Several fundamental questions concerning internet law come to a head over search engines. There are trademark cases, issues about the protection of minors and questions of liability. However, as far as we know, the fundamental role that search engines play in public communication based on the World Wide Web has not yet been subjected to any legal analysis. This seems to leave a significant gap in our knowledge, given the fact that the market for search engines tends to be monopolistic.

The General Council of the Judiciary is the main institution of judicial self-government in Spain. It was established to ensure the external independence of the judiciary, and in particular the independence of the judiciary vis-à-vis the executive branch of government. To what extent does the Judicial Council manage to fulfill its goal? First, the evolution of the Judicial Council will be presented in order to understand the principal reforms and reasons behind its creation. Next, the impact of the Judicial Council upon judicial independence, as well as accountability, transparency, and public confidence will be critically examined in order to assess its contribution to judicial legitimacy. In the end, it will be argued that the politicization of the Judicial Council has hindered it from protecting judicial independence from partisan interests, and has contributed to undermining public confidence in the judiciary.

There is no uniform approach to assessing scholarly publications in legal research. Peer review is still the most accepted form, but the popularity of bibliometrics, such as the impact scores of journals and the citation scores of individual articles is increasing. However, there is no ranking of European law journals and none is likely to materialise any time soon. Comparing the UK, Belgium and the Netherlands, we will demonstrate why both peer review and the use of metrics have serious shortcomings. We believe it is necessary to think about such alternatives as more attention for methodological justification in legal research, more clarity from editorial boards about the quality criteria being used to approve or reject submissions, and more emphasis on standards for different forms of legal scholarship. Last but not least, we call for a Europe-wide debate on the pros and cons of different systems of research assessment, rather than let every country reinvent the wheel.

Framing largescale migrant drownings as violations of international law has so far not been a straightforward task. The failures of doing so, both in scholarship and in activism, have often revealed important limitations of international law, and a form of rightlessness that is hard-wired in it. Through an assessment of arguments about drowning, framed in the vocabularies of the right to life, refugee law, the law of the sea, and international criminal law, difficulties surrounding the notion of jurisdiction persist: The maritime space has often functioned as a kind of “legal black hole.” Considering such difficulties, this Article suggests that shifting the focus from migrant rights to the civil and political rights of volunteers coming to the rescue, may help in closing the accountability gap. It thus seeks to articulate and conceptualize a form of maritime civil disobedience among rescue volunteers, which may provide the link for eliminating migrant rightlessness at sea.

Within Scandinavia, Sweden stands out for not having gone to war in over 200 years. Its neighboring states—Finland, Denmark, and Norway—have not been as fortunate. Their respective constitutions each provide insight into their different experiences. The Swedish Constitution remains silent on emergency situations that do not rise to the predefined level of “war.” The Finnish constitution differs from the Swedish in that it allows for time-limited restrictions to protect fundamental rights and freedoms during a state of emergency, aggression, or any other situation that poses a severe threat to the nation, if stipulated by law and in congruence with international obligations of Finland. Importantly, when and how a government can declare a state of emergency is a question of ordinary law, rather than a constitutional one. This Article offers a comparative constitutional law analysis of the relative constitutional silence in Sweden and Finland as concerns emergency powers. The analysis takes as its starting point Böckenförde's The Repressed State of Emergency: The Exercise of State Authority in Extraordinary Circumstances.

The present Article aims to shed light on the question whether crowdinvesting regulation should favor a specific legal form or contract type for crowdinvesting. To this end, it analyzes the conditions which legal forms and contract types must fulfill to be used in crowdinvesting. As crowdinvesting in Germany benefits from a high degree of contractual freedom, the Article gives an overview not only of the types but also of the contents of crowdinvesting contracts that are in use in Germany and traces how they have evolved. Based on a sample of 81% of all crowd financing in the German market, it evaluates 255 crowdinvesting campaigns held on 18 different platforms in the period from August 1, 2011 to December 31, 2015.

While "no means no" considers sex as consensual until someone says no, "yes means yes" defines sex only then as consensual when all parties have explicitly agreed. Consent is thus positively determined by the presence of a yes and no longer negatively determined by the absence of a no. "Yes means yes" thus not only sets the limit as to when sex becomes sexual violence, it also tells us how morally "correct" sex should look like. In the first part I will give an insight into debates about affirmative consent in the US and Germany. In the following, I will work out how affirmative consent misjudges the subjectifying functioning of sexual power relations. I will show that the understanding of affirmative consent is based on a gendered giver-receiver grammar of consent, which stabilizes heteronormative notions of female sexuality as passive and male sexuality as active. Based on the results of conversational analytical studies on sexual communication, I will argue that the politics of affirmative consent underestimates the internalization of heteronormative discourses in sexual subjects.

The aim of this paper is to provide a new comprehensive understanding of roles of court presidents in judicial governance in Europe. It argues that in order to better understand the role of court presidents in comparative perspective it is necessary to unpack their power into smaller components that can be analyzed separately. We define seven such components: judicial career, jurisprudential, administrative, financial, ambassadorial, and media power, and ancillary powers as a residual category. Subsequently, we zero in on 13 European jurisdictions and rate them according to the strength of their court presidents' powers. By doing so we are developing a Court President Power Index. Based on this Index we question the claim that Western court presidents are always weaker than their Eastern European counterparts and argue that powers of court presidents diverge both within Western Europe and within Eastern Europe, and hence it is difficult to draw the easy line along the West/East axis on this ground. Finally, we problematize our Court President Power Index and show that powers in the meaning of faculty do not necessarily translate into influence since various contingent circumstances (such as the length of court presidents' terms of office, information asymmetry, the structure of the judiciary, the existence of competing judicial self-governance bodies, the role of individuals, the proximity of court presidents to political leaders, the legal profession, legal culture, and the political environment) affect to what extent court presidents may exploit their powers in practice.

The principle of proportionality is on the rise. A growing number of constitutional and international courts refer to some form of proportionality in their jurisprudence. At the same time, the principle is receiving more and more attention in international legal scholarship. Yet proportionality has not remained uncontested. In particular, some scholars have severely criticized the core of the proportionality test, which involves a balancing of competing values. This balancing is accused of being irrational because it requires placing incommensurable values on the same scale. In a famous dictum, Judge Scalia once claimed that balancing competing constitutional values is like determining “whether a particular line is longer than a particular rock is heavy.”

Contemporary democracies may confront several instances of exceptions that co-exist with constitutional institutions; they are never free from any risks. This Article relies on recent Brazilian judicial experiences in order to present and highlight how courts and judges, from within the institutional structure, can act as elite actors that endanger the constitutional system, giving it the characteristics of unstable constitutionalism. By presenting the recent political and juridical facts that drove Brazil to constitutional crisis, the work brings not only judicial rulings but also the institutional and corporative structure that served as the main methods of avoiding the judicial reforms that could have led to a true transition from dictatorship to democracy. The conclusion is that the Brazilian courts blocked effective transitional constitutionalism in Brazil, making room for the current unstable constitutionalism.

The Hungarian judiciary has reacted to the political change of recent years in a twofold way. Some judges have resisted political pressure and decided cases according to the law and their conscience, while others, showing the signs of judicial populism, have deferred to the interests of the government. The paper explains the relationship between this twofold behavior and the bureaucratic tradition of the Hungarian justice system. The conclusion is that the bureaucratic model of organization has certain features that can make judges more resistant to political pressure, while other elements of the model can lead to judicial deference. Nonetheless, these latter elements are not necessary components of the ‘Weberian’ justice system.

The article discusses the development in the administration of the Slovak judiciary since the separation of Czechoslovakia and the impact of the empowerment of the judicial self-governance on the functioning of the judicial system. After independence, the administration of the judiciary initially rested in the hands of the executive. In 2002, Slovakia created its Judicial Council and transferred a considerable amount of powers on it, especially related to judicial careers. It was expected that this would de-politicize the judicial system. However, a high level of autonomy of the judiciary chiefly led to the empowerment of judicial elites. This reduced the democratic accountability of the judiciary, encapsulating it from society and enabling it to promote its own interests. Selection processes have often been used to fill judicial ranks with judges with close ties to the system. Accountability mechanisms such as promotions, disciplinary procedures or remuneration schemes were used to reward allies of those on the top of the hierarchy and to punish their critics. Still, adherence to EU-backed standards on the administration of the judiciary may have increased the legitimacy of the judiciary, while concentrating decision-making in one body enhanced transparency, which was furthered due to low public confidence resulting in unprecedented levels of information available about the Slovak judicial system. All in all, the Slovak example displays the dangers of establishing judicial self-governance in countries where an internal ethical culture and a strong sense of judicial duty are still lacking.

Legal education is changing. What is changing is our understanding of “education”, of how we learn and how we should teach. Also changing is our understanding of how to define what is “legal” about “legal education”. Most will nowadays agree that legal education should be more than a vocational training for the practice of the profession in a particular jurisdiction. In analyzing the development of legal education in recent years, we can distinguish two trajectories. Firstly, there is the ongoing attempt of specifically the North American legal academy to make legal studies a transdisciplinary endeavour, a development closely connected to the major “paradigm shifts” in legal theory in the 20th century. Secondly, it seems that jurisdictional boundaries have lost significance in an internationalized, globalized and post-regulatory environment. This calls into question the very notion of “law” itself, at least as traditionally understood as a system of posited norms within a given jurisdiction. How should both developments be reconciled?

Just one year after Polish accession to the European Union, the Polish Constitutional Tribunal was provided the opportunity to clarify its position regarding the supremacy of EC and EU law. In its two recent judgments, it joined the long tradition of a rather uneasy relationship between national Constitutional Courts and European Court of Justice (ECJ). The uneasiness of this relationship results from an ever-unsolved dilemma – which of the two judicial fora should have the last word in case of conflict between European norms and national constitution norms? The solution given by European Court of Justice in a series of early judgments seems obvious. It opted for an absolute supremacy of EC norms over national norms. On the other hand, the national Constitutional Courts usually accept the supremacy of EC law - but only as a consequence of transfer of some competences under strict conditions set by national constitutions. They thus accept the concept named by Neil Walker “constitutional pluralism”, meaning that the states are no longer the sole source of constitutional authority. However, national constitutions are still the “primary” source of any such authority.

The process which is commonly called “globalization” in social sciences seems to shatter the very foundations of law and legal thinking. Yet while legal scholarship, for the most part, is still grappling with identifying the problem, Karl-Heinz Ladeur is already offering a solution. He may therefore count among the avant-garde in the debate on law and globalization.

This paper addresses the specific challenges arising from the monetization of political speech on social media, and propose a normative argument to extend consumer disclosures to political speech. Political speech enjoys the highest degree of protection by national constitutions as well as supranational and international charters. Unlike commercial speech which usuallyenjoy less constitutional protection, political speech is the foundation of constitutional democracies. The blurring line between political and commercial speech introduces a new layer of complexity in tackling hidden political advertising. Indeed, political speech is likely to attract commercial speech inside a broader scope of protection with the result that potential limitations of this kind of speech would be required to pass a very strict test through the balance with other constitutional safeguards or legitimate interests according to the criteria of necessity, legitimacy and proportionality. This could also question the scope of other regulation designed to govern commercial speech like advertising. To this end, the paper compares regulatory and judicial interpretations adopted in Europe and the United States, and is structured as follows. In the first part, we explore the content monetization business models (including influencer marketing) used on social media, and we identify three types of influencer ‘personas’ who are prone to engage in political speech. The second part looks into the constitutional differences between commercial and political speech across the Atlantic. The third part provides the normative argument at the intersection between consumer law and freedom of expression, and the fourth part concludes.

On October 14, 2004 the Bundesverfassungsgericht (BVerfG – German Federal Constitutional Court) delivered a judgment which gave rise to vivid reactions in the mass media and to a dispute between the European Court of Human Rights (ECtHR) and the German Federal Constitutional Court. In interviews, members of the Strasbourg court spoke about their disappointment in the German Court's unwillingness to implement decisions of the ECtHR while members of the German court referred to the necessity to respect national particularities. Whereas, normally, the ECtHR and the constitutional courts of the Member States of the Council of Europe are fighting side by side for human rights and, therefore, consider themselves as natural allies, this time their decisions, which seem to be incompatible, led to a dispute which attracted as much public interest as a film or theatre premiere.

This paper analyzes the compatibility of intra-EU bilateral investment treaties—intra-EU BITs—with EU law. The status and validity of intra-EU BITs gave rise to a heated debate in Europe, which culminated in the CJEU's recent controversial judgment in Achmea. This Article demonstrates that although the CJEU approached intra-EU BITs from the angle of federalism—where they are both redundant and illegitimate—the reality is that EU law does not provide for the kind of protection afforded by BITs. The paper gives both a positivist and a critical assessment of the Achmea ruling. It argues that the judgment should be construed in the context of the underlying facts and, hence, notwithstanding the CJEU's apparently anti-arbitration attitude, its holding is rather narrow. It gives an alternative theory on intra-EU BITs' fit in the EU internal market—based on European reality—showing that the complete invalidation of intra-EU BITs is flawed because the overlap between BITs and EU law is merely partial: BITs address a subject EU law does not. This Article's central argument is that intra-EU BITs accelerate the internal market and, hence, their suppression does not lead the European integration further, but holds it back. Finally, this Article argues that the prevailing pattern of investment protection is a global scheme that cannot be arrested through regional unilateralism as essayed by the CJEU.

From its first line, Günter Frankenberg's article Critical Comparisons, published twenty years ago, leaves no doubt as to its radical claim and aspiration. Nothing short of attempting to “re-think” comparative law, the article sets out to attack many of the dearly held beliefs in the scholarship and practice of comparative law. The beliefs, the history, the believers, their work and struggles – they are all there. Frankenberg plows through them in order to lay bare what he conceives of as being an incorrectly defended myth of scholarly objectivity among many of the field's pioneers and contemporary protagonists. Not being alone in his struggle of fiercely assailing the citadels of a nearly century-old comparativist scholarly venture, his crucial contribution to the field cannot now be denied. Whether we consider its open, frank, almost casual style, or its wide reaching theoretical reach, Critical Comparisons remains one of the most eminent articulations of the crisis of comparative law in its first century. At the time of the article's 20th birthday, it is time to recollect, reassess and reconsider its main arguments and to play them back to the author and his readers. After a brief reconstruction of the article's main contentions (Part B), this brief homage will contextualize the article within a larger attempt among comparativists and legal theorists to work towards a transnational legal science (Part C).

This article offers an opening to Central and Eastern Europe (CEE) situation and attacks against the judiciary in this region since 2010. The focus is not primarily on historical path dependence like the rest of this issue. Instead, the focus aims at the nature of attacks on the judiciary. Such attacks have appeared in CEE and the US in recent years. Its interest lies in explaining similar patterns visible in the judiciaries of CEE. Particularly, it looks at the current conditions in the Czech judiciary, political interventions in Poland since 2015 and in Hungary since 2010, and undermining of trust towards judiciary in the U.S., where attempts for delegitimizing the judiciary have happened since 2016. The article draws on similarities of attacks of authoritarian governments and responses of judiciaries. The authors highlight similarities and diversities of CEE countries 30 years after the fall of the communist regime and a path of these resemblances and varieties.