340 Recht
Refine
Year of publication
Document Type
- Part of Periodical (662)
- Article (581)
- Working Paper (466)
- Review (296)
- Book (165)
- Conference Proceeding (125)
- Part of a Book (66)
- Contribution to a Periodical (58)
- Doctoral Thesis (44)
- Report (25)
Language
- German (1861)
- English (593)
- French (12)
- Italian (11)
- Multiple languages (9)
- Spanish (9)
- Portuguese (5)
- Latin (4)
- dut (1)
- mis (1)
Is part of the Bibliography
- no (2508) (remove)
Keywords
- Deutschland (83)
- Aktienrecht (17)
- Urheberrecht (17)
- Kapitalmarktrecht (16)
- Recht (16)
- global justice (16)
- Coronavirus (14)
- Corporate Governance (13)
- Börsenrecht (12)
- Democracy (12)
Institute
- Rechtswissenschaft (1343)
- Gesellschaftswissenschaften (145)
- Präsidium (126)
- Exzellenzcluster Die Herausbildung normativer Ordnungen (109)
- Wirtschaftswissenschaften (80)
- Sustainable Architecture for Finance in Europe (SAFE) (70)
- House of Finance (HoF) (57)
- Center for Financial Studies (CFS) (53)
- Institute for Law and Finance (ILF) (51)
- Foundation of Law and Finance (46)
Freie, öffentlichen Meinungsbildung ist das Herzstück der Demokratie. Doch digitale Kommunikation und datengetriebene Kuratierung von Inhalten verändern das der Demokratie eigene Konzept von Öffentlichkeit und erfordern neue gesetzliche Rahmenbedingungen. In diesem Sammelband führen Expert:innen der Rechts- und Politikwissenschaften, der Soziologie und Datenwissenschaft in die Materie ein und weisen Wege zur Stärkung der Demokratie in der Digitalisierung.
'Skelettfund' im Keller
(2021)
Bei der Identifizierung einer unbekannten, stark verwesten Leiche oder eines Skelettes ohne Hinweise auf die Identität durch die Auffindesituation spielt die Erstellung des sog. biologischen Profils eine entscheidende Rolle. Vorgestellt wird ein Leichenfund in einem mehr oder weniger frei zugänglichen Kellerabteil eines Mehrfamilienhauses. Der Leichnam war weitgehend skelettiert, das Skelett jedoch durch mumifizierte Weichteilreste noch nahezu vollständig zusammengehalten. Bei den Hinweisen auf die Identität ergaben sich insbesondere in der Altersschätzung scheinbare Widersprüche, die jedoch zufällig eine relativ genau zutreffende Schätzung lieferten. Die Überreste konnten mittels forensischer DNA-Analyse einer seit 4 Jahren vermissten 49-Jährigen zugeordnet werden. Als Todesursache wurde ein Kältetod diskutiert.
Der Fall wies eine außergewöhnliche Auffindesituation auf, die an Bilder von „Skelettfunden“ in Kriminalverfilmungen erinnerte. Derartige Befunde dürften jedoch in der Realität wohl nur sehr selten vorkommen. Darüber hinaus werden die Wichtigkeit und die Probleme der forensisch-osteologischen Untersuchungen bei der Identifizierung eines stark verwesten, unbekannten Leichnams demonstriert.
Background: Decedents who are repatriated to Germany from abroad are not systematically registered nationwide. In Hamburg, in addition to an epidemic hygienic examination, registration and examination of the content of the documents accompanying the corpses of German citizens has been carried out since 2007. In this way, unclear and non-natural deaths in particular are to be followed up as necessary.
Material and methods: Protocols of external and internal autopsies of German nationals who died abroad and were repatriated to Hamburg via the port or airport between 2007 and 2018 were retrospectively evaluated with respect to numbers, completeness of the autopsy abroad and correctness of manner and cause of death.
Results: Between 2007 and 2018 a total of 703 corpses were repatriated via the port or airport of Hamburg and examined by the Port Medical Service for epidemic hygiene and for anything conspicuous in the documents accompanying the corpse. Of them, 307 corpses were examined at the Institute of Legal Medicine at the University Medical Center Hamburg-Eppendorf. In total, 82.4% of the examined cases had an incorrect, unspecific or incomplete foreign death certificate. Of the deceased, 238 were subjected to a second external autopsy by a forensic pathologist and 69 deceased were autopsied again or for the first time in Hamburg. It was found that 84% of the autopsies performed abroad were not performed according to German and European standards. The most common discrepancy was incomplete preparation of the organs. In almost one quarter of the autopsies performed in Hamburg a different cause of death than abroad was determined at autopsy.
Conclusion: Since the quality of autopsies performed abroad sometimes does not meet the standards in Germany and Europe and many papers accompanying corpses are incomplete or incorrectly filled out, a systematic review procedure in the home country is recommended. Through the system established in Hamburg in 2007, at least a re-evaluation of the cases takes place.
Cryptocurrencies provide a unique opportunity to identify how derivatives impact spot markets. They are fully fungible, trade across multiple spot exchanges at different prices, and futures contracts were selectively introduced on bitcoin (BTC) exchange rates against the USD in December 2017. Following the futures introduction, we find a significantly greater increase in cross-exchange price synchronicity for BTC--USD relative to other exchange rate pairs, as demonstrated by an increase in price correlations and a reduction in arbitrage opportunities and volatility. We also find support for an increase in price efficiency, market quality, and liquidity. The evidence suggests that futures contracts allowed investors to circumvent trading frictions associated with short sale constraints, arbitrage risk associated with block confirmation time, and market segmentation. Overall, our analysis supports the view that the introduction of BTC--USD futures was beneficial to the bitcoin spot market by making the underlying prices more informative.
he ECB is independent, but it is also accountable to the European parliament (EP). Yet, how the EP has held the ECB accountable has largely been overlooked. This paper starts addressing this gap by providing descriptive statistics of three accountability modalities. The paper highlights three findings. First, topics of accountability have changed. Climate-related accountability has increased quickly and dramatically since 2017. Second, if the relationship between price stability and climate change remains an object of conflict among MEPs, a majority within the EP has emerged to put pressure for the ECB to take a more active stance against climate change, precisely on behalf of its price stability mandate. Third, MEPs engage with the climate topic in very specific ways. There is a gender divide between the climate and the price stability topics. Women engage more actively with climate-related topics. While the Greens heavily dominate the climate topic, parties from the Right dominate the topic of Price stability. Finally, MEPs adopt a more united strategy and a particularly low confrontational tone in their climate-related interventions.
Global consensus is growing on the contribution that corporations and finance must make towards the net-zero transition in line with the Paris Agreement goals. However, most efforts in legislative instruments as well as shareholder or stakeholder initiatives have ultimately focused on public companies.
This article argues that such a focus falls short of providing a comprehensive approach to the problem of climate change. In doing so, it examines the contribution of private companies to climate change, the relevance of climate risks for them, as well as the phenomenon of brown-spinning (ie, the practice of public companies selling their highly polluting assets to private companies). We show that one cannot afford to ignore private companies in the net-zero transition and climate change adaptation. Yet, private companies lack several disciplining mechanisms that are available to public companies, such as institutional investor engagement, certain corporate governance arrangements, and transparency through regular disclosure obligations. At this stage, only some generic regulatory instruments such as carbon pricing and environmental regulation apply to them.
The article closes with a discussion of the main policy implications. Primarily, we discuss and evaluate the recent push to extend climate-related disclosure requirements to private companies. These disclosures would not only help investors by addressing information asymmetry, but also serve a wide group of stakeholders and thus aim at promoting a transition to a greener economy.
We provide the first comprehensive analysis of option information for pricing the cross-section of stock returns by jointly examining extensive sets of firm and option characteristics. Using portfolio sorts and high-dimensional methods, we show that certain option measures have significant predictive power, even after controlling for firm characteristics, earning a Fama-French three-factor alpha in excess of 20% per annum. Our analysis further reveals that the strongest option characteristics are associated with information about asset mispricing and future tail return realizations. Our findings are consistent with models of informed trading and limits to arbitrage.
The transition to a sustainable economy currently involves a fundamental transformation of our capital markets. Lawmakers, in an attempt to overcome this challenge, frequently seek to prescribe and regulate how firms may address environmental, social, and governance (ESG) concerns by formulating conduct standards. Deviating from this conceptual starting point, the present paper makes the case for another path towards achieving greater sustainability in capital markets, namely through the empowerment of investors.
This trust in the market itself is grounded in various recent developments both on the supply side and the demand side of financial markets, and also in the increasing tendency of institutional investors to engage in common ownership. The need to build coalitions among different types of asset managers or institutional investors, and to convince fellow investors of a given initiative, can then act as an in-built filter helping to overcome the pursuit of idiosyncratic motives and supporting only those campaigns that are seconded by a majority of investors. In particular, institutionalized investor platforms have emerged over recent years as a force for investor empowerment, serving to coordinate investor campaigns and to share the costs of engagement.
ESG engagement has the potential to become a very powerful driver towards a more sustainability-oriented future. Indeed, I show that investor-led sustainability has many advantages compared to a more prescriptive, regulatory approach where legislatures are in the driver’s seat. For example, a focus on investor-led priorities would follow a more flexible and dynamic pattern rather than complying with inflexible pre-defined criteria. Moreover, investor-promoted assessments are not likely to impair welfare creation in the same way as ill-defined legal standards; they will also not trigger regulatory arbitrage and would avoid deadlock situations in corporate decision-making. Any regulatory activity should then be limited to a facilitative and supportive role.
This paper studies the interactions between corporate law and VC exits by acquisitions, an increasingly common source of VC-related litigation. We find that transactions by VC funds under liquidity pressure are characterized by (i) a substantially lower sale price; (ii) a greater probability of industry outsiders as acquirers; (iii) a positive abnormal return for acquirers. These features indicate the existence of fire sales, which satisfy VCs' liquidation preferences but hurt common shareholders, leaving board members with conflicting fiduciary duties and litigation risks. Exploiting an important court ruling that establishes the board’s fiduciary duties to common shareholders as a priority, we find that after the ruling maturing VCs become less likely to exit by fire sales and they distribute cash to their investors less timely. However, VCs experience more difficult fundraising ex-ante, highlighting the potential cost of a common-favoring regime. Overall the evidence has important implications for optimal fiduciary duty design in VC-backed start-ups.
We estimate the cost of cultural biases in high-stake economic decisions by comparing agents’ peer-to-peer lending choices with those the same agents make under the assistance of an automated robo-advisor. We first confirm substantial in-group vs. out-group and stereotypical discrimination, which are stronger for lenders who reside where historical cultural biases are higher. We then exploit our unique setting to document that cultural biases are costly: agents face 8% higher default rates on favored-group borrowers when unassisted. The returns they earn on favored groups increase by 7.3 percentage points when assisted. The high riskiness of the marginal borrowers from favorite groups largely explains the bad performance of culturally-biased choices. Because varying economic incentives do not reduce agents’ biases, inaccurate statistical discrimination—unconscious biased beliefs about borrowers’ quality—can explain our results better than taste-based discrimination.
The European Central Bank (ECB) recently proclaimed a more active role for itself in the fight against climate change. Did the European Parliament (EP) play a part in this regard, and if so what was it? To answer this question, this paper builds on a multi-method text analysis of original datasets compiling communications between the ECB and the EP across three accountability forums between 2014 and 2021. The paper shows that there has been discursive convergence between central bankers and parliamentarians concerning the role of the ECB in combatting climate change. It argues that this convergence has resulted from a pragmatic (yet precarious) adoption of a common repertoire1 between ‘green’ central bankers and parliamentarians who have favored a more active role for the ECB in the fight against climate change. The adoption of a common repertoire is pragmatic, in that it results from the strategic use of specific discursive elements that are ambitious enough to address their respective opponents and trigger political change, yet vague enough to allow both sets of actors to converge on them momentarily. It is also precarious in the sense that it involves discarding fundamental political tensions, which is hardly tenable in the long term. The paper shows that both organizational and politicization dynamics have been at work in the emergence of this pragmatic yet precarious bedfellowship between ‘green’ central bankers and parliamentarians.
Trust between parties should drive contract design: if parties were suspicious about each others’ reaction to unplanned events, they might agree to pay higher costs of negotiation ex ante to complete contracts. Using a unique sample of U.S. consulting contracts and a negative shock to trust between shareholders/managers (principals) and consultants (agents) staggered across space and over time, we find that lower trust increases contract completeness. Not only the complexity but also the verifiable states of the world covered by contracts increase after trust drops. The results hold for several novel text-analysis-based measures of contract completeness and do not arise in falsification tests. At the clause level, we find that non-compete agreements, confidentiality, indemnification, and termination rules are the most likely clauses added to contracts after a negative shock to trust and these additions are not driven by new boilerplate contract templates. These clauses are those whose presence should be sensitive to the mutual trust between principals and agents.
Nicht nur die Seeversicherung. Philipp Hellweges Projekt zur Geschichte des Versicherungsrechts
(2020)
Die Stichtagserhebung der Kriminologischen Zentralstelle (KrimZ) fragt jedes Jahr zum Stichtag am 31. März die Gegebenheiten in allen sozialtherapeutischen Einrichtungen deutschlandweit ab. Inzwischen liegen Daten aus 23 Erhebungsjahren vor und geben Aufschluss über die Entwicklungen der Versorgungslage (Anzahl der Einrichtungen bzw. Haftplätze), bezüglich der demografischen Daten der Gefangenen (Alter, Staatsbürgerschaft, Dauer der Haftstrafe, schwerste Straftat, Vorstrafen), über institutionelle Vorgänge (Aufnahmen, Abgänge und Nachbetreuung) sowie hinsichtlich von Daten zum Personal (Anzahl der Personalstellen und Frauenanteil). Die vorliegenden Auswertungen verdeutlichen die Entwicklungstrends in der Sozialtherapie zwischen 1997 und 2019 und legen nahe, dass nach einem starken Ausbau der sozialtherapeutischen Einrichtungen ab 1969 nun mit 71 Einrichtungen eine Sättigungsgrenze erreicht zu sein scheint. Die inhaftierten Personen werden zunehmend älter, sodass 2019 die über 50-Jährigen die größte Altersgruppe stellen. Schon seit 2003 liegt der Anteil derjenigen, die aufgrund eines Sexualdelikts inhaftiert sind, bei ca. 50 %, was gegenüber anderen Deliktgruppen eine deutliche Mehrheit darstellt. Ein Großteil der Gefangenen hat keine Haftlockerungen, wobei hier eine zunehmend restriktivere Praxis zu erkennen ist. Die Personalausstattung hat sich über die letzten 23 Jahre insofern verändert, als dass mehr Fachdienste und tendenziell weniger Stellen im allgemeinen Vollzugsdienst (AVD) eingerichtet wurden.
This paper analyses disclosure duties in insurance contract law in Germany on the basis of questions developed in preparation of the World Congress of the International Insurance Law Association (AIDA) 2018. As risk factors are within the policyholder’s sphere of knowledge, the insurer naturally depends on gaining such knowledge from its policyholder in order to calculate and evaluate premium and risk. Legal approaches as to how the insurer may obtain relevant information and the legal consequences differ in national insurance contract laws around the globe. Taking part in this legal comparison, the paper describes the key elements of such a mechanism from a German perspective and comprises both duties of the policyholder and duties of the insurer.
As for the policyholder, these issues are differences between a duty to (spontaneously) disclose and a duty not to misrepresent as a reaction to questions of the insurer, the prerequisites and remedies of such duty, the subjective standard of the disclosure duty and a duty to notify material changes during the contract term. On the other hand, the paper also addresses an insurer’s duty to investigate, a duty to ascertain the policyholder’s understanding of the policy and a duty to inform during the contract term or after the occurrence of an insured event. In doing so, the paper offers a comprehensive and critical overview on the transfer of knowledge in the insurance (pre-)contractual relationship.
This paper considers ways in which rulers can respond to, generate, or exploit fear of COVID-19 infection for various ends, and in particular distinguishes between ‘fear-invoking’ and ‘fear-minimising’ strategies. It examines historical precedent for executive overreach in crises and then moves on to look in more detail at some specific areas where fear is being mobilised or generated: in ways that lead to the suspension of civil liberties; that foster discrimination against minorities; and that boost the personality cult of leaders and limit criticism or competition. Finally, in the Appendix, we present empirical work, based on the results of an original survey in Brazil, that provides support for the conjectures in the previous sections. While it is too early to tell what the longer-term outcomes of the changes we note will be, our purpose here is simply to identify some warning signs that threaten the key institutions and values of democracy.
The COVID-19 pandemic has both highlighted and exacerbated global health inequities, leading for calls for responses to COVID to promote social justice and ensure that no one is left behind. One key lesson to be learnt from the pandemic is the critical importance of decolonizing global health and global health research so that African countries are better placed to address pandemic challenges in contextually relevant ways. This paper argues that to be successful, programmes of decolonization in complex global health landscapes require a complex three-dimensional approach. Drawing on the broader discourse of political decolonization that has been going on in the African context for over a century, we present a model for unpacking the complex task of decolonization. Our approach suggests a three-dimensional approach which encompasses hegemomic; epistemic; and commitmental elements.
We live in tragic times. Millions are sheltering in place to avoid exacerbating the Coronavirus (COVID-19) pandemic. How should we respond to such tragedies? This paper argues that the human right to health can help us do so because it inspires human rights advocates, claimants, and those with responsibility for fulfilling the right to try hard to satisfy its claims. That is, the right should, and often does, give rise to what I call the virtue of creative resolve. This resolve embodies a fundamental commitment to finding creative solutions to what appear to be tragic dilemmas. Contra critics, we should not reject the right even if it cannot tell us how to ration scarce health resources. Rather, the right gives us a response to apparent tragedy in motivating us to search for ways of fulfilling everyone’s basic health needs.
The COVID-19 pandemic is affecting countries across the globe. Only a globally coordinated response, however, will enable the containment of the virus. Responding to a request from policy makers for ethics input for a global resource pledging event as a starting point, this paper outlines normative and procedural principles to inform a coordinated global coronavirus response. Highlighting global connections and specific vulnerabilities from the pandemic, and proposing standards for reasonable and accountable decision-making, the ambition of the paper is two-fold: to raise awareness for the justice dimensions in the global response, and to argue for moving health from the periphery to the centre of philosophical debates about social and global justice.
The first case of COVID-19 infection in Africa was recorded in Egypt on 14 February 2020. Following this, several projections of the possible devastating effect that the virus can have on the population of African countries were made in the Western media. This paper presents evidence for Africa’s successful responses to the COVID-19 pandemic and under-reporting or misrepresentation of these successes in Western media. It proceeds to argue for accounting for these successes in terms of Africa’s communitarian way of life and conceptions of self, duty, and rights; and that a particular orientation in theorizing on global justice can highlight the injustices inherent in the misrepresentation of these successes and contribute shared perspectives to formulating a framework of values and concepts that would facilitate the implementation of global policy goals for justice. The paper is thus grounded in a rejection of the insular tenets of theorizing prevalent in the global justice debate and to persistent inclinations in Western scholarship to the thinking that theorizing in the African context that draws inspiration from the cultural past has little to contribute to the quest for justice globally. On the contrary, it argues that reflexive critique of cultural history is a necessary source of normative ideals that can foster tolerant coexistence and a cooperative endeavour toward shared conceptions of justice in the contemporary world.
Introduction
(2022)
The health and genetic data of deceased people are a particularly important asset in the field of biomedical research. However, in practice, using them is compli- cated, as the legal framework that should regulate their use has not been fully developed yet. The General Data Protection Regulation (GDPR) is not applicable to such data and the Member States have not been able to agree on an alternative regulation. Recently, normative models have been proposed in an attempt to face this issue. The most well- known of these is posthumous medical data donation (PMDD). This proposal supports an opt-in donation system of health data for research purposes. In this article, we argue that PMDD is not a useful model for addressing the issue at hand, as it does not consider that some of these data (the genetic data) may be the personal data of the living relatives of the deceased. Furthermore, we find the reasons supporting an opt-in model less convincing than those that vouch for alternative systems. Indeed, we propose a normative framework that is based on the opt-out system for non-personal data combined with the application of the GDPR to the relatives’ personal data.
Large companies are increasingly on trial. Over the last decade, many of the world’s biggest firms have been embroiled in legal disputes over corruption charges, financial fraud, environmental damage, taxation issues or sanction violations, ending in convictions or settlements of record-breaking fines, well above the billion-dollar mark. For critics of globalization, this turn towards corporate accountability is a welcome sea-change showing that multinational companies are no longer above the law. For legal experts, the trend is noteworthy because of the extraterritorial dimensions of law enforcement, as companies are increasingly held accountable for activities independent of their nationality or the place of the activities. Indeed, the global trend required understanding the evolution of corporate criminal law enforcement in the United States in particular, where authorities have skillfully expanded its effective jurisdiction beyond its territory. This paper traces the evolution of corporate prosecutions in the United States. Analyzing federal prosecution data, it then shows that foreign firms are more likely to pay a fine, which is on average 6,6 times larger.
China’s law to control international non-governmental organisations (INGOs) has sent shockwaves through international non-governmental organisations (NGOs), civil society and expert communities as the epitome of a worldwide trend of closing civic spaces. Since the Overseas NGO Management Law was enacted in January 2017, its implementation has seen mixed effects and diverging patterns of adaptation among Chinese party-state actors at the central and local levels and among domestic NGOs and INGOs. To capture the formal and informal dynamics underlying their mutual interactions in the longer term, this article employs a theory of institutional change inspired by Elinor Ostrom’s distinction between rules-in-form versus rules-in-use and identifies four scenarios for international civil society in China – “no change,” “restraining,” “recalibrating” and “reorienting.” Based on interviews, participant observation and Chinese policy documents and secondary literature, the respective driving forces, plausibility, likelihood and longer-term implications of each scenario are assessed. It is found that INGOs’ activities are increasingly affected by the international ambitions of the Chinese party-state, which enmeshes both domestic NGOs and INGOs as agents in its diplomatic efforts to redefine civil society participation on a global scale.
Global consensus is growing on the contribution that corporations and finance must make towards the net-zero transition in line with the Paris Agreement goals. However, most efforts in legislative instruments as well as shareholder or stakeholder initiatives have ultimately focused on public companies: for example, most disclosure obligations result from the given company’s status of being listed on a stock exchange.
This article argues that such a focus falls short of providing a comprehensive approach to the problem of climate change. In doing so, it examines the contribution of private companies to climate change, the relevance of climate risks for them, as well as the phenomenon of brown-spinning. We show that one cannot afford to ignore private companies in the net-zero transition and climate change adaptation. Yet, private companies lack several disciplining mechanisms available to public companies such as institutional investor engagement, certain corporate governance arrangements, and transparency through regular disclosure obligations. At this stage, only some generic regulatory instruments such as carbon pricing and environmental regulation apply to them. The article closes with a discussion of the main policy implications. Primarily, we propose extending sustainability disclosure requirements to private companies.
Sustainability disclosures aim at promoting a transition to a greener economy, rather than (only) protecting investors by addressing information asymmetry. Therefore, these disclosures should encompass private companies that are of relevance for the net-zero transition. Such disclosures can be a powerful tool in shedding light on the polluting private companies that have so far been in the dark as well as serving as a disciplining mechanism.
In ‘Justice and Natural Resources,’ Chris Armstrong offers a rich and sophisticated egalitarian theory of resource justice, according to which the benefits and burdens flowing from natural (and non-natural) resources are ideally distributed with a view to equalize people’s access to wellbeing, unless there are compelling reasons that justify departures from that egalitarian default. Armstrong discusses two such reasons: special claims from ‘improvement’ and ‘attachment.’ In this paper, I critically assess the account he gives of these potential constraints on global equality. I argue that his recognition of them has implications that Armstrong does not anticipate, and which challenge some important theses in his book. First, special claims from improvement will justify larger departures from the egalitarian default than Armstrong believes. Second, a consistent application of Armstrong’s life planfoundation for special claims from attachment implies that nation-states may move closer to justify ‘permanent sovereignty’ over the resources within their territories than what his analysis suggests.
In this paper, we discuss Armstrong’s account of attachment-based claims to natural resources, the kind of rights that follow from attachment-based claims, and the limits we should impose on such claims. We hope to clarify how and why attachment matters in the discourse on resource rights by presenting three challenges to Armstrong’s theory. First, we question the normative basis for certain attachment claims, by trying to distinguish more clearly between different kinds of attachment and other kinds of claims. Second, we highlight the need to supplement Armstrong’s account with a theory of how to weigh different attachment claims so as to establish the normative standing that different kinds of attachment claims should have. Third, we propose that sustainability must be a necessary requirement for making attachment claims to natural resources legitimate. Based on these three challenges and the solutions we propose, we argue that attachment claims are on the one hand narrower than Armstrong suggests, while on the other hand they can justify more far-reaching rights to control than Armstrong initially considers, because of the particular weight that certain attachment claims have.
The paper analyses the interrelationship between Armstrong’s egalitarian theory and his treatment of the ‘attachment theory’ of resources, which is the dominant rival theory of resources that his theory is pitched against. On Armstrong’s theory, egalitarianism operates as a default position, from which special claims would need to be justified, but he also claims to be able to incorporate ‘attachment’ into his theory. The general question explored in the paper is the extent to which ‘attachment’ claims can be ‘married’ to an egalitarian theory. The more specific argument is that a properly constrained attachment theory is more plausible than Armstrong’s egalitarian theory. Armstrong’s paper also criticizes attachment and improvement accounts as justifying permanent sovereignty over resources. This paper argues that neither of those arguments aim to justify the international doctrine of permanent sovereignty.
This paper argues that land and resource rights are often essential in overcoming colonial inequality and devaluation of indigenous populations and cultures. It thereby criticizes global welfare egalitarians that promote the abolition of national sovereignty over resources in the name of increased equality. The paper discusses two ways in which land and resource rights contribute to decolonization and the eradication of the associated inequality. First, it proposes that land and resource rights have acquired a status-conferring function for (formerly) colonized peoples so that possession of full personhood and relational equality is partially expressed through the possession of land and resource rights. Second, it suggests that successful internal decolonization depends on access to and control over land and resources, especially for indigenous peoples.
In Justice and Natural Resources: An Egalitarian Theory (2017), Chris Armstrong proposes a version of global egalitarianism that – contra the default renderings of this approach – takes individual attachment to specific resources into account. By doing this, his theory has the potential for greening global egalitarianism both in terms of procedure and scope. In terms of procedure, its broad account of attachment and its focus on individuals rather than groups connects with participatory governance and management and, ultimately, participatory democracy – an essential ingredient in the toolkit of green politics and policy-making. In terms of scope, because it does not commit itself to any particular moral framework, Armstrong’s theory leaves the door open for non-human animals to become subjects of justice, thus extending the realm of the latter beyond its traditionally anthropocentric borders. I conclude that these greenings are promising, but not trouble-free.
A reply to my critics
(2021)
It is a real pleasure to reply to so many thoughtful and probing responses to my book. In what follows, I will focus on six key themes that emerge across the various pieces. Some of them call into question core commitments of my theory, and in those cases I will try to show what might be said in its defence. Quite a number of the critics, however, present what we might call expansionist arguments: though they endorse some of the arguments I make, that is – or pick up some of its key concepts – they seek to push them in new and interesting directions. I will suggest that many of those arguments look likely to be successful, though I will also express caution about one or two of them. I doubt, however, that I will be the final judge of their success. Early on in the book I express the hope that it might provide a set of conceptual tools capable of advancing discussions about resource justice more broadly, even for scholars who reject my own idiosyncratic approach. Having made that gambit, I cannot now claim to have a monopoly on the use of the tools in question. Witnessing the use that others have already made of them has been a refreshing and rewarding experience.
This paper uses a novel account of non-ideal political action that can justify radical responses to severe climate injustice, including and especially deliberate attempts to engineer the climate system in order reflect sunlight into space and cooling the planet. In particular, it discusses the question of what those suffering from climate injustice may do in order to secure their fundamental rights and interests in the face of severe climate change impacts. Using the example of risky geoengineering strategies such as sulfate aerosol injections, I argue that peoples that are innocently subject to severely negative climate change impacts may have a special permission to engage in large-scale yet risky climate interventions to prevent them. Furthermore, this can be true even if those interventions wrongly harm innocent people.
Chris Armstrong argues that attempts at justifying special claims over natural resources generally take one of two forms: arguments from improvement and arguments from attachment. We argue that Armstrong fails to establish that the distinction between natural resources and improved resources has no normative significance. He succeeds only in showing that ‘improvers’ (whoever they may be) are not necessarily entitled to the full exchange value of the improvement. It can still be argued that the value of natural and improved resources should be distributed on different grounds, but that the value of improvements should be conceived differently.
This paper argues first that Armstrong is led to see natural resources primarily as objects of consumption. But many natural resources are better seen as objects of enjoyment, where one person’s access to a resource need not prevent others from enjoying equal access, or as objects of production, where granting control of a resource to one person may produce collateral benefits to others. Second, Armstrong’s approach to resource distribution, which requires that everyone must have equal access to welfare, conceals an ambiguity as to whether this means equal opportunity for welfare, or simply equal welfare – the underlying issue being how far individuals (or countries) should be held responsible for the use they make of the resources they are allocated. Third, when Armstrong attacks arguments that appeal to ‘improvement’ as a basis for claims to natural resources, he treats them as making comparative desert claims: if country A makes a claim to the improved resources on its territory, it must show that their comparative value accurately reflects the productive deserts of its members compared to those of countries B. But in fact, A needs only to make the much weaker claim that its members have done more than others to enhance the value of its resources. Overall, Armstrong’s welfarist approach fails to appreciate the dynamic advantages of allocating resources to those best able to use them productively.
Introduction
(2021)
Der Beitrag nimmt kritisch zum gegenwärtig anhängigen EU-Gesetz über digitale Dienste (Digital Services Act, DSA) Stellung. Die Kernthese lautet: Big Tech muss reguliert werden, aber nicht wie im DSA vorgesehen. Zur Untermauerung dieser Position werden fünf grundlegend problematische Aspekte des DSA benannt. Es wird gezeigt, dass die derzeit verhandelten Fassungen des DSA (1) die Vertragsfreiheit nicht kommunikationsmächtiger Vermittlungsdienste missachten, (2) automatisiertes Overblocking begünstigen, (3) auch legale, aber in unspezifischer Weise „schädliche“ Äußerungen ins Visier nehmen, (4) einen vagen und für die Kommunikationsregulierung generell unpassenden Risikopräventionsansatz verfolgen und (5) eine Kommunikationsüberwachungsbürokratie errichten, die ihrerseits keinen zureichenden öffentlich-demokratischen Kontrollen unterliegt. Als Reaktion auf diese Befunde wird vorgeschlagen, (1) nur sehr großen Online-Plattformen inhaltliche Vorgaben im Hinblick auf ihre AGB zu machen, (2) die Verpflichtung/Berechtigung zum Einsatz automatischer Moderationssysteme auf offensichtlich rechtswidrige Inhalte zu beschränken, (3) im DSA auch keine indirekten Pflichten zur Unterdrückung legaler, aber „schädlicher“ Inhalte vorzusehen, (4) das systemische Risiko des Art. 26 Abs. 1 Buchst. c DSA ersatzlos zu streichen und (5) die DSA-Bürokratie staatsfern auszugestalten und einer parlamentarischen Kontrolle zu unterwerfen.
Flüchtlinge, Schuldenkrise, Diskriminierung. Drei hochaktuelle, weltumspannende Themen, die eines verbindet: die Frage nach Gerechtigkeit. An der Goethe-Universität denkt die Forschergruppe »Justitia Amplificata: Erweiterte Gerechtigkeit – konkret und global« über Gerechtigkeitstheorien nach. Die Gruppe untersucht Theorien der Gerechtigkeit und ihre praktischen Implikationen. Die Deutsche Forschungsgemeinschaft fördert die Arbeit der interdisziplinärangelegten Kolleg- Forschergruppe. Diese vernetzt Wissenschaftlerinnen und Wissenschaftler unterschiedlicher Karrierestufen.
Starting from the generally acknowledged fact that exact translation is not possible, this article presents the difficulties of translation between legal systems in general, which appear on different levels and are of such extent, that it has often been spoken about the untranslatability of law. The idea of untranslatability is a controversed one in the specialized literature, as some authors show that it is no case of absolute untranslatability, but one of relative untranslatability, since the translator – who has to bridge the gap between the source and the target legal system – must find a surrogate solution for the missing legal term.
With the ratification of the European Charter for Regional or Minority Languages (ECRM) the Romanian state guarantees all members of national minorities the right to preserve, develop and express their ethnic, cultural, linguistic and religious identity.
The charter offers a catalogue of more than 100 activities; at least 35 should be chosen and put into practice by the member states, as is stated in the Declaration of Commitment.
The article analyses, using the example of “education”, which activities Romania has chosen in its first report on the implementation of ECRM (2010) and how the international commission of experts evaluate the application of the Charter in Romania in their inspection report (2012).
The Romanian National Archives in Sibiu keep a wide range of documents concerning the history of the Transylvanian Saxons and the every day life of the city of Sibiu. Although of major interest for historians, linguists and translators, these documents have not been fully studied so far. They represent valuable evidence of the evolution of the former German language spoken on the Transylvanian territory and, if translated into Romanian, could offer to the Romanian reader a new perspective on the Transylvanian Saxons’ history. This paper analyses, in the historic context of the time, the depositions of witnesses in a civil trial during the Austrian billeting in Sibiu in the 17th century and discusses the contents by observing the main structural characteristics of the text.
The analyzed and translated text represents a judicial protocol of a witch trial from 1697. After a brief description of the general phenomenon of the witch hunt and it’s characteristics in 17th century Transylvania the text is discussed from a point of view of its translation. The most problematic aspects are found in the depositions of the witnesses, which abound in linguistic peculiarities, ranging from archaic structures to dialect. The translator faces a dilemma when having to decide whether to translate the archaic structures into archaic ones, thus preserving the stylistic personality of the text, or into modern Romanian, which would mean creating an “open translation”. In any case the translation should not neglect the informative and oral character of the source text.
The importance of Transylvanian records of court proceedings from the end of the 17th century relies, in terms of content, on preserving the day by day life of ordinary people in Transylvania such as craftsmen, tradesmen, and peasants. Regarding linguistics, they are challenging due to the specific tension between feigned orality and literacy, when historical “spoken” language is documented. The research question pertains to describe, from a qualitative point of view, the complex sentences structure. Thereby, we look upon the different ways to construct complex sentences and their specific use according to the communicative functions of text parts: Which is the proportion between hypotaxis and parataxis in combining clauses? How deep is the hierarchy of subordinate clauses? Which subordinate clause functions are most used? Which composition types are relevant for complex sentence structure?
The present paper is a contribution to the ongoing discussion on the various relationships between language and law. It is impossible to deal with all these relationships in the present study. Therefore the relationship between language and law will be dealt with in this paper as far as it points out the relationships between linguistics and jurisprudence. Considering the diverse relationships between the fields of linguistics and jurisprudence, the interdisciplinary collaboration between these two disciplines could be improved by establishing a branch of study dealing with legal linguistics.
Der Beitrag bietet einen Überblick über den entstehungsgeschichtlichen Hintergrund sowie den Inhalt des ursprünglichen Netzwerkdurchsetzungsgesetzes (NetzDG) 2017, seine Wirkungen in der Praxis und die Änderungen durch die NetzDG-Reform 2021. Es wird gezeigt, dass aus einem Regelwerk mit engem Fokus auf die Durchsetzung des Strafrechts in OnlineNetzwerken ein Plattformregulierungsgesetz wurde, das sowohl Löschgebote (Strafrecht) als auch Löschverbote (Meinungsfreiheit) prozeduralisiert. Während das NetzDG 2017 keinen nennenswerten Niederschlag in gerichtlichen oder behördlichen Entscheidungen fand und inzwischen auch kaum noch eine Rolle in der Löschpraxis der Netzwerke spielt, dürfte es dazu beigetragen haben, dass die Netzwerkbetreiber ihre privaten Kommunikationsregeln verschärft haben. Hintergrund für diese „Flucht in die AGB“ ist, dass die großen Netzwerkbetreiber und der Gesetzgeber dasselbe Nahziel verfolgen: Einer Verrohung der Debattenkultur soll aus ökonomischen bzw. gesellschaftspolitischen Gründen entgegengewirkt werden. Der Beitrag schließt mit einem Ausblick auf den Digital Services Act (DSA), mit dem der Compliance-Ansatz des NetzDG europäisiert würde.
Der Beitrag bietet eine Übersicht der unionalen und deutschen Rechtsbegriffe zur Bezeichnung von Diensten im Bereich der Informations- und Kommunikationstechnik (IKT). Neben Rechtsquellen der ersten Regulierungsgeneration (insbes. E-Commerce- und InfoSoc-Richtlinie) werden 26 Gesetze bzw. Gesetzesvorschläge aus den letzten fünf Jahren in die Bestandsaufnahme einbezogen. Die einzelnen Dienstebegriffe werden erläutert und nach Maßgabe ihrer technisch-sozialen Funktion klassifiziert. Die vergleichende Analyse arbeitet Unterschiede und Überschneidungen sowie allgemeine dogmatische Grundsätze heraus, etwa zur Beurteilung multifunktionaler Dienste. Besonderes Augenmerk gilt Diensten wie sozialen Netzwerken und Messengern, deren juristische Einordnung ungeklärt ist. Der Beitrag schließt mit begrifflichen Reformvorschlägen für das künftige Digitalrecht.
This paper explores the context and reasons for the extensive translation of legal texts from German into Romanian in Bukovina during the Habsburg period (1775–1918) and immediately following the unification with the Romanian Kingdom. The Austrian civil code from 1811 was translated in the three important periods of translation, corresponding to the major administrative changes in the province. The paper analyses the different translations and their impact on the Romanian legislation, legal terminology and juridical style.
The Transylvanian-Saxon Dictionary (SSWB) documents the general thesaurus of the Transylvanian Saxons by means of meaningful idiomatic samples. In addition there are certified documents of Transylvanian sources of the German language from the mid 13th to mid 10th century, which are of relevance for the idiomatic influence upon the literary German written language in Transylvania or the history of the German language. From this point of view some lexemes are absorbed into the dictionary, which refer to established legal agreements and mandatory services pertaining to a specific time period. The case studies in the following article are documented sources, extracted from the SSWB and the Transylvanian vernacular literature.
Prospective welfare analysis - extending willingness-to-pay assessment to embrace sustainability
(2022)
In this paper we outline how a future change in consumers’ willingness-to-pay can be accounted for in a consumer welfare effects analysis in antitrust. Key to our solution is the prediction of preferences of new consumers and changing preferences of existing consumers in the future. The dimension of time is inextricably linked with that of sustainability. Taking into account the welfare of future cohorts of consumers, concerns for sustainability can therefore be integrated into the consumer welfare paradigm to a greater extent. As we argue in this paper, it is expedient to consider changes in consumers’ willingness-to-pay, in particular if society undergoes profound changes in such preferences, e.g., caused by an increase in generally available information on environmental effects of consumption, and a rising societal awareness about how consumption can have irreversible impacts on the environment. We offer suggestions on how to conceptionalize and operationalize the projection of such consumers’ changing preferences in a “prospective welfare analysis”. This increases the scope of the consumer welfare paradigm and can help to solve conceptual issues regarding the integration of sustainability into antitrust enforcement while keeping consumer surplus as a quantitative gauge.
Using granular supervisory data from Germany, we investigate the impact of unconventional monetary policies via central banks’ purchase of corporate bonds. While this policy results in a loosening of credit market conditions as intended by policy makers, we document two unintended side effects. First, banks that are more exposed to borrowers benefiting from the bond purchases now lend more to high-risk firms with no access to bond markets. Since more loan write-offs arise from these firms and banks are not compensated for this risk by higher interest rates, we document a drop in bank profitability. Second, the policy impacts the allocation of loans among industries. Affected banks reallocate loans from investment grade firms active on bond markets to mainly real estate firms without investment grade rating. Overall, our findings suggest that central banks’ quantitative easing via the corporate bond markets has the potential to contribute to both banking sector instability and real estate bubbles.
Since the 2008 financial crisis, European largest banks’ size and business models have largely remained unchallenged. Is that because of banks’ continued structural power over States? This paper challenges the view that States are sheer hostages of banks’ capacity to provide credit to the real economy – which is the conventional definition of structural power. Instead, it sheds light on the geo-economic dimension of banks’ power: key public officials conceive the position of “their own” market-based banks in global financial markets as a crucial dimension of State power. State priority towards banking thus result from political choices over what structurally matters the most for the State. Based on a discourse analysis of parliamentary debates in France, Germany and Spain between 2010 and 2020 as well as on a comparative analysis of the implementation of a special tax on banks in the early 2010s, this paper shows that State’s Finance ministries tend to prioritize geo-economic considerations over credit to firms. By contrast, Parliaments tend to prioritize investment. Power dynamics within the State thus largely shape political priorities towards banking at the domestic and international levels.
The study deals with the large variety of judicial trials found in the records of the magistrate and judge of Sibiu of the 16th and 17th century. The topics of the magistratedocuments include heritage, the changing of the property right, guild regulations, rules for day laborers and servants and even orders regarding the number of persons that could attend to a feast and the number of dishes that should be served. The judicial papers deal with litigations, robberies, unpaid debts, frauds, adultery, crime and witchcraft trials.
Kultur und (Rechts)Sprache
(2010)
The content of the present paper can be outlined as follows:
1) Law is an integrative part of culture.
2) Legal terminology is system-bound. Thus, within one and the same language there are as many legal languages as there are legal orders that use that particular language as their legal language.
3) The representation of culture in legal texts is encountered both on word and on text level: on the one hand legal terms have often been referred to as culturemes, as they are informed by the respective legal order; on the other hand texts are being regarded as cultural products as they depend on the particular legal order.
Criminal law exceptionalism, or so I suggest, has turned into an ideology in German and Continental criminal law theory. It rests on interrelated claims about the (ideal or real) extraordinary qualities and properties of the criminal law and has led to exceptional doctrines in constitutional criminal law and criminal law theory. It prima facie paradoxically perpetuates and conserves the criminal law, and all too often leads to ideological thoughtlessness, which may blind us to the dark sides of criminal laws in action.
Both China and the EU have nearly 30 years of legislative experience on GMOs. However, despite all the experience gained so far and theoretical analyses, due to the social concerns about GMO risk, both China and Germany are still encountering a decision-making dilemma on authorizing green GMOs. Therefore, the dissertation is dedicated to the issue of whether there is a possibility that this dilemma could be resolved by improving or reformulating the administrative risk decision-making mechanism regarding green GMOs. Specifically, the dissertation analyses four concrete questions: operation of classical decision-making on danger prevention, the challenges posed by uncertain risks, the theoretical legal response to uncertain risk, and the functioning of legally constituted decision-making mechanisms for GMOs in Germany/ the EU and China.
Conventionally, danger is a threshold for the executive to intervene in individual liberty. It can ensure the rationality of ex-ante intervention and further guarantee a balance between individual liberty and public safety. Regarding the danger prevention decision-making process, the executive authorities investigate the factual information at first; then, based on reliable and accessible common knowledge about the rule of causality, predict the degree of possible damage and the occurrence probability; at last, make ex-ante intervention decisions to interrupt the causality chain and avoid damages.
In the risk society, uncertain risk of GMOs is characterized as collectively wide-ranging, manufactured, high-technological, and value-oriented. The ex-ante intervention of the administration extends from danger to uncertain risk, i.e., risk precaution. The essential cause of uncertain risk is that humans do not have sufficient knowledge and have not yet grasped the rule of causality regarding new technologies. Due to the lack of a cognitive reference standard, it is not easy for the administration to judge the existence of risks and make rational decisions on risk precaution, which, consequently, amounts to losing the balance between individual freedom and public safety. Besides, if the authority makes a decision ad arbitrium, and expects learning by error, this may cause significant secondary risks.
In the risk management system, there are two primary, partly interrelated strategies to manage risk that are currently used: that is, knowledge generation and proceduralization. Specifically, to de-materialize the legislation, integrate multipartite participation in the decision-making process, and open the procedure for updating the information can contribute to the generation of the requisite knowledge. Proceduralization can assist with knowledge generation, promote the reconciliation of conflicting interests, compensate for material and legal deficits, and control the legitimacy of administrative behavior.
In the final chapter, the laws on GMOs in the EU, Germany, and China are analysed, especially under the perspective of the concrete risk decision-making mechanisms.
Overall, this dissertation argues that law can procedurally guarantee the independence and reliability of experts and ensure that access to public participation is open. But what the law can do to address public trust and scientifically uncertain risks, is limited.
This article examines whether restrictions on access to welfare rights for EU immigrants are justifiable on grounds of reciprocity. Recently political theorists have supported some robust restrictions on the basis of fairness. They argue that if EU immigrants do not immediately contribute sufficiently to the provision of basic collective goods in the host state, restrictions on their access to the welfare state are justified. I argue that these accounts of the principle of reciprocity rely on an ambiguous conception of contribution that cannot deliver the restrictions it advocates. Several strategies open to those advocating reciprocity-based restrictions are considered and found wanting. This article defends that verdict from a number of objections.
kurz und kn@pp news : Nr. 53
(2021)
Lernen im fiktiven Strafprozess : Jura-Studierende der Goethe-Uni nehmen an »Moot Court« teil
(2015)
Unter der Leitung von Prof. Dr. Matthias Jahn (Goethe-Universität und im zweiten Hauptamt Richter am OLG Frankfurt) sowie des Rechtsanwalts und wissenschaftlichen Mitarbeiters des Lehrstuhls, Fabian Meinecke, hatten Frankfurter Studierende erstmals die Gelegenheit, selbst in die Robe eines Staatsanwalts oder Strafverteidigers zu schlüpfen – und das ist wörtlich zu verstehen. Marcel Behrendt und Bastian Schmack berichten von ihren Erfahrungen.
Pfälzische Rechtsgeschichten
(2021)
GLC Newsletter 1/2021
(2021)
GLC Newsletter 1/2020
(2020)
GLC Newsletter 02/2019
(2019)
Die kantische Juridifizierung des philosophischen Denkens ist hier im Zusammenhang mit einem Anti-Juridismus zu sehen, den Ian Hunters engagierte Darstellung der Rivalität zwischen einer "zivilen", juristisch geprägten, und einer "metaphysischen" Tradition der Aufklärungsphilosophie überdeutlich gemacht hat: Indem sie das positive Recht transzendiert, um es dem Urteil einer reinen Vernunft zu unterwerfen, stellt die Philosophie eine rechtliche Friedensordnung in Frage, die durch eine religiöse Neutralisierung und immanente Begründung des Gesetzes erreicht worden war. Nach Kant sollte es den letzten Grund seiner Geltung nicht im Willen des Souverän haben, sondern in transzendentalen Prinzipien, die sich den empirischen Kenntnissen der Juristen entziehen und allein den Philosophen zugänglich sind.
Using loan-level data from Germany, we investigate how the introduction of model-based capital regulation affected banks’ ability to absorb shocks. The objective of this regulation was to enhance financial stability by making capital requirements responsive to asset risk. Our evidence suggests that banks ‘optimized’ model-based regulation to lower their capital requirements. Banks systematically underreported risk, with under reporting being more pronounced for banks with higher gains from it. Moreover, large banks benefitted from the regulation at the expense of smaller banks. Overall, our results suggest that sophisticated rules may have undesired effects if strategic misbehavior is difficult to detect.
In this study, we analyze the trading behavior of banks with lending relationships. We combine detailed German data on banks’ proprietary trading and market making with lending information from the credit register and then examine how banks trade stocks of their borrowers around important corporate events. We find that banks trade more frequently and also profitably ahead of events when they are the main lender (or relationship bank) for the borrower. Specifically, we show that relationship banks are more likely to build up positive (negative) trading positions in the two weeks before positive (negative) news events, and also that they unwind these positions shortly after the event. This trading pattern is more pronounced for unscheduled earnings events, M&A transactions, and after borrower obtain new bank loans. Our results suggest that lending relationships endow banks with important information, highlighting the potential for conflicts of interest in banking, which has been a prominent concern in the regulatory debate.
Increasing the diversity of policy committees has taken center stage worldwide, but whether and why diverse committees are more effective is still unclear. In a randomized control trial that varies the salience of female and minority representation on the Federal Reserve’s monetary policy committee, the FOMC, we test whether diversity affects how Fed information influences consumers’ subjective beliefs. Women and Black respondents form unemployment expectations more in line with FOMC forecasts and trust the Fed more after this intervention. Women are also more likely to acquire Fed-related information when associated with a female official. White men, who are overrepresented on the FOMC, do not react negatively. Heterogeneous taste for diversity can explain these patterns better than homophily. Our results suggest more diverse policy committees are better able to reach underrepresented groups without inducing negative reactions by others, thereby enhancing the effectiveness of policy communication and public trust in the institution.
We identify strong cross-border institutions as a driver for the globalization of in-novation. Using 67 million patents from over 100 patent offices, we introduce novel measures of innovation diffusion and collaboration. Exploiting staggered bilateral in-vestment treaties as shocks to cross-border property rights and contract enforcement, we show that signatory countries increase technology adoption and sourcing from each other. They also increase R&D collaborations. These interactions result in techno-logical convergence. The effects are particularly strong for process innovation, and for countries that are technological laggards or have weak domestic institutions. Increased inter-firm rather than intra-firm foreign investment is the key channel.