Reforms to the process for electing judges to the European Court of Human Rights have generally focused on identifying the most qualified individual candidates. This Article argues for a more holistic approach, advancing a theory of why professional diversity on the European Court of Human Rights is an asset in collegial decision making. The results of original interviews with several Strasbourg judges are presented, followed by an empirical analysis of the professional backgrounds of all judges elected to the European Court of Human Rights since 1998. Although the interviews indicate that the judges themselves see the value of professional diversity, the quantitative evidence suggests a trend in the direction of a more professionally homogenous bench. The Article concludes with some suggestions for how the promotion of professional diversity might be appropriately pursued in future reforms to the process for electing Strasbourg judges.

This Article explores the economic nature of law and courts as an explanation for the world’s endemic court congestion problem. The economic theory of goods and services is used to demonstrate that law has a dual nature—coercion and compliance—and that law as coercion is actually a club good that requires a complementary good to be useful, courts. But because courts are private goods in nature, the bundled product will behave as a private good. However, the unrestricted implementation of access-to-justice policies with the objective of increasing the people’s access to courts will transform the bundled product into a common pool resource. The counterintuitive result of this transformation is that granting unrestricted access to justice might actually prevent people from accessing their rights—the tragedy of the judiciary. Two policy implications are explored: The importance of legal certainty for the tragedy mitigation, and the potentially adverse selection problem resulting from court congestion.

In December 2018, the Euro Summit endorsed the Term Sheet on the European Stability Mechanism (ESM) reform prepared by the Eurogroup. In this context, the Euro Summit did not acknowledge the proposal of the European Commission to transform the ESM into the European Monetary Fund (EMF), but simply gave the Eurogroup a mandate to draft the relevant amendments to the ESM Treaty and submit them to the European Council of June 2019. Nonetheless, the justifications for the incorporation of the ESM into the body of the European Treaties continue to be valid and may come back into play. In this respect, it is worth highlighting two flaws that have emerged in the proposed transformation of the ESM into the EMF. First, the ESM Treaty does not contain any rule about extinction and transfer of functions. Second, the Commission’s proposal did not clarify what status the EMF would have enjoyed in the EU legal framework.

According to Regulation 1049/2001, which creates the EU’s public access to documents regime, all EU documents should hypothetically be publicly accessible, except for those that fall within explicitly protected interests. A number of these exceptions to disclosure, however, function such that documents covered by them do not have to be disclosed if their release would harm a protected interest unless there is an “overriding public interest in disclosure” exists in the circumstances. The purpose of this Article is to offer a critical examination of this concept of the overriding public interest as interpreted by the Court of Justice of the European Union (CJEU). In the first part, the notion of the public interest generally is discussed from a theoretical perspective. Following this, a thorough analysis of case law concerning the overriding public interest is presented. Finally, this Article presents a critical commentary of the CJEU’s understanding of the concept. This Article essentially seeks to argue, inter alia, that the CJEU’s interpretation has resulted in democratically unaccountable bureaucrats of the EU effectively becoming the sole arbiters of the existence and content of the overriding public interest in disclosure under Regulation 1049/2001, a situation that is fundamentally unsatisfactory.

Over the last decades, various groups seeking international legal recognition of new human rights claims have succeeded in their endeavors. Some movements have crafted such convincing demands that their participation has even become an implicit condition of the legitimacy of the resulting human rights documents. But what are the bases of claims for new human rights, and how do they help to confront the argument that human rights’ expansion also entails their dilution? This Article explores narratives based on two different concepts, namely the political-science concept of affectedness and the legal-ethical concept of vulnerability. It does so by drawing on the process for the recognition of peasant human rights at the United Nations. The Article explores what it understands as the peasant critique of existing human rights by looking at the differences and interrelations between affectedness and vulnerability-based argumentation. It argues that an approach premised purely on affectedness, and thus focused on participation, is less empowering than one that includes a regard for vulnerability, which serves as a heuristic device for identifying and challenging inequalities, demands substantive outcomes, and can serve to craft a convincing theoretical account of human rights protections.

Criminal offenses ignite the political debate. Questions about the causes, development, and combating of crime touch on widespread fears; those who make them their subject can be sure of public attention. This Article looks at 242 press releases of the German right-wing populist party, the Alternative for Germany (Alternative für Deutschland; AfD) from 2018 dealing with criminal offenses. It examines which crime phenomena the reports describe, which perpetrator and victim images they project, and how crime and immigration are depicted as related threats.

Meierhenrich’s book is an important book. For those seeking to learn about law under Nazism, it gives an excellent introduction. It is also highly relevant to the understanding of the general relationship between law and authoritarianism. This makes the book important for all who are concerned about the fate of the rule of law today.

More than seventy years after the end of the Second World War, atrocities committed under the National Socialist regime still continue to occupy the courts in Germany. The recent case of Oscar Gröning raised a number of highly relevant legal issues, particularly with regard to the degree of participation in criminal offenses in general, and more specifically, with regard to the possible level of criminal liability of individuals who, as part of a large-scale “killing machinery”, were acting under the command of superiors and, as such, not directly involved in the acts of homicide which were perpetrated. Different theories pertaining to the level of participation are analyzed, and the German Federal Court’s decision in the Gröning case is dealt with in detail.

The German police stopped and searched a car crossing the border from the Netherlands and thereby detected large quantities of drugs. What sounds like a standard procedure is actually a very controversial case recently heard at the German Federal Court of Justice (Bundesgerichtshof; BGH), dealing with so called legendierte Polizeikontrollen. These are apparently random police checks that are, in reality, well prepared and specifically targeted at the subject of the police check due to ongoing investigations. This case raised the issue of lawful evidence gathering by the police when pursuing both preventive and repressive objectives, as well as the question of the subsequent exploitation in court of the evidence obtained. Addressing issues of the utmost significance, such as the circumvention of the rights of the accused, this BGH judgment was critically reviewed among legal scholars.

This Article discusses the constitutionality of the recently implemented § 89a IIa of the German Criminal Code (Strafgesetzbuch—StGB) on the basis of the case 3 StR 326/16 decided by the Federal Court of Justice (BGH) on April 6, 2017. First, this Article introduces § 89a IIa of the StGB with a short summary of the events leading to the present anti-terrorist legislation in Germany and the development of the legislation over the past few decades. Second, the facts of the BGH’s case will be outlined, and an overview of the systematic structure of § 89a I, II No. 1, IIa StGB will be provided. Within this framework, the constitutionality of § 89a IIa StGB will be discussed, focusing on the prerequisite of appropriateness, with special attention paid to the requirement of reasonability and the prerequisite of legal certainty pursuant to Article 103(II) Basic Law (Grundgesetz—GG). Finally, § 89a I, II No. 1, IIa StGB will be applied to the BGH’s case after discussing the contentious legal issues regarding these doctrines. This Article concludes by discussing the BGH’s decision, which deems § 89a IIa StGB to be constitutional.

In 2013, 19,775 people were investigated for stalking. Of those nearly twenty thousand people, however, only a small fraction were convicted. This Article explores the methods employed under German law in striving to combat stalking (Nachstellung), the problems arising the refrom, and the most recent changes in stalking legislation. While numbers can illustrate the flaws of a seemingly malfunctioning system easily, identifying the causes and eradicating them is a more complex matter.