How to reform the American health care system, now dominated by a decreasing number of multi-billion dollar managed care corporations, has occupied the public debate for many years. Recent news reports hefty increases in managed care premiums, benefit reductions, and an ever-growing number of managed care organizations refusing to treat Medicare patients. Numerous “patients’ bills” have been submitted in Congress, attempting to rein in some of the managed care cost containment practices. None have been adopted so far. At best, such bills would superficially treat some of the symptoms of an ill-functioning health care delivery system, poorly serving the population, insured and uninsured, and creating a plethora of ethical conflicts for providers battling to preserve an acceptable standard of care. Since the Clinton health care reform efforts failed in 1994, no one has proposed a fundamental revision of the system, and the United States remains the only industrialized nation without a universal health care system. The literature mainly reports on those – English-language – countries whose cost containment measures have resulted in overburdening the public health care system. There are, however, numerous European governments which succeed in stabilizing health care expenditures by mandating some sacrifices by all participants in the health care system while preserving universal access, comprehensive coverage, and the standard of care.

Does Derrida's death justify a special issue of this Journal, preceded immediately by a special edition on human rights? Can death justify anything at all? And what does this mean for the authors of this volume; are their texts doomed to remain unjustified, if no authority steps in to legitimate our endeavour to gather texts by friends in the name of Derrida?

Constitutional law is special not only for the salient importance of its substance, but also for its concentrated yet open form and terminology. Hardly surprising, therefore, the issue of how to interpret and analyze constitutional law is a commonly and sometimes hotly debated topic in most constitutional systems.

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).

On July 1st, 2005, the 7th Amendment to the Law against Restraints of Competition (Gesetz gegen Wettbewerbsbeschränkungen – GWB) became effective. The modernization of the GWB was indispensable in bringing German law in line with Regulation (EC) No. 1/2003. Regulation 1/2003 decentralized the enforcement of EC competition rules and aimed to pave the way for effective private antitrust litigation in Europe. Thus far, private parties have invoked Art. 81 and 82 EC Treaty primarily as shield by arguing that certain agreements were void. Only in very few instances were those rules used as sword to sue infringers for injunctive relief or damages. To stimulate private enforcement, Regulation 1/2003 inter alia abolished the European Commission's exclusive power to exempt practices which are prohibited pursuant to Art. 81 (1) EC Treaty and entitled national competition authorities and courts to apply Art. 81 (3) EC Treaty. Moreover, it empowered the European Commission to make written submissions in antitrust cases pending before national courts. In line with the new European approach, the German legislature has overhauled the hitherto existing rules of German competition law considerably. This article will briefly describe the general changes brought by the reform and take a closer look at the amended rules relating to private antitrust litigation before German courts.

Each academic culture has its own customs and rituals. In German public law, the annual meeting of public law professors is much more than a conference. Together with their Swiss and Austrian counterparts, German public law professors have met annually since 1922 (with the exception of 1932-48) to discuss contributions carefully prepared and presented by selective speakers, which are meticulously analyzed by their audience. Failure in the eyes of colleagues may ruin an academic career, although participants report that the traditional rigidity has been eased in recent years. Given the prestige and exclusivity of the meeting, it is not surprising that it was copied by Germany's university assistants in public law, who under the German university system often have to wait until the end of their thirties to step out from the shadow of their “academic fathers” and obtain professional independence as professors in their own right. Thus, “young” German public law assistants – in partnership with their Austrian and Swiss counterparts – have also been meeting regularly over the past 45 years to debate various topics of public law and position themselves within the aspiring next generation of public lawyers; and the 2005 meeting in the Westphalian city of Bielefeld signals that the debate on German public law will indeed be enriched by some promising new scholars.

In the crusade against organized crime, it has become more and more accepted that the often trans-border crime cannot sufficiently be tackled by enhanced enforcement and cooperation between states alone. An alternative tool may be what can be termed the instrumentalization of the victims to enable the prosecution of organized criminals. This brings to the fore the dilemma that the victims are often themselves offenders, as a rule, breaching provisions of immigration law. Therefore, it is typically not in their interest to bring offences of trafficking and smuggling, of which they are the victims, to the attention of the authorities. Initiatives at the international and EU/EC level, which grant limited residence rights to those victims who collaborate in the prosecution of the offenders, attempt to deal with this conflict of interest. This implies at least a partial recognition of the status of the victim.

In its recent decision of April 12, 2005, Germany's Federal Constitutional Court (FCC) addressed concerns that advances in the technologies of surveillance will erode fundamental rights. Though it rejected the petitioner's call to limit use of the Global Positioning System (“GPS”) to track the movements of suspects, the Court did warn that surveillance technologies working in tandem posed privacy risks that were greater than the sum of each one working alone. The Court required investigators from different agencies and states to coordinate their activities and disclose all ongoing surveillance when seeking judicial approval of additional methods and technologies. It likewise cautioned the Bundestag (German Federal Parliament) to monitor advances in surveillance technology and to develop new statutory safeguards that would protect personal data by limiting the use of more powerful innovations. Yet the Court's opinion left many questions unanswered. It did not explain how legislators or investigative agencies could avoid unnecessarily and intrusively multiplying the use of surveillance, given the overlapping jurisdiction of intelligence agencies with state and federal police. And insofar as the German Strafprozessordnung (Criminal Procedure Code – StPO) regulates only those modes of surveillance that produce criminal prosecutions, statutory suppression remedies have no clear impact on the investigative use of surveillance for purely preventive or intelligence-gathering purposes. My essay will explore the implications and limitations of the Court's opinion with an eye on analogous American law (introduced to gain a comparative perspective.)

Jacques Derrida. J.D. for short. And J.D. of course is titular. It is the acronym for Juris Doctor. It signifies a lawyer or one wise in the law. If we are to recollect and celebrate his life in its juridical context and significance then Jacques Derrida, J.D., is not a bad place to start. Technically, of course, and despite the legal sounding acronym, J.D. was not a lawyer. He did, however, hold a visiting appointment at a Law School in New York. My law school in fact. Let me add, at the risk of getting personal for a moment – and if not now, when? – that in many ways I am here because he was. And then also some of his most influential articles were on the subject of law or were delivered and published first in a legal forum. His essay on Kafka, on the law of genre, for example, and then again his lengthy and widely circulated exposition of “The Force of Law.” He kept coming back to law: he inhabited its margins, searched for its supplements, dwelt on its traces.

For the German-trained lawyer, the process of coming to terms with the constitutional law of the United Kingdom can be disconcerting. This disorientation arises principally because the study of constitutional law on the other side of the English Channel seems to lack an appropriate object to deal with. State order in the United Kingdom is not based on a definitive constitutional document created at a particular point in history which would be in any way comparable to the German constitutional document, the Basic Law (Grundgesetz). In spite of this, as Helmut Weber so aptly noted in a talk before the Centre for British Studies of Berlin's Humboldt University, “British textbooks on constitutional law […] are no less numerous and no less comprehensive than German textbooks on Verfassungsrecht”. This observation is not in the least surprising. Even though it may be disputed that a UK constitution exists in the narrower and more common continental European sense of the term, it cannot be denied that the learned discourse forming the body of constitutional scholarship in the United Kingdom is regarded by jurists not only in Europe, but in all corners of the globe, as an important standard for the scholarly examination of their own constitutional systems. This is certainly due in large measure not only to the centuries-old traditions of English constitutional law, but also to its striking intellectual depth and variety.

“Die Geschichte ist Gegenstand einer Konstruktion, deren Ort nicht die homogene und leere Zeit sondern die von Jetztzeit erfüllte bildet.” wrote Walter Benjamin. “So war für Robespierre das antike Rom eine mit Jetztzeit geladene Vergangenheit, die er aus dem Kontinuum der Geschichte heraussprengte.” (“History is the subject of a construction whose site is not homogeneous, empty time, but time filled full by now-time. Thus, to Robespierre ancient Rome was a past charged with now-time, a past which he blasted out of the continuum of history.)

On April 12, 2005, the Bundesverfassunsgreicht (German Federal Constitutional Court) ruled that regulations in the Strafprozessordnung (StPO – Code of Criminal Procedure) concerning police use of global positioning systems (GPS) did not violate the Grundgesetz (GG – German Constitution or Basic Law) so long as the investigators did not use the technology in conjunction with other surveillance methods that could lead to the construction of a personality profile of the suspect observed. The following comment examines the facts of the case and evaluates the Court's decision in detail.

Innumerable attempts have been made to explore the theoretical nature of federalism. Due to the long history, worldwide existence and interdisciplinary character of federalism, a plethora of literature has been written on the topic. Yet, these endeavours have not even resulted in a clear and commonly used definition of the term. Surely, it is one of the great dilemmas of this field of research that despite so much discussion, there is no settled common denominator of ‘federalism'. Whereas practical studies and exchange of experience between the various federal systems offer a more conventional research arena, comparative theoretical approaches are much more seldom. This is not the least because of the tremendous semantic challenges of a comparative theoretical approach. At first glance, it is sometimes difficult to understand the terminology of federalism, the meaning of which differs according to the perspectives of constitutional law, political science or economics. Even more difficulty arises when the substance of federal theories is discussed. Again, differences between theories may be due to different academic approaches, particularly between understanding federalism as an overall principle or as a more concrete concept of a federal state and, in particular, whether the constituent units of a federal state are states, and, if states, whether they are sovereign.

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.

The European Court of Human Rights, on 30 June 2005, handed down its long awaited judgment in the case Bosphorus Hava Yollari Turizm v. Ireland. The case concerned the responsibility of contracting parties for legal measures induced by the European Community.

In the last years, several Muslim associations applied at the competent Ministries of Education of the German Federal States for the introduction of Islamic religious instruction in public schools. These applications raise a series of legal questions, in particular, whether the States are obliged to allow associations to teach their version of Islam in schools. Of particular concern is that this religious instruction may not have a religious purpose, but rather a political, or even militant or criminal, purpose. Further, there is the possibility that the associations may invite students to take part in a “holy war”, to call for racial hatred, or to proclaim that women were inferior human beings. The answer to these questions is laid down in Article 7 paragraph 3 of the German Basic Law which is a typical provision of the German Law on Church and State that is molded not by a strict separation or laicism as it is, for instance, in France but by a cooperation of the State and the religious communities.

The primacy of Community law over national law of the EC/EU Member States was recognized as one of the constitutive principles of the Community legal order as early as before the signing of the Treaty establishing a Constitution for Europe on 29 October 2004. The primacy principle together with the principles of direct effect and of uniform applicability are believed to constitute not only the foundation of effectiveness of the Community legal order but also play the role of the pillars of the unofficial European Constitution. The primacy principle is even seen as the embodiment of actual transfer of constitutional power to Europe.

The European Court of Human Rights has issued a judgment which adds to the developing law of Article 6, Section 1 (right to a fair hearing) of the European Convention on Human Rights (ECHR or “the Convention”) and which sheds light on Article 10 (freedom of expression) and its interaction with the law of defamation. Practically, the decision in Steel and Morris v. the United Kingdom (hereinafter referred to as Steel) is likely to prompt a review of the availability of legal aid for defendants in civil cases in the United Kingdom (“UK”), and may be a small step towards balancing the arms in ad terrorem suits brought by large corporations against private citizens in order to silence public debate.