The first thing for European lawyers to understand about American law is that the distinction between public and private law is in America seldom noticed. American judicial institutions, unlike those in most other countriees, were not designed merely to resolve civil disputes, but were fashioned for the additional purpose of facilitating private enforcement of what in other nations would generally be denoted as public law. This purpose reflects widespread mistrust of the political institutions and government officials upon whom American citizens would have to depend if private law enforcement were not available, as generally it is. That shared mistrust has ancient roots and is reflected in state and federal constitutional provisions assuring the weakness and ineptitude of American political institutions other than courts, and in the habit of Americans, observed in 1835 by the French observer de Tocqueville, to litigate issues they care most about. As a consequence of these conditions, substantial reliance for the regulation of business is placed on private plaintiffs. Much regulation is done ex post the regulated business conduct in the form of civil money judgments rather than ex ante in the form of official approval or disapproval. It is provided by lawyers serving as private attorneys general. Its aim is to keep business executives alert to the risks their business decisions may impose on others.

Just one day after the attacks of September 11, 2001, the German minister of the interior, Otto Schily (SPD), demanded a new security concept. Immediately the existing security laws and precautions were placed under special scrutiny in search for any sorts of deficiencies. The results of these reviews were two legislative initiatives, termed “security packages” or “anti-terror packages,” which changed or altered numerous existing statutes. The new security laws contain a number of infringements into fundamental civil rights and liberties. The legislative process thus had to raise the issue of the relationship between security and civil liberties and weigh the balance between the protection of individual rights and collective security. This, however, does not constitute a new challenge for the German legislature. The collision of security interests with individual civil liberties has caused a legal problem in Germany for some time. September 11 might constitute a political watershed, but in the context of civil liberties in Germany, this date does not represent an important mark. The current measures have to be understood within the context of an at least thirty-year-long period of continuous weighing between security and freedom.

It is common for reformist academics, human rights advocates, and political liberals to bemoan harsher public attitudes towards crime and criminals, populist posturing by politicians, and more repressive penal policies. Some years ago, sociologist David Garland, a leading scholar of this subject, described increasingly repressive strategies of crime control in contemporary Britain, Australia, and the United States, ‘and elsewhere, too'. Some years later Hans-Jörg Albrecht called Garland to task for that ‘and elsewhere, too,’ noting that what happens in English-speaking countries does not inexorably happen elsewhere and that penal policies in many Western countries were not becoming more repressive or more politicised in parallel with American and British developments.

Tax evasion is punishable. However, by tax amnesty the state waives punishment and gives tax dodgers the chance to return to honesty. The “Act To Promote Tax Honesty” offers people who evaded taxes between the years 1993 and 2002 an opportunity to wipe the slate clean by declaring their concealed income up to 2005. This offer applies to income tax, corporate tax, turnover tax, wealth tax, trade tax, inheritance tax, gift tax and tax deductions pursuant to the Einkommensteuergesetz (Income Tax Act). Amnesty participants must pay a reduced tax rate of 25 percent on declared income within ten days after the declaration. For income and corporate tax the assessment basis is reduced to 60 percent. Thereby the new law grants the repentant tax evaders a tax rate of 15 percent rather then usual up to 48 percent on the profits they gained in the past ten years.

The possibility of monitoring telecommunications pursuant to § 100a of the Strafprozeßordnung (StPO – Criminal Procedure Code) existed in Germany for the last 35 years. Nonetheless, the surveillance of telecommunications is still the subject of controversy and dispute; not only in connection with new forms of communications but also with regard to the extent and grounds of application in “normal” cases of telephone surveillance.

Preventive detention is, together with life imprisonment, the harshest sanction in German criminal law. In the form of a “measure for improvement and security” of indeterminate duration, preventive detention potentially may be enforced until the death of the offender. Such a measure may be imposed together with a term of imprisonment on offenders regarded as dangerous and implemented after the fixed term of imprisonment has been served. The history of this provision goes back to a Nazi law against habitual criminals that was enacted in 1933 and retained after the end of the Second World War. In the context of the debate about the new criminal laws in the 1960s preventive detention was severely criticised. The result was that in 1969 both the formal and material requirements for the imposition of preventive detention were made more restrictive. This led, in turn, to it being imposed far less frequently. While in the 1960s more than 200 people were sentenced to preventive detention annually, by the early 1990s this figure was fewer than 40 a year. There was an equivalent reduction of the number of people in prison on preventive detention on a given day, from around 1500 at the beginning of the 1960s to fewer than 200 in the 1980s, that is, about 0.3 per cent of the total prison population.

In January 2003, two Yemeni citizens were arrested by German police forces at the airport of Frankfurt. The arrest took place pursuant to the request of an American judge of the United States District Court for the Eastern District of New York. The action was considered to be a blow against international terrorism and should have demonstrated the functioning of the German-American cooperation in the war against this scourge. However, due to general considerations as well as the concrete circumstances of the case, the extradition of the two persons took more time than would be expected from a smoothly running cooperation. All legal remedies were exhausted in the Yemenis’ efforts to avoid extradition to the United States, and even now, an individual complaint has been brought before the European Court on Human Rights in Strasbourg. The two Yemeni citizens were finally extradited more than ten months after their arrest in November 2003.

The right to the freedom of movement for all Germans is one of the nineteen so-called Grundrechte (Fundamental Rights) and is enshrined in Article 11(1) of the German Grundgesetz (Basic Law): “All Germans enjoy freedom of movement throughout the Federal territory.” On 17 March 2004, however, the Bundesverfassungsgericht (Federal Constitutional Court) handed down a decision in which it concluded that the restriction of freedom of movement for one clearly defined group of German citizens is constitutional. Pursuant to the Wohnortzuweisungsgesetz, or Residence Assignment Act, as amended in 1996, Spätaussiedler (ethnic German migrants from the former Soviet Union who are eligible for full citizenship status), may have their freedom of movement restricted during the first three years of their residency in Germany. The restriction on their freedom of movement is triggered if they seek to avail themselves of any of a range of social benefits, including: welfare, some forms of unemployment assistance (Arbeitslosenhilfe), or integration assistance directed at Spätaussiedler, such as a six-month language course. Confronted with the loss of these social benefits, Spätaussiedler who nonetheless choose to exercise their freedom of movement are eligible to receive only a subsistence level of support. This restriction applies, nearly without exception, to all Spätaussiedler for the first three years of their residence in Germany due to the high rate of reliance among Spätaussiedler in their initial years in Germany upon these forms of public assistance.

The present German media structures are subject to a fundamental process of self-transformation due to technological as well as societal dynamics. This is especially the case for public service broadcasting. In the post-war era, the public service networks were one of the central intermediary institutions of organized pluralism, serving both the state and society at large. It is not only the growing competition between public and private broadcasters that has led to dramatic changes to the role of public sector broadcasters. The public sector is also being challenged by the rise of the entertainment economy and a shift in focus from public to private affairs. This paper describes the hitherto established role of public service broadcasting and its present crisis. The paper then proposes a proactive legal and political regulatory strategy, which might help find a new role for public broadcasters in a much more fragmented society. The proposed strategy follows the paradigm of proceduralization, which is also prevailing in many other parts of the institutional structures of postmodern society.

With the progressive “accession” of the German Democratic Republic to the Federal German Republic after the reunification in 1990, Germany had to deal with a number of impediments emanating from the attempt to reconcile different political, social and legal models that developed during the forty years of separation between East and West Germany. Among these was the issue of how the property order in Germany would be influenced by seeking to integrate two such different socio-political and legal systems. As the discussion below indicates, the demands placed by this issue on the courts, legislature and administration of the newly reunified Federal German Republic still cause repercussions.

On March 3, 2004, the Bundesverfassungsgericht (German Federal Constitutional Court) decided that the regulations in the Strafprozessordnung (StPO – Code of Criminal Procedure) concerning acoustic surveillance of housing space (the so called “Großer Lauschangriff“) partly violate the Grundgesetz (GG – German Constitution or Basic Law). Article 13.3 of the Basic Law itself, which in 1998 integrated the right to acoustic surveillance of housing for reason of prosecution into the Basic Law, was nonetheless found to be constitutional. In the following comment, the legal status, the political background of the constitutional change in 1998 and the essential content of the Court's decision shall be examined in detail.

Migration linked to trafficking in women and prostitution is one of the darkest features of the lack of equality between women and men. This form of migration has developed into a gigantic, highly organized criminal trade linked to the exploitation of women. The main reasons for female emigration are poverty, discrimination against women, unemployment, under-education, lack of resources, and political and economic instability. Some women are also motivated to leave their country in order to have the opportunity to work abroad and see something of the world. Another reason is that the situation of prostitutes in other countries is sometimes even worse in the countries of origin than in the receiving countries due to their illegal status.

On January 20, 2004, during the State of the Union address, President Bush called for key sections of the USA Patriot Act to be renewed by Congress in 2005. When the president mentioned that provisions of the Patriot Act would expire at the end of 2005, there was applause from some Democrats. Then, when he called on Congress to extend the life of the Patriot Act, Republicans clapped enthusiastically.

Germany's Federal Constitutional Court held on June 9, 2004, that the weekend and holiday closing requirements of the federal Shop-Closing Act (Ladenschlussgesetz) are compatible with the Basic Law. At the same time, however, the Court's decision in this Weekend Shop-Closing Case situated the Act's Saturday closing requirement – and by implication its weekday closing requirements too – perilously close to the brink of unconstitutionality.

With its “Agenda 2010”, the German Government aims at a comprehensive reform of the German labour market. With regard to labour law, changes are planned notably concerning the protection against dismissal and limited-term employment contracts. For the first time, there will be a standard statutory claim to a severance payment (under certain circumstances) in the case of dismissals for operational reasons (redundancies).

In the recent discussion on Internet law and regulation it has often been argued that technical standards have a significant impact on the variety and diversity of the Net's communication flows. This Article extends this argument, focusing on the ability to constrain Net communication through “code” and “architecture” imposed by network technology, i.e., by a source of rule-formation and rule-making beyond the traditional law of nation-states. Although I am generally sympathetic to the position that a novel “Lex Informatica” poses new legal and political challenges for nation-states, it should, however, be clear from the outset that the attention for “code” and “architecture” is something different to a paraphrase of the ever-expanding role of technology in modern society. This has to be emphasized because the discourse of “the technological”, which was already a prominent subject in the anti-modernist debate during the Weimar Republic, still casts a shadow on the contemporary legal discussion about the role of technical standards on the Internet. Lawrence Lessig, for example, confronted with a strict anti-governmentalism of cyber-libertarians in the mid-nineties, argues in Code and other Laws of Cyberspace that the Internet is regulated by “code”, i.e. “the software and hardware that make Cyberspace what it is”. “Code” itself is embedded in an environment of economic power and corresponding political interests. In a nutshell Lessig paints a picture in which the Internet is developing towards an intolerable density of control by powerful coalitions of technical experts and economic enterprises. This view may be convincing in some respects, but with his accent on “code”, Lessig comes very close to the anti-modernist reaction to the growing significance of film and radio in the early 20th century, inasmuch as both strands are based on the misconception of a technological superstructure steering the (media) world and its further evolution.

In recent times, an increased awareness in public international law of the significance of human rights has given rise to the idea of direct access to compensation claims by individuals in the case of severe human rights breaches. This development has led to a number of actions for compensation in various jurisdictions. The Bundesgerichtshof (BGH – Federal Court of Justice) recently joined the series of decisions from higher courts addressing compensation claims for human rights breaches, handing down its landmark decision on compensation claims by Greek citizens whose parents were killed in a massacre in Distomo during the Second World War.

Lawyers are the engineers of the social sciences, and their doctors. Neither is good for reputation in interdisciplinary exchange. Social scientists often show contempt for a discipline that seems too close to reality to meet hard methodological standards, and too much concerned by pathologies that are beyond the reach of their methodological tools. As with many prejudices, there is a grain of truth in this one. But not all law is about making decisions and judgements in the face of a reality that is at best partly understood. The legal discipline has its own methodological standards. For the sake of internal clarity, it aims at parsimony. But modelling is not the legal path to methodological rigor. The legal equivalent boils down to one simple question: who asks whom for what? The law splits abstract problems into a series of cases. It reaches parsimony via the selection and sequence of cases. These hypothetical cases are like histological cuts through the social tissue. The legal discipline starts cutting at cases for which existing legal tools seem particularly wellsuited. If these cases are understood, the legal discipline then starts again with the more demanding ones. It is hoped that the sequence of cases leads to an understanding of situations that seemed inaccessible at the outset.

Police powers of discretion to discontinue criminal proceedings are rather exceptional in Europe, where most Criminal Justice Systems are based on some kind of principle of legality. Germany and England may be regarded as contrasting examples for different decision-making-models on the question whether or not to prosecute an offender. Germany, with a principle of compulsory prosecution theoretically guiding the work of public prosecutors—compared to England, where already the police have significant powers of discretion when deciding about a case. In recent years, however, the differences between the practice of these principles seem to have vanished: Whereas some German federal states have started to involve police in prosecution decisions, policy makers in England try to restrain the traditionally wide discretion of police in dealing with cases of minor crimes. Interesting lessons that might be useful for future harmonization of European criminal justice systems can be drawn from the experiences in both countries.

Recent German court decisions in the cases of Mzoudi and Motassadeq illustrate the dilemma of dealing with international terrorism in legal terms when politicians and intelligence services believe themselves to be above or beyond the law. These cases have already been discussed in a special edition of the German Law Journal. The focus in this article is to contextualise the outcome of these cases in the “war on terror” and to analyse legal retribution, vengeance and torture on a scale of possible ways to address mass violence. The escalation of Islamist fundamentalism has the potential to rock Western democracies in their very foundations. Counter terrorism-measures in stepping up security legislation is not dealt with as such here, neither is this a fully-fledged discussion of the law of peacekeeping and armed conflict with reference to “new terrorism”. The aim here is much more modest. It is a search for truth and ways out of a dead-lock.