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Institute
- Lehrstuhl für Hochschul- und Wissenschaftsmanagement (Univ.-Prof. Dr. Michael Hölscher) (4)
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- Lehrstuhl für Öffentliches Recht, insbesondere deutsches und europäisches Verwaltungsrecht (Univ.-Prof. Dr. Ulrich Stelkens) (1)
Electoral disinformation has become one of the most challenging problems for democratic states. All of them are facing the phenomenon of - both online and offline - dissemination of false information during pre-electoral period, which is harmful for individual and collective rights. As a consequence, some European countries adopted special measures, including summary judicial proceedings in order to declare that information or materials used in elec-tioneering are false and to prohibit its further dissemination. There are already three rulings of the ECtHR concerning this expeditious judicial examination provided in the Polish law. In December 2018 France passed complex regulation against manipulation of information that include similar mechanisms. This article, basing on the ECtHR’s case law and some national experiences, attempts to define the minimal European standard for measures targeted at electoral disinformation, especially judicial summary proceeding. It contains the analysis of the notion of electoral disinformation, defines the state’s positive obligations in this sphere, and indicates mayor challenges for the legal framework. The principal argument is that summary judicial proceedings – if adequately designed – cannot be questioned from the Convention standpoint and provide a partial solution to the problem of electoral dis-information.
National immigration policies increasingly meet with fierce political resistance from lower levels of government, in particular municipalities. Amongst industrialized countries, the USA and Germany are probably the most extreme examples. In the USA, a growing numbers of subnational entities, including some of the country’s largest cities, openly refuse to cooperate with federal immigration authorities. In retaliation, the Trump administrations has threatened several of these so-called ‘sanctuary cities’ to claim back past and to withdraw further federal funding from a number of jointly funded programs. Several court cases in this matter are pending. In stark contrast, an increasing number of German municipalities – labelled by the author as ‘non-sanctuary cities’ - have sought from their respective state governments a formal limitation of migration inflows into their territory, citing an overload on critical local administrative and not least housing resources. This paper contributes to the pertinent literature on multi-level governance in the area of immigration, first, by applying the economic theory of fiscal federalism to identify the theoretically appropriate level of government for defining and enforcing immigration policy. Second, the phenomenon of ‘sanctuary cities’ vs. ‘non-sanctuary cities’ and their potential impact on the design and enforcement of national immigration policies will be analyzed.
Artificial Intelligence (“AI”) is already being employed to make critical legal decisions in many countries all over the world. The use of AI in decision-making is a widely debated issue due to allegations of bias, opacity, and lack of accountability. For many, algorithmic decision-making seems obscure, inscrutable, or virtually dystopic. Like in Kafka’s The Trial, the decision-makers are anonymous and cannot be challenged in a discursive manner. This article addresses the question of how AI technology can be used for legal decisionmaking and decision-support without appearing Kafkaesque.
First, two types of machine learning algorithms are outlined: both Decision Trees and Artificial Neural Networks are commonly used in decision-making software. The real-world use of those technologies is shown on a few examples. Three types of use-cases are identified, depending on how directly humans are influenced by the decision. To establish criteria for evaluating the use of AI in decision-making, machine ethics, the theory of procedural justice, the rule of law, and the principles of due process are consulted. Subsequently, transparency, fairness, accountability, the right to be heard and the right to notice, as well as dignity and respect are discussed. Furthermore, possible safeguards and potential solutions to tackle existing problems are presented. In conclusion, AI rendering decisions on humans does not have to be Kafkaesque. Many solutions and approaches offer possibilities to not only ameliorate the downsides of current AI technologies, but to enrich and enhance the legal system.
As WTO members increasingly invoke security exceptions and the first panel report insofar was issued in Russia-Traffic in Transit, the methodical and procedural preliminaries of their adjudication must be reassessed. The preliminaries pertain to justiciability and to the proper interpretive approach for their vague terms that seemingly imply considerable discretion to WTO members, all the more as general exceptions are subject to expansive interpretation. Reading security exceptions expansively appears not viable as they miss the usual safeguard against abuse (i.e. the chapeau of Arts XX GATT/XIV GATS). This lack of safeguards rather suggests caution in conceptualising them expansively, as do the systemic consequences of recent attempts to re-politicise security exceptions which run the risk of nullifying the concept of multilateral trade regulation altogether. Furthermore, the appropriate standards of review and proof must be explored which have to strike a balance between control and deference in national security.
Administrative sanctions can be said to dwell in the periphery of punishment because they do not require setting the wheels of criminal procedure in motion. This allows States to save public resources as well as helps them to escape closer scrutiny at the judicial level. At the same time, the imposition of administrative sanctions usually curtails individual guarantees. Against this background, this article examines where the European Court of Human Rights (ECtHR) draws the line between measures belonging to the ‘hard core of criminal law’ and the periphery. After a presentation of gradual broadening of the ‘criminal limb’ guarantees of Article 6 European Convention on Human Rights to administrative measure of a punitive nature, it explores where do these guarantees meet their limits by taking the approach adopted in the landmark Jussila judgment as a point of departure. Subsequently, a structured analysis of the selected ECtHR case law in which this approach has been applied or – at least – invoked is provided. The article is finished with a reflection on the current interpretation of the said penumbra of punishment, which, among other things, identifies the possible gaps of individual protection, and the outlook for the future.
The European Commission presented, in its White Paper on the Future of Europe, scenarios on the future of the EU in 2025, which prompt the question as to their meaning for the future of EU administrative law. This article explores the implications of the scenarios for the future of EU executive rulemaking and its constitutional consequences. As some scenarios imply a more powerful political role of the Commission, and almost all expand the scope and usage of executive rulemaking, the executive power gains induce the need for more distinct constitutional guidelines for executive rulemaking and for strengthened parliamentary control, to preserve the institutional power balance between legislative and executive rulemaking. The analysis develops proposals insofar and demands respect for constitutional barriers already enshrined in EU primary law but not sufficiently addressed yet in institutional practice.
From today's viewpoint it seems almost inconceivable that there once was a time where academia functioned without peer review processes, which are now so much part and parcel of the academic environment. Peer review is mainly taken for granted and we assume that it generally works well in estimating the worth of academic outputs of differents kinds (publications, grant proposals etc.) However, the process itself is not free of criticism and much can still be done to improve review quality. In this paper I explore and question the purpose and function of peer review, engage with various problems that can occur in the process, and make suggestions for ways in which peer review might be improved. It is based on empirical research, participation in various peer review forms and observation of accreditation practice.
Higher education in both Germany and the UK has undergone numerous changes in the last two decades. It seems worthwhile to examine how varying forms of HE governance and pan-European influences have played out upon these two national systems. Of note in particular are Bologna, European Standards and Guidelines in Quality Assurance, and various accreditation regulations. In this article we postulate to what extent these two systems may or may not be able to move forward in the imminent future. Is German higher education, for example, becoming more autonomous if it can display its own systems of quality control are working well (system-accreditation)? Has British higher education relinquished autonomy, as both research and teaching domains are subject to external review (REF/TEF)? What can we learn about the transformational impact any of these mechanisms are having? This chapter adresses these issues and asks which benefits or disadvantages are to be gained by different systems in article.
Article 6(2) TEU provides that the EU shall accede to the European Convention on Human Rights. However, the EU accession project has been significantly delayed by Opinion 2/13 of the ECJ. At the same time, there appears to be some harmony in the case law of the two European Courts, which could lead to the status quo being considered as a valid alternative to EU accession. It might therefore be tempting to remove Article 6(2) altogether from the TEU at the next revision of the Treaties. This paper argues that Article 6(2) should stay in the TEU, because a closer look reveals that the current status quo is not satisfactory: it does not allow an adequate representation of the EU in the procedure before the European Court of Human Rights, nor is it capable of ensuring in the long-term comprehensive and stable consistency between EU law and the Convention. Moreover, removing Article 6(2) TEU would undermine the very idea of a collective understanding and enforcement of fundamental rights. This could initiate a process leading to the current European architecture of fundamental rights protection being unravelled altogether. Hence, there is no return from Article 6(2) TEU. Neither is there from actually implementing it.
This article outlines the his tory of several attempts to increase salaries and pensions of members of the German Bundestag in the early I990s. It shows the unethical tactics used by parliamentarians and the way in which public information was in part consciously designed to mislead. It is argued that Bundestag members tend to form a political cartel when decisions concerning their salaries and pensions are made. Similiar tendencies can be observed in all parliamentary decisions involving party finance, providing support for Katz and Mairs thesis that 'catch-all' parties are generally being replaced by 'cartel parties'. Having analysed the issues involved, the article calls for greater accountability and responsibility on the part of German politicians when their own personal advantage is at issue.