Though Company Laws of the United States and Germany have much in common, they are opposite in many important ways. While the Anglo-Saxon Law derives from Common Law, German Law has its origin in the Civil Law.

La Porta et al. are not the only ones highlighting that the quality of shareholder protection varies across different jurisdictions depending on which legal system family the jurisdiction belongs. Pistor and Siems went a step further, highlighting that variations in market systems are explainable by more fundamental factors than law, like differences in the underlying ground rules.

Since 1990, both the U.S. and Germany have substantially reformed their corporate governance regimes as part of an emerging paradigm of international finance capitalism increasingly dependent on securities markets and private shareholding. Corporate governance reform and the emergence of finance capitalism, however, present a double paradox. First, the development of financial markets and the increasing importance of market relations, often linked to the diminution of state power, have been accompanied by a substantial and ongoing expansion of law and regulatory capacity into the private sphere to boost shareholder protections. Second, center-left parties in both countries took advantage of economic crises to press for pro-shareholder reforms against center-right opposition allied with managerial elites. This article explains these developments by analyzing reform processes in United States and Germany over the past decade. It argues that changing economic conditions empowered reformist state actors, and that they have played a central and largely autonomous role in driving the substantial institutional change underway in contemporary capitalism. The analysis also suggests that political conflict over corporate governance is likely to intensify, on the right and the left, as it impinges on the basic allocation of power within corporations and thus the political economy.

A foreign jurist, on looking into the German literature on constitutional law, will soon and suddenly be struck by a peculiarity of this scholarship: the unusually strong emphasis on a marginal area of constitutional law, namely, the state of emergency. The inquiry is, of course, well-known in other countries, but the passion for, and the theoretical effort expended on, this marginal area is unique to Germany.

However, this disinterest on the part of other constitutional lawyers, and the recent decline in interest on Germany's part, could yet change, turning the marginal area into a highly current issue. Combating terrorism raises questions for which the German patterns of argumentation, fine-tuned in the academic debate on the law of state of emergency, may provide a useful framework for discussion. The questions arising in the context of the struggle against terrorism test the limits of positive regulations in extreme situations, leading ultimately to the same underlying dilemma as the law on state of emergency, though with different terminology. In this sense, the constellation of legal issues involved in combating terrorism could be considered as the law on state of emergency “incognito.” However, the various argumentative patterns for law on state of emergency have not yet been directly transferred into the very timely legal discourse on counterterrorism (and no such attempt is made here), but such a transfer of argumentation suggests itself. As such, the topic has a “potential currency,” even if traditional issues of state of emergency themselves no longer count among the most current issues.

More than three and a half years ago, the German law of obligations, codified in the second of the five books of the German Civil Code (Bürgerliches Gesetzbuch, BGB), underwent its greatest reform since the BGB was enacted on 1 January 1900. The Act to Modernize the Law of Obligations, the Schuldrechtsmodernisierungsgesetz, which came into force on 1 January 2002, dramatically altered the law of obligations. Whereas legal practitioners had almost no time to adapt to the new provisions, at least the German courts were granted a grace period. Nevertheless, by now the first cases involving the modernized law have reached the benches of the Bundesgerichtshof (BGH – Federal Court of Justice).

This article deals with “one of the currently most controversially discussed questions” of the law of obligations: Whether a buyer, who cures a product's defect can claim reimbursement for the associated expenses (Aufwendungen) from the seller, without giving the seller an additional period of time for supplementary performance (Nacherfüllung). This manner of bringing the product into conformity with the contract can be described as a premature self-cure (verfrühte Selbstvornahme).

For some years now, reproductive medicine has been capable of performing the act of human procreation in vitro, fusing the female ovum and the male semen outside of the human body. The embryo created by this process is then “implanted” into the uterus of the woman who had previously provided the ovum. This technique serves to overcome certain physical defects - such as a malfunction of the fallopian tubes - of a couple that wants to have children.

The Bologna Process is a dramatic development that is less than ten years old, but already it has significantly reshaped higher education in Germany and in Europe. This article is based on my research regarding the history and objectives of the Bologna Process and Bologna Process implementation in Germany. It contains my reflections about the Bologna Process and German legal education and my recommendations to the German legal education community. In order to understand these reflections and recommendations, one needs a certain amount of background information about both the Bologna Process and German legal education. The sections that follow provide that background.

The Treaty Establishing a European Constitution seems to have failed. The problems continue to exist: a centralizing tendency is inherent in the European Union like in supposedly every federal or supra-national system. This is why, for years, there has been a growing demand for a barrier against the subtle loss of competence for the Member States and their sub-national units, which also potentially threatens the acceptance of the Union's legal acts and therefore the progress of European integration overall.

Sometimes it seems that the EC directives could be a framework for the Canadian anti-discrimination system, too. They open ways to create procedures which are working for a long time in Canada. This does not mean this can be adopted in EC member states because there are too many peculiarities amongst domestic legislation. The problem seems to combine the directives, formed by influence from the North American legislation,130 with the European understanding of law. Especially in Germany, where employees are well protected by the law, the well-balanced system of rights is in danger. This danger does not seem to be banished by the new AGG which adopted many regulations of the directives without giving answers to questions of its implementation. But seeing the practice in other countries could bring thought-provoking impulses for the embodiment and the use of anti-discrimination law.

In 1931 Carl Schmitt published an article titled “the turn to the total state.” The total state that Schmitt describes is not yet a totalitarian state. Germany is still a liberal democracy and the Weimar Constitution is still the supreme law of the land. But the total state Schmitt describes is a state in which the traditional lines between the sphere in which the private law society governs itself and the sphere of state intervention, or the public domain, have been undermined. According to Schmitt, the pluralistic forces of civil society have captured the state and made it an instrument to serve their purposes. Everything is up for grabs politically. It is a state of political mobilization and deep ideological conflict, reflected in the plurality of deeply divided political parties in parliament. It is possible to distinguish between three features, which together illustrate the total prevalence of politics over law underlying “the turn to the total state.”

In 1969, the language philosopher John R. Searle published his book “Speech Acts: An Essay in the Philosophy of Language,” wherein he developed the theory of speech acts of John L. Austin into a more normative direction. Though the philosophy of language is not the main issue of this article, Searle spoke out, for the first time, on a fundamental distinction between two different kinds of rules, namely constitutive and regulative rules. Actually, since that time the distinction between these two different types of rules has become fairly common in legal theory, but not in criminal procedure law or in the theory of procedure law. Only sporadically have German legal scholars gone into this distinction. This is astonishing with regard to criminal procedure law in particular because, even before 1969, some scholars had construed procedural rules as rules of a game. In doing so, they addressed an important characteristic of constitutive rules, namely the expression of the conditions of a certain result. However, the construction of procedural norms as rules of a game is imprecise because not all procedural norms actually work in this way. This becomes clear when one transfers Searle's distinction to criminal procedure law.

Gustav Lambert Radbruch (1878-1949) and Hermann Kantorowicz (1877-1940) were undoubtedly two of the greatest legal scholars in Germany in the first half of the twentieth century; for some of this time arguably the greatest. It is a happy coincidence that they both attended the seminar of the criminologist Franz von Liszt in Berlin at the same time in 1903. Although very different in temperament and not always in agreement, they were immediately drawn to each other, highly respectful of each other's undoubted intellect, never jealous of the other's achievements but always altruistically supportive. Though together for only four months initially, they maintained regular contact through letters and quickly forged a close and life long friendship.

The US/UK-led war against Iraq, and Germany's contribution to this war, met with gravierenden völkerrechtlichen Bedenken (grave concerns in terms of international law), as evidenced by the extensive judgement of the Bundesverwaltungsgericht (BVerwG – German Federal Administrative Court) from 21 June 2005. This is a landmark decision in at least two respects. First, it appears that the BVerwG's opinion is the first on the legality of the war on Iraq by a court of law. Second, the Court took a broad view regarding the question of law with which it had been presented: under what circumstances may an army officer lawfully refuse to follow the order of a superior on the grounds of his constitutional right to freedom of conscience?

This article attempts to present a comprehensive and coherent picture of the position occupied by science under the SPS Agreement and in the SPS case law. It claims that the approach adopted by the Appellate Body reflects the explicit language of the SPS Agreement and is predominantly based on a technical paradigm. In consequence, science plays a critical role in distinguishing between legal and illegal SPS measures.

The article argues that such an approach is generally compatible with the text of the SPS Agreement and provides a coherent SPS system. However, it also identifies certain areas, which lack coherence, as certain standards seem to violate the right of the Member States to establish an appropriate level of protection. These are: ascertainability of the risk as a precondition for valid risk assessment; strict specifity of the risk assessment in low-risk situations; the proportionality between the risk identified and the SPS measure; the notion of negligible risks; and the concept of likelihood in the quarantine risk assessments. The article claims that these standards cannot be generally applied in SPS disputes as, in certain situations, they will result in the violation of the right of the Member States to establish an appropriate level of SPS protection. Finally, a number of specific issues, which require resolution, are highlighted, namely the quality of minority scientific opinions, the relationship between the insufficiency of scientific evidence and scientific uncertainty. The article suggests that the ultimate role ascribed to science under the SPS Agreement can be assessed only after an interpretation of those issues is provided by future case law.

Lawyers are trained to apply rules to certain situations, and thus determining whether a particular behaviour is norm-conformant or not. It is generally assumed that rules as such exist and are applicable in a given situation. While there might be a debate about identifying the appropriate normative set among competing legal frameworks, it is generally taken as a given that binding rules exist and that they are habitually complied with. With regard to international relations, this basic ontological outlook contrast somewhat with the analytical conceptions taken by other disciplines which rely on other explanatory variables – notably power and interest – to account for the behavioural patterns of states.

In a remarkable decision the Federal Constitutional Court has declared a prominent provision of a new German anti-terrorism law unconstitutional and void. The decision attracted wide attention for its treatment of constitutional questions of human life and dignity as well as the constitutional limitations of so-called “security statutes.”

Online dispute resolution (“ODR”) can be conceived as a means to achieve some of the most powerful legal ideals of the Western legal tradition. Among these are:

(1) Legal Certainty: In making individual plans, decisions, and choices everyone is entitled to know what the law is in advance. Therefore, laws shall be public, written in everyday language, and shall not be changed too often. The application of laws shall be a simple operation (legal syllogism) so that citizens do not need attorneys, and judges are just la bouche de la loi (Montesquieu).

Martti Koskenniemi's From Apology to Utopia is the most significant late 20th century English language monograph in the field of international law, and it is terrific to see it re-issued. The book offers a comprehensive reinterpretation of the doctrinal materials and intellectual history of the discipline. It became an instant classic in the analysis of law's rhetorical structures, and it could well turn out to have been the last great original treatise in the international law field. It both synthesized the materials and demonstrated the impossibility of their being synthesized in a stable and intellectually coherent fashion. The treat in this re-issued edition is Martti's new epilogue. In it, he reflects on what he was seeking to achieve in ways that will open the text to new readings while remaining, I think, true to the spirit of the initial project.