This essay is an outcome of the pandemic, which in 2020 pushed me to reorient a sabbatical to studies of German legal culture. It combines an autobiographical background in Germany in the 1950s and 1960s with a longstanding interest in legal history, legal pluralism, legal culture, and gender and law. These fields are addressed from different angles, which demonstrate considerable changes of political and legal systems and cultures in German (speaking) areas. Within the last half century, a culture of silence and shame has attempted to come to terms with a patriarchal past, while also combining political cultures and economies from two parts of Germany, which merged a generation ago, and are still very diverse.

The ECB has two mandates its primary and secondary mandate. Its primary mandate has been the focus of many discussions but its secondary mandate is less frequently discussed. Nevertheless this mandate has important objectives and should not be considered obsolete. This article examines the legal status of the secondary mandate of the ECB with regard to climate change. In particular this article will consider the role of the secondary mandate with regard to the Digital Euro and energy targets. The Digital Euro can be used as a monetary tool and improve payment systems. However, depending on its design the Digital Euro can use a considerable amount of energy. This article concludes that if the design of the Digital Euro does not impact the monetary objectives, the secondary mandate of the ECB determines the design of the Digital Euro.

This article argues that given the globalization of legal education and legal services, professional legal ethics should incorporate not only a cosmopolitan dimension but also sentiments such as compassion, respect, and sensitivity for human suffering. Inspired by the philosophy of Immanuel Kant and his theory of education, this article seeks to address some of the limitations of the professional codes of conduct for barristers and solicitors, in England and Wales, by applying a moral cosmopolitan approach to the teaching of professional legal ethics. This normative approach is underscored by a commitment to moral duties to persons irrespective of their nationality, gender, religion, or any other defining characteristic. These duties include promoting client autonomy and engaging in law reform. This article also argues that Clinical Legal Education programs are an appropriate methodology for teaching moral cosmopolitan ethics.

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.

EU institutions have argued on several occasions that national and EU citizenship should not be awarded without any genuine link with the Member State concerned. Some scholars have adopted the same position, justifying their position referring to the genuine link requirement established by the International Court of Justice in Nottebohm. This has prompted criticism from legal scholars, who point out that Nottebohm was wrong as a matter of international law and moral principle. This paper shows that supporters and critics have failed to recognise that they have been talking with different conceptions of the genuine link requirement in mind. The question of whether to apply a genuine link requirement for the recognition of nationality is altogether different from the question of whether to apply a genuine link requirement for the acquisition of nationality. Nottebohm concerns the first; the arguments of EU institutions the second. The argument of EU institutions cannot therefore be dismissed by dismissing Nottebohm. I subsequently explore the normative arguments for predicating the boundaries of national membership on a genuine link requirement. There are weighty moral reasons for member states to condition the acquisition of national and EU citizenship on the presence of a genuine link. Finally, moving from the normative to the practical, I argue that such a requirement would have far-reaching consequences (targeting not just investor citizenship schemes) and cannot be enforced as a requirement under EU law.

This article discusses the troubled relationship between contemporary advertising technology (adtech) systems, in particular systems of real-time bidding (RTB, also known as programmatic advertising) underpinning much behavioral targeting on the web and through mobile applications. This article analyzes the extent to which practices of RTB are compatible with the requirements regarding a legal basis for processing, transparency, and security in European data protection law.

We first introduce the technologies at play through explaining and analyzing the systems deployed online today. Following that, we turn to the law. Rather than analyze RTB against every provision of the General Data Protection Regulation (GDPR), we consider RTB in the context of the GDPR’s requirement of a legal basis for processing and the GDPR’s transparency and security requirements. We show, first, that the GDPR requires prior consent of the internet user for RTB, as other legal bases are not appropriate. Second, we show that it is difficult—and perhaps impossible—for website publishers and RTB companies to meet the GDPR’s transparency requirements. Third, RTB incentivizes insecure data processing. We conclude that, in concept and in practice, RTB is structurally difficult to reconcile with European data protection law. Therefore, intervention by regulators is necessary.

The recent global growth of anti-democratic sentiment has renewed the question of when a political party should be barred from the electoral arena. In modern democracies, even explicitly militant ones, constitutional mechanisms for banning political parties are rarely used. The recent decision by the German Federal Constitutional Court (BVerfG) not to ban the National Democratic Party, despite its neo-Nazi platform, is an example of this restraint, with the BVerfG introducing a new, stricter criterion called “potentiality” for the dissolution of a political party under the German Basic Law. This article draws on neo-institutionalism and comparative constitutional law to explore the democratic ramifications of three different European thresholds for banning an anti-democratic political party: the presumptive test previously used by the BVerfG, the new potentiality criterion introduced by the BVerfG, and the European Court of Human Rights’ requirement for the party in question to be an imminent threat before it can be dissolved.

Climate change is profoundly modifying the earth’s environment, making certain territories uninhabitable. Faced with this known phenomenon, this article outlines a research approach for assessing the law’s role in encouraging states to preemptively protect individuals who live in deteriorating territories, notably by enabling mobility. The question is, however, far from simple, insofar as most of the ways to adapt to climate change—and particularly mobility, which has important human and social implications—require profound societal choices that anthropology has the tools to study. I therefore accompany my legal research with an anthropological approach centered around ethnography conducted at three sites—France, Guadeloupe, Senegal—where state-sponsored mobility is either being considered or already being used as an option to confront the progressive disappearance of land that is being swept away by the sea.

The suggestion that the new private law theory would have to stand the test of acceptance by the global legal community raises a question. Who is that “global legal community?” And does it go beyond Europe? Close reading demonstrates that the non-European world is present and hidden at the same time. It is present because much of the material presented, many of the theories discussed, have transnational materials. However, the non-European world is hidden at the same time because it remains unaddressed, marginalized, and ignored. Including the Global South would make necessary a more radical pluralization of private law theory. This opens up the possibility of new, very different idea of a global legal community that is more improbable but also more attractive.

This article explores the debiasing role of the mediator in the setting of international disputes. Starting from the rational choice theory, this article examines the choices that international disputants must weigh when deciding how to proceed with their conflict. International actors are assumed to be rational and negotiate settlements that are beneficial to them. Their alternatives to a negotiated settlement include both adjudication and continuation of the conflict. Puzzlingly, despite the advantages of negotiated settlements, many international disputes are not resolved in the form of a settlement. Instead, States seem to prolong conflicts or follow costlier routes of formal adjudication. Behavioral Law and Economics insights on the biases of disputants partly explain this phenomenon. The article contributes to the behavioral discussion by examining two separate categories of biases, i.e., biases when deciding to enter negotiation and biases during negotiation. Following that, it suggests that the specific characteristics of the process of mediation and of the mediator, in particular, can act as debiasing instruments. The article concludes with normative suggestions for wider incorporation of mediation within the international dispute settlement setting.

Against the backdrop of an evolving landscape describing data driven research, this article discusses the role of data protection laws in shaping a free flow of research data. In particular, the analysis inquires whether European data protection law hampers or encourages data-driven research. The analysis critically challenges the shared belief that the more severe data protection regime laid down by the European legislator adversely affects data flows and with that data-driven research. This is contrary to what occurs in the United States, where the more fragmented and less developed data protection framework facilitates data flows and related innovation patterns. We show how research objectives through data re-usability have been very recently given primary importance in the GDPR, where they find a formidable ally enabling the re-usability of public data by businesses and of private data by public institutions, for either public interest-related research purposes or commercially oriented innovation purposes. We argue that the GDPR differently promotes research-valuable data flows in consistency with an emerging principle of free movement of personal data. In order to ground this statement, our analysis links to this principle three-directional research regimes emerging from the GDPR.

This article assesses how the bounded rationality of the public, planning authorities, and experts distorts the environmental assessment (EA) process and how the international law on EAs could overcome such distortions. Data was gathered through the analysis of relevant law and policy documents, as well as authoritative court texts. This article concludes that the current international law on EAs does not sufficiently take behavioral insights into account. Several ways as to how insights on bounded rationality could be incorporated into the international law on EAs are discussed.

This article examines the history of technological policing in Germany from the 1970s to today. Combining perspectives from intellectual history and legal theory, it explores the ideas and practices of Horst Herold, former President of the German Federal Criminal Police Agency. Herold’s thought was both deeply influenced by cybernetics, a form of techno-utopian thought developed during World War II as well as the basis on which technological policing was first put to the test in Germany. The article illustrates Herold’s hopes for a cybernetic transformation of police, law, and society. It locates Herold’s cybernetic legal theory within a broader context of shifting legal paradigms of German public law towards the so-called preventive state in the 1970s and 80s. Crucially, an anti-legal affect is revealed to lie at the center of Herold’s ideas. His concept of cybernetics ultimately serves to supplant the rule of law. In the concluding part, the article assesses Herold’s legacy and attempts to both critique it and point towards a productive way forward by invoking modern, second-order order cybernetics. The article argues—perhaps counterintuitively—that Herold’s ultimate failure was not adapting cybernetics but rather not staying with it all the way, supplanting its weaknesses, and drawing on its strengths.

The new European economic governance has made the creation or reform of independent fiscal institutions (IFIs) compulsory, in particular for Eurozone countries. While these institutions have been subject to extensive investigation by the economic literature, a constitutional analysis of their prospective and actual impact on national legal systems is lacking. In fact, depending on their design and powers, they could alter the ordinary inter-institutional dynamics on budgetary decisions. IFIs could redress the marginalization of parliaments in budgetary procedures in so far as they are able to offer reliable and independent information from the executive, and should mechanisms of “comply or explain” be put in place. By contrast, in the event an IFI operates within the executive branch and is not autonomous in the exercise of its mandate, parliamentary accountability could be further jeopardized. IFIs could also affect democratic rule-making over the budget, should their technocratic determinations be able to replace those of the budgetary authorities. Through a comparative constitutional analysis and based on selected case studies—France, Italy, Spain, and the Netherlands—the article aims to assess the constitutional impact of IFIs on parliaments and on the problem of information asymmetry on the budget.

My article aims to analyze the conflict between the duties deriving from the supranational deontological codification under a philosophical point of view. Specifically, I will discuss both rules implying the independence of a lawyer and the obligation to ensure that the legitimate interests of the client and the proper administration of justice are protected. I will conduct an analysis about the relationship between moral and juridical duties through a few parts from The Metaphysics of Morals, published by Immanuel Kant in 1797. Afterwards, I will try to verify if Kant’s conception of moral and juridical duties can provide a lawyer with the guidelines for the conflict resolution. I will suggest a meeting point capable of satisfying at the same time those interests whose protection is conflictingly established by the ethical code, and which is represented by the Alternative Dispute Resolution, precisely by the Assisted Negotiation procedure. Ultimately, I will propose an approach based on the identification of an agreement as a way to solve the conflict between the lawyer’s duties.

This review of Grundmann, Micklitz and Renner’s New Private Law Theory begins by noting its historical perspective, and the fruitfulness of setting alongside each other seminal writings of European jurists from the early twentieth century with the contributions of American law and economics and critical legal scholars from the late twentieth and early twenty-first. A century ago, legal scholarship was addressing the “social question:” How to accommodate private law to the demands of a rising working class? Today, steepening inequality and polarization have brought the social question, and with it class politics, back into view. Using as a case study the mass sackings engineered by the shipping company P&O in March 2022, we can see that today’s private law is deeply implicated in the generation of structural disadvantage. A private law more concerned with extracting and hiding wealth than creating it might be thought to have a limited future.

Environmental rights such as the right to a sound environment and rights of nature, while playing an increasingly important role in global environmental governance and protection, frequently do not correspond to articulations of fundamental experiences of injustice by communities particularly affected by serious environmental degradation caused by, for example, extractive activities or major infrastructure projects. We present three empirically grounded case studies that employ concepts and methods from anthropology to demonstrate this. The work is still in progress, but sufficiently well advanced to present some findings. Our ethnographic research in Ethiopia and Mongolia reveals that vulnerable local communities take recourse to constitutional environmental rights far less often than expected. The reasons for this range from rule-of-law issues to local perceptions of vulnerability and relevant norms. Conversely, where environmental rights are demanded or claimed at the local level, they are often not translated adequately into the law of the state. Our case study on Ecuador, where rights of nature as a specific type of environmental rights have been included in the constitution, shows that transfers from local practice, while potentially having a transformative effect, may lead to conceptual selectivity, ambiguity, lack of clarity, and overlaps with existing state norms and, hence, redundancies. Environmental rights are, therefore, a moving target whose concrete added value hinges on context—as methods of law and anthropology serve to illustrate.