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Some Kind of Right

  • Jud Mathews

Abstract

The Right to Be Forgotten II crystallizes one lesson from Europe’s rights revolution: persons should be able to call on some kind of right to protect their important interests whenever those interests are threatened under the law. Which rights instrument should be deployed, and by what court, become secondary concerns. The decision doubtless involves some self-aggrandizement by the German Federal Constitutional Court (GFCC), which asserts for itself a new role in protecting European fundamental rights, but it is no criticism of the Right to Be Forgotten II to say that it advances the GFCC’s role in European governance, so long as the decision also makes sense in the context of the European and German law. I argue that it does, for a specific reason. The Right to Be Forgotten II represents a sensible approach to managing the complex pluralism of the legal environment in which Germany and other EU member states find themselves.

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Copyright

This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.

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Professor of Law, Penn State Law.

Footnotes

References

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1 I borrow the phrase from Helen Keller and Alec Stone Sweet. The Europe of Rights: The Impact of the ECHR on National Legal Systems (Helen Keller and Alec Stone Sweet eds., 2008). Their book concerns the European Convention of Human Rights.

2 While individuals can directly bring challenges to EU acts in the CJEU under Article 263 TFEU, individuals cannot bring challenges in the CJEU to national legislation that implements EU law. Rather, the CJEU reviews such legislation only via the Article 267 preliminary reference procedure, and preliminary references can be made only by courts. Under the expansive individual complaint provision of the Basic Law, litigants in German courts can normally seek GFCC review when they believe their fundamental rights to be violated, see Basic Law art. 93 para. 1 lit. 4a. In areas of fully harmonized EU law, however, it is only EU fundamental rights and not German fundamental rights that apply.

3 Henry J. Friendly, Some Kind of Hearing, 123 U. Penn. L. Rev. 1267 (1975). The phrase “some kind of hearing” is taken from Supreme Court Justice Byron White’s majority opinion in Wolff v. McDonnell, 418 U.S. 539, 557–58 (1974).

4 Jud Mathews, Extending Rights’ Reach: Constitutions, Private Law, and Judicial Power (2018).

5 Compare, e.g., NicoKrisch, Beyond Constitutionalism: The Pluralist Structure of Postnational Law (2010) with Alec Stone Sweet, The Structure of Constitutional Pluralism, 11 I-Con 491 (2013).

6 Neil MacCormick, Institutions of Law: An Essay in Legal Theory 11 (2007).

7 H.L.A. Hart, The Concept of Law 79 (1961).

8 H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 Harv. L. Rev. 593, 607 (1958). Hart famously conjures a rule that forbids taking vehicles into the public park and invokes some difficult cases (bicycle, roller skates, toy car) to illustrate his distinction between core of a legal rule and the surrounding penumbra of uncertainty.

9 MacCormick, supra note 6, at 13.

10 Id. at 57, 57–58.

11 Alec Stone Sweet & Clare Ryan, A Cosmopolitan Legal Order 82–83 (2018). Stone Sweet and Ryan write specifically about rights protection regimes, but the distinction is useful for thinking about pluralism in legal systems more generally.

12 Id. at 83.

13 Neil MacCormick, Beyond the Sovereign State, 56 Mod. L. Rev. 1 (1993).

14 While this is the first case in which the GFCC has taken upon itself to hear challenges based on European fundamental rights, the phenomenon of national courts in Europe ruling on questions of European law is itself nothing new. See, e.g., Krisch, supra note 5, at 292.

15 See Alec Stone Sweet and Jud Mathews, Proportionality Balancing and Global Constitutionalism: A Global and Comparative Approach (2019). The canonical proportionality analysis asks whether a measure alleged to violate a fundamental right: (1) serves a proper purpose, (2) is a suitable means of achieving the purpose, and (3) infringes on a fundamental protected no more than alternative measures that serve the same purpose equally well. If the challenged measure passes all of these tests, the court proceeds to ask whether it is proportional in the strict sense: that is, whether the measure’s benefit to the common good outweigh the harm it imposes on the right.

16 See Walther Michl, In Vielfalt geeinte Grundrechte, VerfassungsBlog (Nov. 27, 2019), https://verfassungsblog.de/in-vielfalt-geeinte-grundrechte/.

* Professor of Law, Penn State Law.

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Some Kind of Right

  • Jud Mathews

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