institutions. This Article instead offers a thick description of EU cohesion policies aimed at creating economic development and territorial cohesion by disbursing EU funding to the European peripheries. Rather than assessing if these policies enhance local autonomy and decentralization through EU-local cooperation, I demonstrate that often they foster centralization and produce new conflicts among heterogeneous subnational actors, Member States, and the EU. Through a textured account of local power in Germany, Greece, and Italy, I suggest that a more contextualized and needs-based approach to cohesion policies, which acknowledges territorial and socio-economic disparities in each region, would anticipate and evade the shortcomings of current EU cohesion policy. This Article departs from notions of local autonomy and decentralization of power to improve the “input legitimacy” of EU institutions by suggesting that the findings on cohesion policy — the need to pay greater attention to local heterogeneity and to create accountability mechanisms to monitor disbursement policies — are important lessons about local governance in the EU that should “travel” to other regulatory areas.
Although no non-European Union convention focusing on international electronic commercial contracts is currently in effect, such contracts are growing in number and importance and do not exist in a legal vacuum. The Convention on Contracts for the International Sale of Goods (CISG) has been interpreted by its Advisory Council to apply to such electronic contracts. International law, based on general principles of good faith and equity and on customary international law, is an existing and future source of international commercial electronic contract law. Customary international electronic commerce law is derived from the general practices of businesses contracting through electronic communications that are accepted as law, and from international treaties and model laws, and their interpretations, which have been accepted as authoritative descriptions of such practices. The United States will decide whether or not and how to ratify the Convention on the Use of Electronic Communications in International Contracts (CUECIC) that was proposed by it to the United Nations Commission on International Trade Law (UNCITRAL) and was drafted and approved by UNCITRAL. CUECIC advances further than existing law the legitimacy and functionality of international electronic commercial contracts. U.S. ratification decision makers should recognize this advancement, reinforce the freedom of contract norms promoted by CUECIC, and preserve the legitimacy of customary international law as a supplement to the limited contract formation rules of CUECIC.
Strayer-This Ardcle is the result of the authors' application of an explicit model of the evolving international legal situation and an empincal test using multilateial treaties. The authors examine all the multilateial treaties signed over the last 350 years, about 6000 treaties, and discuss the "humanizadon"ofintemationallaw.
In this Article, Professors Levy and Somek engage in a careful comparative analysis of the leading constitutional abortion decisions in the United States and Germany. This analysis is occasioned by the remarkable convergence of the abortion regulation regimes of the two countries, notwithstanding the diametrically opposed starting points of the United States Supreme Court and the German Constitutional Court. While Roe v. Wade started from the premise that the fetus had no rights and that the woman’s right to privacy encompassed a right to choose abortion free from government burdens, the First German Abortion Decision established that the constitutional guarantee of a right to life encompassed the unborn child and required the state to criminalize abortion. Nonetheless, in Planned Parenthood v. Casey and the Second German Abortion Decision, the respective Courts accommodated nearly identical abortion regimes in which the mother is allowed to have an abortion early in the pregnancy and for specified causes, but the state structures the context of that decision in an effort to persuade her to carry the child to term. The reasoning process by which both Courts have moderated their abortion jurisprudence exhibits three “paradoxical parallels.” First, in Roe and The First German Decision, the Courts constructed a clear hierarchy of constitutional rights to legitimate their involvement in the abortion issue, only to reintroduce previously subordinated interests later in the analysis. Because the reintroduction of these interests is inconsistent with the Courts’ constitutional hierarchy of rights and remains largely unexplained, there is a disjunction between the legal framework for and moral balance of the respective decisions. Second, in Casey and The Second German Abortion Decision, both Courts exploited this disjunction to claim fidelity to precedent while accommodating compromise abortion regimes. Ultimately, however, these new legal frameworks did not rest on any independent constitutional foundation, but rather on the moral balance of the earlier decisions. But even the respective Court’s claims to have retained the moral balance of the earlier decisions remained unpersuasive, because their new legal frameworks effectively redefined the moral balance. Third, both Courts reasoned that the locus of the abortion decision has not changed under the new abortion regimes; i.e., that the decision remained with the mother in Casey and with the state in The Second German Abortion Decision. In both cases, however, this reasoning oversimplified the nature of the abortion decision and ignored the ways in which the state’s context-shaping role has, in fact, changed. Because this change is likely to have a significant impact on some substantial number of women, the locus of decision has changed. Ultimately, Professors Levy and Somek assess the implications of these paradoxical parallels for the role of the courts in modern society, suggesting that the example of abortion illustrates the limits of the courts’ ability to oppose powerful social forces and the loss of institutional capital that may result from becoming involved in controversial moral questions. This is not to say that the courts should abandon constitutional principle to popular sentiment, but rather that courts must be conscious of their own limits.
In this Article, Professor Dau-Schmidt provides a comparative analysis of the labor laws of the United States, the United Kingdom, Germany, and Japan for the purposes of identifying which characteristics of a country's labor laws are likely to reduce strike incidence and intensity and promote industrial peace. To identify which characteristics of a country's law are likely to encourage industrial peace, Professor Dau-Schmidt presents game theory arguments based on his analysis of unions and collective bargaining. Dau-Schmidt then provides a simple empirical test as to the relative success of different countries' laws in advancing industrial peace by comparing data on the number of days lost per thousand organized workers for each of the examined countries. Dau-Schmidt finds that countries, such as Germany and Japan, that encourage the sharing of information between employers and employees and effectively prohibit certain strategic behaviors by the parties, enjoy the most success in promoting industrial peace. In contrast, like United Kingdom, which has historically left collective bargaining unregulated even to the point of not enforcing voluntary agreements to arbitrate, suffers by far the worst record of encouraging industrial peace. Somewhere in between those two extremes lies the United States with requirements for limited exchanges of information and less effective prohibitions on strategic behavior, and intermediate success in encouraging industrial peace.
