Many constitutional courts use balancing in constitutional right adjudication. However, critics argue that balancing is an (self-)empowerment of the courts and a tool of judicial activism. It is claimed that constitutional courts are increasingly using this technique when ruling against the legislature, for example when striking down laws. This study empirically examines the status of balancing in the case law of the German Federal Constitutional Court. It demonstrates that text-as-data methods can be used to analyze judicial reasoning by using word embeddings to measure the use of balancing language. It is shown that the use of balancing language increased during the first fifty years of the court’s existence. Since then, there has been a decline. The court also tends not to use more balancing language in decisions overturning laws. This evidence challenges the critique’s assumption that balancing is a tool of judicial activism.

The development of brain-reading technologies has raised expectations that it will finally be possible to detect lies. However, the existence of these new technologies has also raised fears that the authorities might use them to read people’s minds without their consent and obtain evidence that could be used against them in criminal proceedings, a scenario that raises questions about possible violations of the right against self-incrimination. The aim of this Article is to analyze whether the obtaining of incriminating information through the non-consensual use of brain-reading technologies can violate the right against self-incrimination under its traditional interpretation, according to which the scope of application of this right includes only “testimonial evidence,” thus excluding “real or physical evidence.”

The twenty-first century has witnessed the global resurgence of constituent power—the power to make a constitution—in both academic debate and the practice of constitutional adjudication and design. Comparative constitutional law scholarship on this power has largely focused on democratic settings. Little academic attention has been paid to the constiuent power in socialist regimes. To fill in this gap, this Article explores the design and practice of the constituent power in both former and current socialist regimes. It identifies three paradigms of the socialist constituent power. In the revolutionary paradigm, the power is used at the founding moment after a communist revolution to establish the legal foundation for a socialist state. In the Soviet, post-revolutionary paradigm, constitutent power is a power of the ordinary legislature used for the replacement of an existing by another socialist constitution. In the contemporary reformist paradigm, the socialist constituent power is still vested in an ordinary legislature but its design and practice integrate ideals and practices of democratic constituent power, including public engagement in constitutional reforms, as the consequence of the people’s struggle for their constituent power and the global diffusion of the idea of the popular constituent power. The reformist paradigm is illustrated by a case-study of Vietnam, using original resources. This study has implications for understanding the Soviet legacies and contemporary dynamics of constituent power in the socialist regimes, and for the comparative study of constituent power.

This Article offers a first comparative analysis of the evolution of U.S. corporate personhood doctrine and the “freedom to conduct a business” under Article 16 of the EU Charter of Fundamental Rights. It argues that, over the past fifty years, the Supreme Court of the United States (SCOTUS) and the Court of Justice of the European Union (CJEU) have both contributed to the rise of neoliberalism by using these legal doctrines to shield market mechanisms from democratic intervention. While SCOTUS has expanded and deepened corporate personhood, granting new and more powerful protections under free speech and religious freedom to corporations, the CJEU has similarly interpreted the “freedom to conduct a business” to weaken labor protections and different market regulations. This unexpected convergence contrasts with the CJEU’s ostensibly social mission and underscores the dangers of an uncritical expansion of Article 16. But despite this shared goal, this Article highlights the divergence in the approaches of SCOTUS and the CJEU through insights from comparative political economy. Differences in legal mobilization, the role of courts in political disputes, and the political economy of industrial relations have shaped each doctrine’s development. These findings are useful for legal reformers developing different strategies to curb corporate power in both jurisdictions.

The right to rehabilitation for prisoners is a fundamental human right recognized under international standards, imposing a positive obligation on states to ensure its fulfilment. This Article undertakes an in-depth examination of prisoners’ rehabilitation through both micro and macro lenses, examining individual experiences alongside broader societal impacts. Drawing on insights from scholars like Edgardo Rotman and Amanda Ploch, contrasting rehabilitation models are explored, highlighting tensions between institutional discipline and individual empowerment. At the macro level, rehabilitation addresses socio-economic inequalities and collective benefits, yet may overlook individual dignity from a human rights perspective. In contrast, Rotman’s humanistic model emphasizes personal insight, dialogue, and prisoners’ intrinsic rights at the micro level, fostering empowerment and a sense of responsibility. A dual perspective—from macro policy indicators to micro-level prisoner experiences—is crucial for a nuanced evaluation of rehabilitation efficacy. This exploration underscores the need for effective execution and resource allocation to uphold principles of human dignity and ensure the right to rehabilitation becomes a tangible reality for every individual within the criminal justice system.

It has become fashionable to attack the international investment system, even for former advocates such as the United States Trade Representative. This Article demonstrates a way forward of how the system may be saved—but not the way its proponents propagate. Because of the uncertainty of an economic justification, a rule of law legitimation is mostly advanced in defense of the international investment system. However, in an investment context, even the rule of law can be too much of a good thing, namely when in conflict with democracy. The Article elaborates how best to reconcile investment protection, rule of law, and democratic government, and concludes that only a thin understanding of the rule of law is acceptable on the international plane from the vantage point of democratic theory. Following from this, the Article advocates for a re-calibration of the standard of review and identifies proportionality testing as the setting screw of choice.

This Article advocates for conceptualizing law as a design science, with a comprehensive approach that integrates formal, explanatory, and design dimensions of legal knowledge. By embracing the empirical aspects of legal scholarship, this perspective challenges the traditional image of lawyers as solely reliant on linguistic constructs. Instead, it positions them as social engineers capable of shaping legal norms and interpretations in alignment with societal needs. Through analysis and illustration of its application in diverse factual contexts, the Article underscores the necessity for this evolution in contemporary legal scholarship, particularly as teleological interpretation gains prominence in legal practice.

Given its role as a legal instrument not only to try superiors but also to prevent both them and their subordinates from committing grave international crimes, the correct understanding and proper application of the doctrine of superior responsibility is of paramount importance. This article aims to illuminate specific and some controversial aspects of the third element of the doctrine—the failure to adopt necessary and reasonable measures—and obtain a clearer and more comprehensive understanding on the superiors’ duties, its limits and main prerequisites under the doctrine. For this purpose, an interdisciplinary study was conducted to investigate whether basic principles and business aspects of corporate governance and compliance management may be applied for a better understanding and refinement of the doctrine. The underlying analysis in corporate governance and compliance covers American (U.S.), German, and international standards.

This Article argues that to protect public debate, which is vital for democratic societies, it is crucial for courts in EU Member States to apply the freedom of expression standards established by the European Court of Human Rights (ECtHR) when adjudicating cases, particularly in the context of Strategic Lawsuits Against Public Participation (SLAPPs). The Article examines whether the obligation to protect the freedom of expression extends to the non-enforcement of judgments that could have a chilling effect on public debate, and explores the legal implications within the framework of the EU’s mutual recognition regime. By analyzing the Real Madrid v. Le Monde case, the Article highlights the importance of safeguarding free speech and public debate, praising the European Court of Justice (ECJ) for providing clear guidance on when non-enforcement is necessary to prevent the suppression of the public debate. The Article concludes by emphasizing the evolving role of the ECJ in balancing mutual trust among Member States with the protection of fundamental rights, especially in light of the EU’s ongoing integration and its potential accession to the ECtHR.