Privacy and Data Protection by Rules Rather than Principles

There is hardly any field of the law that has more diversity on both sides of the Atlantic than privacy and data protection. Common opinion often reduces that diversity to a matter of "strong" protection in Europe versus "weak" protection in the United States of America. Discussions about Safe Harbor and Privacy Shield regulation reinforce this perception. This paper, however, argues that the privacy divide is hardly a matter of strong or weak protection, but has deeper roots in different approaches to constitutional rights. While Europe, following the lead of the German Federal Constitutional Court, conceptualizes legal precepts about privacy and data protection as principles with a broad protective scope that result in balancing procedures, the protection in the U.S. is rule based. This results in a more rigid system with stronger emphasis on the legislatures of the states rather than flexible adjudication by the courts

Direkte Demokratie in der Schweiz – Länderbericht 2008/2009

This is the first country report in the new yearbook. It outlines the different instruments of direct democracy in Switzerland. Some of these instruments, like the public initiative for a total revision of the constitution, have been around since the inception of the federal state in 1848. Others, like the public initiative for constitutional amendments (partial revisions) – being the most popular instrument of all – have been added later (1891). The report presents an outline of the different stages of public initiatives and lists all active initiatives within theses stages

Direkte Demokratie in der Schweiz – Landesbericht 2012

This country report analyzes the surprising success of the Chalet-Initiative. The Initiative imposes a strict limit of 20% on secondary residences within each community, thereby in effect ending construction of vacation residences in the mountainous cantons of Switzerland. Accordingly, the dividing line of the vote runs between the city dwellers intent on environmental protection and the rural population relying on construction to ensure economic progress of their canton. The report also looks at the collection time for initiatives and finds strong differences between "quick" initiatives with broad public support that need as few as 157 days to reach the 100'000 limit and "slow" initiatives in need of most of the 549 days available (18 month limit). The average over the last 10 years is a collection time of 478 days, signaling particular support for all initiatives that need less than 200 days. Finally, the report looks at the problematic procedure for signature authentication by the communes. Prone to delay, that requirement has already resulted in the failure of referendums that should have succeeded in collecting the required 50'000 signatures

Farewell, welfare state – hello, welfare regions? Chances and constraints of welfare management in the German federal system

The German welfare state is in crisis. Alarming long-term demographic trends, the still not fully digested consequences of German unification and the current economic downturn in much of the Eurozone have combined to create an urgent need for welfare reform. Yet the constitutional arrangements which govern the German political system, and well-entrenched political practice, mean that any such reform process is a daunting challenge. Thus, the welfare crisis is also a crisis of German-style co-operative federalism. Current empirical evidence makes for uncomfortable reading, and triggers debate on the nature of the German federation: have the two constitutional principles of federalism and establishing equal living conditions throughout the federation become mutually exclusive? However, as much of the welfare state is centred on the best utilisation of scarce financial resources, it is debatable to what extent alterations in the functional distribution of welfare responsibilities among the territorial levels of government can be regarded as a solution for the current problems. The article concludes that in the search for long-term sustainability of the welfare state the territorial dimension is likely to remain a secondary issue

Constitutional Law

Research on constitutional law has come in different waves mirroring the development of states in recent decades. While the decolonization period of the 1960s still kept the old ties of constitutional “families,” comparison based on such ties has become ever less persuasive since the 1980s wave of constitution making following the fall of the Berlin Wall. Research about de facto and de jure constitutional law now tends to embrace institutional details like judicial review powers and procedures of direct democracy. The field of comparative constitutional law is controversial both in methods and substance. It still lacks a consistent framework of comparative tools and is criticized as illegitimate by scholars who insist on the interpretive autonomy within each constitutional system. Research in the area of fundamental rights has to deal with long-lasting controversies like the constitutionality of the death penalty. Bioethical regulation is another new field where constitutional positions tend to diverge rather than converge. Embryonic stem cell research, therapeutic cloning, pre-implantation genetic diagnosis, and surrogate motherhood are examples from biotechnology and reproductive medicine where constitutional scholars disagree about what, if anything, constitutional law can contribute to provide a basis or limit for regulation. With the worldwide rise of constitutional courts and judicial review, the standards for the interpretation of fundamental rights become more important. Legal scholarship has worked out the differences between the rule-oriented approach associated with Anglo-American legal systems versus the principle-based approach common to continental Europe

The Basic Law (Grundgesetz) 2012: The Constitution of the Federal Republic of Germany – Introduction and Translation

This introduction and translation is part of the research project International Constitutional Law. All amendments up to and including the 59th Amendment of 11th July 2012 have been translated and included into a consolidated edition. There have been no more amendments until today (8th October 2013)