Washington and Lee law professor Russ Miller has published a piece titled ”Differencing Same-Sex Marriage” at the blog site for the Journal of International Constitutional Law (I-Connect).
In the piece, Miller explores recent efforts by the U.S. Supreme Court and the Constitution Court of Germany to deal with same-sex marriage. He notes that there is strong temptation for comparative law scholars to draw comparisons between the U.S. and Germany in these cases, but argues that that effort might be mistaken. He concludes the piece by saying:
If the Supreme Court ends up ruling in favor of same-sex marriage, the temptation for comparative constitutional lawyers to conclude that there is an emerging constitutional convergence in favor of the rights of homosexuals will be great. Whatever political—or even theoretical—position that functionalist comparative law conclusion serves, it would be only the most superficial comparative “reality.”
Here is the press release from the American Institute for Contemporary German Studies regarding today’s appearance by W&L Law Professor Russell Miller:
AICGS, the Goethe-Institut’s Mapping Democracy Series, the German Embassy-Cultural Division, and the Robert Bosch Foundation Alumni Association are pleased to host Donald Kommers and Russell Miller, co-authors of The Constitutional Jurisprudence of the Federal Republic of Germany (2012), for a panel discussion on “The Constitutional Framework for German Democracy.” The event will take place at 6:30pm on Thursday, April 11, 2013, at the Goethe-Institut, 812 Seventh St, NW.
This new edition, with its extensive treatment of the German law of democracy, comes at an appropriate time, shortly before Germany’s federal elections in the fall. In this discussion the authors will explore the constitutional facets of electoral processes in Germany as well as the broader notion of democracy in the Constitutional Court’s decisions. The book, an English-language commentary on German constitutional law, also features translations of more than 100 decisions of the German Federal Constitutional Court. In her foreword to the latest edition, Supreme Court Justice Ruth Bader Ginsburg calls the book “a masterful text.”
Prof. Donald Kommers is a Joseph and Elizabeth Robbie Professor of Political Science and Concurrent Professor of Law Emeritus at Notre Dame University Law School. He is the author of over 100 major articles and books and his next book, Germany’s Constitutional Odyssey, is expected to be published in early 2014. Prof. Kommers earned his B.A. in philosophy and English literature from the Catholic University of America and his advanced degrees (M.A. and Ph.D.) in political science from the University of Wisconsin-Madison, where he also studied law.
Prof. Russell Miller is a Professor of Law at Washington and Lee University School of Law. He has been a guest professor in Germany and a frequent Research Visitor at the Max Planck Institute for Comparative Public Law and Public International Law in Heidelberg. He was a 2009/2010 Fulbright Senior Research Fellow to Germany. Alongside books in the fields of comparative law, international law, and U.S. constitutional law, Prof. Miller has published articles and commentary in the American Journal of International Law, Columbia Journal of Transnational Law, Indiana Law Journal, Journal of National Security Law, Journal of Comparative Law, and Washington & Lee Law Review. Prof. Miller graduated with a B.A. in English literature from Washington State University and his J.D. and M.A. in English literature from Duke University. He also received an LL.M. from Johann Wolfgang Goethe University in 2002.
On Friday, March 22, W&L Professor Russell Miller gave a talk entitled “Germany vs. Europe: The Principle of Democracy in German Constitutional Law and the Struggle for European Integration.” The talk was followed by a roundtable discussion with Mila Versteeg (University of Virginia School of Law), and Gerard Alexander (Woodrow Wilson Department of Politics at UVa). The talk was co-pponsored by the Department of German and the Center for German Studies at UVa. Here is a description of the lecture:
Professor Russell Miller Discusses His Book on the Constitutional Jurisprudence of Germany at Notre Dame
On March 1, 2013 Professor Russell Miller made a presentation at the Nanovic Institute for European Studies at the University of Notre Dame. The event celebrated the publication of his new book “The Constitutional Jurisprudence of the Federal Republic of Germany” (Duke University Press 2012). The book was recognized alongside select publications engaging a broad spectrum of disciplines relevant to European affairs and culture, including: Vittorio Hoelse’s book “The Philosophical Dialogue”; Stepheh Fallon’s book “Paradise Regained – The Complete Shorter Poems by John Milton”; Semion Lyandres’ book “The Fall of Tsarism”; Luc Reydam’s book “International Prosecutors”; and Henry Weinfeld’s book “The Blank-Verse Tradition from Milton to Stevens”. The Nanovic Institute is a platform for more than 140 faculty members and scholars from over twenty-five departments at the University of Notre Dame. Prof. Miller’s co-author, Prof. Donald Kommers, is an emeritus member of the Notre Dame’s Political Science and Law faculties. In his remarks Prof. Miller raised questions about power of the German Constitutional Court and its legitimacy in contemporary Germany’s well-settled democracy.
Washington and Lee law professor Russ Miller is leading a three-day seminar for graduate and post-graduate researchers at Humboldt University’s Law Faculty in Berlin. The seminar, entitled “Beyond Comparison: Germany’s Plural Legal Culture” is meant to challenge traditional comparative law approaches to classifying and, thereby engaging with, German law and legal culture.
According to the program website, “comparative lawyers, when classifying the world’s legal systems into several ‘legal families,’ insist on assigning Germany to the genus ‘civil or continental law’. Indeed, Germans have embraced the characterization, not just conceding but very often celebrating this traditional characterization of their legal culture. This practice ignores many of the lessons jurisprudence has learned from critical theory, particularly the compelling claims made by legal pluralism.”
The curriculum and materials for the seminar are largely drawn from Miller’s contributions to the forthcoming co-authored comparative law casebook co-authored titled “Global Legal Tradtiions: Comparative Law for the 21st Century” (Lexis/Nexis). A number of the seminar participants will be fellows in the post-graduate fellowship program “Rechtskulturen” (“Legal Cultures”) jointly sponsored by the Hulmboldt Law Faculty and the Wissenschaftskolleg zu Berlin.
More information about the program is available online.
Washington and Lee law professor Russ Miller will be a panelist at this weekend’s Transatlantic Law Forum conference at George Mason University (GMU). He will participate on a panel titled “Constitutional Courts” moderated by Judge Douglas Ginsburg, U.S. Court of Appeals for the D.C. Circuit. The title of Prof. Miller’s talk is titled “The German Constitutional Court and Deliberative Democracy.”
The Transatlantic Law Forum is a joint venture between GMU and the Council on Public Policy in Bayreuth, Germany. It aims to create a transatlantic community of lawyers, judges, policymakers, scholars and journalists with abiding interests in questions of constitutionalism and constitutional government. TLF events feature prominent lawyers, judges and scholars from both sides of the Atlantic.
The program, featuring panels at GMU’s Arlington campus on Friday and Saturday, Feb. 15-16, 2013, is organized under the theme “The Rule of Law and the Administrative State in Crisis”.
More information about the event is available at this link: http://www.masonlec.org/events/sixth-annual-transatlantic-law-forum/
A new book by Washington and Lee Law Professor Russ Miller and coauthor Donald Kommers (Notre Dame) has received an extremely positive review in a leading German newspaper. The book, titled “The Constitutional Jurisprudence of the Federal Republic of Germany” is a major revision of a landmark treatise on German constitutional law first published in 1989.
The book was reviewed in Germany’s paper of record, the “Frankfurter Allgemeine Zeitung,” which is also distributed in 148 countries every day. Below is a partial translation of the review:
So that Americans Can Also Understand the German Constitution
by Katja Gelinsky
“… In our digital age, would there be any reason for an updated, print edition of the Constitutional Jurisprudence of the Federal Republic of Germany, which last appeared as a revised edition in 1997? Luckily, that question was answered in the affirmative. The new edition is a splendid engagement with an expanded spectrum of themes, touching upon national and global developments, including European integration, terrorism, questions of data privacy, and protection against discrimination. The expert and insightful updating of the book can be credited to the decision of Donald Kommers – who has recently turned 80 – to bring Russell Miller onto the project as co-author. Miller, who teaches at Washington & Lee University in Virginia, is one of the best young American scholars of German constitutional law. But, as Co-Editor of the German Law Journal, he also has an exceptional grasp of border-transcending challenges and other new constitutional law developments. The Constitutional Jurisprudence profits from all of this, for example, where it is noted that the freedom of opinion in the jurisprudence of the Federal Constitutional Court can comfortably claim to be the ‘equal of any regieme for the protection of freedom of speech provided in the democratic world.’ This is true, the authors explain, despite the complicated balancing process that is central to the German system of rights protection. Significantly, Kommers and Miller do not open up German constitutional law by systematic comparison with other constitutions. Instead, they achieve this through their close work with German constitutional law itself. …”
The Constitutional Jurisprudence of the Federal Republic of Germany has long been an invaluable resource for scholars and practitioners of comparative, international, and constitutional law, as well as of German and European politics. The new edition includes entirely new chapters addressing the relationship between German law and European and international law; social and economic rights, including the property and occupational rights cases that emerged from Germany’s unification; jurisprudence related to issues of equality, particularly gender equality; and the tension between Germany’s counterterrorism efforts and its constitutional guarantees of liberty.
We are pleased to announce the publication of the third edition of Professor Russell Miller‘s book The Constitutional Jurisprudence of the Federal Republic of Germany (Duke University Press). This renowned English-language guide to German constitutional law has been fully updated and significantly expanded to incorporate previously omitted topics and recent decisions of the German Federal Constitutional Court, and includes a new foreword by Justice Ruth Bader Ginsburg.
“In the endeavor to gain knowledge from the problems confronted and resolutions reached by our counterparts abroad, the work of Donald P. Kommers, now joined by Russell A. Miller, is a rich resource. Offering far more than excellent English-language translations of the decisions of a renowned tribunal, Professors Kommers and Miller supply incisive analyses and commentary. I am pleased to herald the publication of this third edition of a masterful text. . . . Brought right up to the moment . . . The Constitutional Jurisprudence of the Federal Republic of Germany is an engaging, enlightening, indispensable source for those seeking to learn from the text and context of German constitutional jurisprudence.”—From the foreword by Ruth Bader Ginsburg, Associate Justice, the Supreme Court of the United States
First published in 1989, The Constitutional Jurisprudence of the Federal Republic of Germany has become an invaluable resource for scholars and practitioners of comparative, international, and constitutional law, as well as of German and European politics. The third edition of this renowned English-language reference has now been fully updated and significantly expanded to incorporate both previously omitted topics and recent decisions of the German Federal Constitutional Court. As in previous editions, Donald P. Kommers and Russell A. Miller’s discussions of key developments in German constitutional law are augmented by elegantly translated excerpts from more than one hundred German judicial decisions.
Compared to previous editions of The Constitutional Jurisprudence of the Federal Republic of Germany, this third edition more closely tracks Germany’s Basic Law and, therefore, the systematic approach reflected in the most- respected German constitutional law commentaries. Entirely new chapters address the relationship between German law and European and international law; social and economic rights, including the property and occupational rights cases that have emerged from reunification; jurisprudence related to issues of equality, particularly gender equality; and the tension between Germany’s counterterrorism efforts and its constitutional guarantees of liberty. Kommers and Miller have also updated existing chapters to address recent decisions involving human rights, federalism, European integration, and religious liberty.
For more information, and to order the book directly from Duke University Press, please visit http://www.dukeupress.edu/Catalog/ViewProduct.php?productid=13809.
Professor Russell A. Miller to Convene Symposium in Honor of Renowned German Constitutional Law Scholar
W&L Law Professor Russell Miller has organized a symposium in honor of Don Kommers, a German legal academic who is widely seen as one of the founders of the comparative constitutional law discipline and a much-admired specialist on German constitutional law. To honor him on his 80th birthday, Professor Miller has partnered with two prestigious academic institutions in Berlin–and several important sponsors–for this symposium. The program will be hosted by the Wissenschaftskolleg zu Berlin (Berlin Academy of Science) and the American Academy in Berlin. Sponsors include the Draeger Foundation, the German Federal Ministry of Justice, Notre Dame University and the German Law Journal.
The event begins on Friday, October 26, in the evening with a dinner and podium discussion, the latter featuring Kommers in conversation with former German Constitutional Court Justice Dieter Grimm and Harvard Law Professor Vicki Jackson. Among the invitees to the dinner are a high-level, ministerial delegation from the German Federal Ministry of Justice and current and former justices of the German Constitutional Court. On Saturday, October 27, there will be two panels exploring the theme “The Curious Life of the Grundgesetz in America” and will aim to consider how Kommers’ work–which opened up German constitutional law for American researchers–impacted German constitutional law. The first panel will feature Americans who work on German constitutional law, including a presentation by Professor Miller entitled “What we Teach When we Teach German Constitutional Law”. The second panel will feature Germans who have extensive experience in America, including current German Constitutional Court Justice Susanne Baer.
Here is an excerpt from Professor Miller’s commentary, which is available in full at http://www.aicgs.org/issue/the-euro-rescue/:
Following its surprising, premature exit from this summer’s UEFA European Soccer Championship, it is understandable that Germany has turned its hopeful eyes once again to the international game. Yes, qualification for the 2014 World Cup is underway. And Germany is winning again, adding a 2-1 victory over Austria to an earlier 3-0 triumph over the Faroe Islands. The Nationalelf is well ahead in its qualifying group. But these are expected victories in the most preliminary stage of Germany’s drive for a fourth star. The team’s website declares: “Despite their success, Head Coach Löw and his players are not satisfied.” The games that matter await them in Brazil two years from now.
We are in much the same position following the German Federal Constitutional Court’s decision, which allowed the country’s ratification of the European Stability Mechanism (ESM) Treaty to go forward. This game led to an utterly predictable result. And it was only the latest legal episode in the bigger, never-ending story of Germany’s awkward integration into Europe.
The Court’s Second Senate rejected temporary injunction applications that would have kept Germany out of the ESM until the Court could rule on the substance of several complaints that alleged violations of parliamentary prerogatives and the principle of democracy (Articles 20, 38, and 79 of the Basic Law). Europe’s flailing effort to contain and ultimately control the debt crisis has been left to stagger on. But considering the breathtaking implications for the world economy had the Court blocked Germany’s essential participation in the new permanent rescue apparatus, there was as much suspense in this judicial drama as there was in Germany’s recent fixture with the Faroe Islands. Hours before the Court’s Second Senate announced its decision, a German colleague summed up the result that legal experts were predicting: “Of course the Court will approve the ESM. What else can it do?” Showing their great relief over this anti-climax, currency and securities exchanges nevertheless made gains immediately after this latest victory for Europe was announced in Karlsruhe. As expected, the decision also pronounced limitations on further or ongoing German integration. This has been the Court’s game plan across decades: tolerate the latest manifestation of European integration while using each case to articulate or reassert domestic constitutional limits on that process. Two balls hit the back of the net in this regard. First, the Court insisted that Germany’s ratification of the ESM Treaty could go forward only if the Parliament’s ratification established, as a matter of international law, that Germany’s commitment to the ESM could not be pushed beyond € 190 billion without new and explicit approval from the Parliament. This, the Court explained, is necessary to maintain Parliament’s democratically legitimated budgetary authority, which the Court regards as a fundamental piece of Germany’s unalterable constitutional identity. Second, the Court reinforced Parliament’s competence for further European integration by demanding that Germany’s ratification contain reservations to the ESM Treaty’s confidentiality provisions. If strictly construed, the Court worried, such confidentiality rules might have been invoked to hinder or prevent the flow of information about ESM policy to the German Parliament. The first of these limitations was the slightly more impressive of the two shots. But in the event, it was nothing spectacular. In making the point about Parliament’s budgetary prerogative, the Court relied extensively on its decision from last September in which it upheld Germany’s participation in Europe’s ad hoc efforts to stave off Greece’s financial collapse.
Read the rest of the commentary at http://www.aicgs.org/issue/the-euro-rescue/.