Washington & Lee law professor Russell Miller’s contribution to Verfassungsblog was published on Wednesday, February 26, 2014. Verfassungsblog is a German law blog hosted by the prestigious Wissenschaftskolleg zu Berlin. Professor Miller’s post is titled Poor Prospects for Internationalization: Germans and Americans in Law Faculty Jenseits des Atlantiks. It is part of a series reacting to the recently published report of the German Council of Sciences and Humanities examining the current state of and future of German legal education.
German law scholar and Washington and Lee law professor Russell Miller has contributed to I-CONnect, Blog of the International Journal of Constitutional Law and ConstitutionMaking.org. Professor Miller’s post, titled The “Rumble in Karlsruhe”: The German Federal Constitutional Court’s Historic OMT Case was published on February 11, 2014.
The English translation of the German Federal Constitutional Court decision may be read here. Additional news coverage on the historic decision may be found from the Financial Times, Bloomberg, and Spiegel Online.
Washington and Lee law professor Russ Miller published an essay recently in the newspaper Frankfurter Allgemeine Zeitung, Germany’s version of The New York Times. Prof. Miller’s piece was coauthored with Prof. Ralf Porscher of the University of Freiburg.
In the article, Miller and Porscher examine the NSA evesdropping affair and its impact in European and American relations, with a special focus on the legal-cultural differences that help explain the different reactions to the scandal. They conclude:
Our description of these legal-cultural differences has two consequences for Europeans. First, Europeans cannot expect that mere appeals to an anticipatory, systematic right to informational self-determination will have an effect. If the Americans are to be stirred, then Europeans must be prepared to point to pragmatic consequences for transatlantic relations. The American political system is more likely to react to material disadvantages, as seems to be the case with the newly emerging calls for Congressional review and oversight of the intelligence community in response to the political damage caused by monitoring Chancellor Merkel’s phone. Second, Europeans cannot simply import their broader project of achieving legal harmonization through the European Union project into their negotiations with the Americans over this controversy. Europeans must reflect on their implicit expectation of legal harmonization when pursuing this urgent and important debate over data protection with their American partners. The differences evident between the two sides have their roots in distinct legal traditions. Understanding this distinction and not merely wishing it away will be a key to Europe’s successful engagement with the issue. Agreement, for example, might emerge around calls for the greatest possible legal commitment to transparency in the collection of data and its use. This might satisfy both the European urge for some legal structure while increasing the chances for a political check that fits better with the American approach.
The essay in the Frankfurter Allgemeine Zeitung can be found online here. An English language translation is also available here at the website for the American Institute for Contemporary German Studies.
On Oct. 16, Washington and Lee law professor Russell Miller presented in Bonn, Germany at an international program on security and the law. He will join with German and international experts to discuss key challenges of effective legal protection in regards to cyber security.
Shortly after, on Oct. 18-19, Prof. Miller will return to host the First Annual Montpelier Roundtable on Comparative Constitutional Law. He will lead a number of comparative law scholars in a discussion on Superficial Convergence. Miller co-convened this inaugural session with University of Virginia colleagues Dick Howard and Mila Versteeg.
Washington and Lee law professor Russ Miller presents this week at a special event at the Geothe Institute in Chicago. The event, sponsored by the Goethe Institute of Chicago, the international law firm Goldberg Kohn, and the Robert Bosch Foundation Alumni Association, is a round table discussion occurring just days before Germany’s federal election including scholars and diplomats on the legal framework for German democracy, the constitutional issues at stake in the election, and the politics and policies at the center of the political season.
Miller is author (with Donald Kommers) of the third edition of the book The Constitutional Jurisprudence of the Federal Republic of Germany (Duke Press 2013). He is KoRSE Fellow at the University of Freiburg, a former Fulbright Senior Research Fellow at the Max Planck Institute for Comparative Public Law and Public International Law (Heidelberg), and an alum of the Robert Bosch Foundation Fellowship Program.
More information about the program is available at the event website.
Last month, we reported on Washington and Lee law professor Russell Miller and his KoRSE Fellowship at the University of Freiburg, where he is researching and collaborating with leading scholars on the issues of security and liberty who are based at the University of Freiburg’s Center for Civil Security as well as the program’s partners at Bucerius Law School (Hamburg), the Max Planck Institute for Foreign and International Criminal Law (Freiburg), and the German Federal Police Academy.
On July 10, Prof. Miller delivered a lecture at the University that was very well received and led to a full-page interview in Germany’s leading weekly news magazine ‘Der Spiegel’. The text of the interview is available online to those with a paid subscription. The lecture and interview are based on Prof. Miller’s 2008 book U.S. National Security, Intelligence and Democracy (Routledge Press). The book reflected on the 1970s Senate Select Committee that undertook an extensive investigation of U.S. national security activities. Known as the ”Church Committee” (for its Chair, Idaho Senator Frank Church), the Senate Select Committee’s reports remain one of the most detailed accountings of the American intelligence community and the reports served as the basis for reforms that now make-up the legal and oversight framework for American intelligence programs. An excerpt of Prof. Miller’s lecture, which appears as a Blog-post at the Verfassungsblog, is below:
…the intensely contemporary nature of my topic gives me pause for at least two reasons.
First, I am very well aware that news of American surveillance and espionage has stirred alarm and resentment throughout German society, sending shock waves all the way to the Kanzleramt. Personal and political relations between our countries are once again strained. With this in mind, I hope you will understand if I offer the following caveat for today’s lecture. As a simple law professor I am not in a position to speak for or defend the Obama Administration’s policies. I do have some personal and professional insight into the thinking of the President’s team, which I am happy to share with you, for whatever it is worth. And, as an American voter, I assure you that I take my democratic responsibility for the actions of my government very seriously. But these might be the limits of my ability to respond directly to and account for the developments of the last month.
Second, as a simple law professor, I must admit to having some anxiety about speaking today on a topic that can be described as “dramatic and fast-moving.” In many ways, these are the antinomies of good scholarship, which might be more properly described as “plodding and tedious.” There is a reason, I suppose, why professors play such an unimportant role in the canon of American action films. This concern requires me to offer yet another caveat for today’s lecture. I don’t intend to try to paint a full picture of the still-unfolding, frenetic developments of the last weeks. For now that is a task better left to the media, particularly the excellent journalists on both sides of the Atlantic who are doing important work in covering the story.
Prof. Miller will again address this topic at an invited lectured before the German Federal Court of Justice in Karlsruhe on July 18, hosted by the German Judicial Press Conference.
If, as they say, timing is everything, then W&L Law Professor Russell Miller has hit upon something very special with his recent receipt of a KoRSE Fellowship at the University of Freiburg in Germany. With the media still buzzing over the news of Edmund Snowden’s evasion of an American warrant after he leaked confidential documents that chronicle the American government’s extensive PRISM surveillance program and other secret surveillance activities, Miller has been invited to serve as a Fellow in the University of Freiburg’s “Network for the Law of Civil Security in Europe.” The fellowship will allow him to research and collaborate with leading scholars on the issues of security and liberty who are based at the University of Freiburg’s Center for Civil Security as well as the program’s partners at Bucerius Law School (Hamburg), the Max Planck Institute for Foreign and International Criminal Law (Freiburg), and the German Federal Police Academy.
Miller will be in residence in Freiburg on several occasions in the 2013/2014 academic year, beginning with a three-week stay in July, 2013. “I’m thrilled about the opportunity to work closely with dynamic scholars on these issues at one of Germany’s most impressive law faculties,” Miller said. He noted that the University of Frieburg is the academic home of two of the German Constitutional Court’s justices, including the Court’s President, Prof. Andreas Vosskuhle. “The KoRSE program is especially exciting,” Miller explained, “because it deliberately seeks to embed discussions of this inherently transnational issue in a global research context.”
During his time in Freiburg Professor Miller will pursue several projects. First, he will deliver a lecture on July 10, drawing on his 2008 book U.S. National Security, Intelligence and Democracy (Routledge Press). The book reflected on the 1970s Senate Select Committee that undertook an extensive investigation of U.S. national security activities. Known as the “Church Committee” (for its Chair, Idaho Senator Frank Church), the Senate Select Committee’s reports remain one of the most detailed accountings of the American intelligence community and the reports served as the basis for reforms that now make-up the legal and oversight framework for American intelligence programs. This, of course, is the very framework implicated by Snowden’s leaks and the PRISIM program. Miller’s lecture will detail, for a foreign audience unfamiliar with this important piece of American history, the background of the Church Committee while raising the broader questions of how a society best achieves the twin goals of providing security while ensuring liberty. Second, Prof. Miller will begin planning-in close collaboration with other researchers in Freiburg-for the fall 2013 “German Law in Context Program,” which will involve a number W&L law and undergraduate students in an intensive, interdisciplinary survey of Germany’s efforts to balance security and liberty in its unique struggle with extremism and threats to democracy. The German Law in Context Program is an annual seminar that enjoys the support of the German Law Journal, which Prof. Miller and a number of students edit at W&L. It is also one of the law school’s most visible collaborations with W&L’s undergraduate college, as faculty from the German/Russian Department, the History Department, and the Williams School’s Political Science Faculty contribute their expertise to events and programming in significant ways. Third, Prof. Miller will use his time in Freiburg to lay a research foundation for and to facilitate his in-person observations of the German Federal Constitutional Court’s imminent review of applications to ban a political party (the right-wing NPD). This is a once-in-a-generation procedure that implicates German history, society and politics in remarkable ways. In this effort, Prof. Miller will be building on the work that led to the recent publication of his book The Constitutional Jurisprudence of the Federal Republic of Germany (Duke Press).
On June 3-4 Prof. Miller was in Lausanne, Switzerland to present the methodological portion of his research project “Germany’s Plural Legal Culture” at the annual meeting of the comparative law association Juris Diversitas. The two-day conference – hosted by the Swiss Institute of Comparative Law – featured paper presentations and commentary from comparative law scholars from around the world. The program’s website is:
A 1999/2000 alum of the Robert Bosch Foundation Fellowship Program, Prof. Russell Miller was elected by the 450 members of the alumni association to serve as Co-President for the 2012-2013 term. That service concluded Friday and Saturday (May 30 / June 1) in Berlin with a two-day program organized by Miller (and his Co-President Emily Olman).
Responding to German President Gauck’s query “How is it that Germans and Americans have such a different understanding of freedom?” – the program had the title “Freedom in the Transatlantic Sphere” and featured a keynote address from Former German Constitutional Court Justice Dieter Grimm and two panels that pursued a transatlantic dialogue on “Freedom as Rights” and “Freedom as Social or Economic Liberty”. The program’s website is:
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.”