Continuity in the Federal Constitutional Court?

Abstract | The election of new judges to the German Federal Constitutional Court has seen multiple delays in recent years. While we observe increasing debates among politicians when choosing candidates for the bench the public’s opinion with regard to nominees seems to play a minor role. We used a survey-experiment to assess how the German public evaluates traits of judicial nominees. In this post we apply our findings to characteristics of current nominees who may follow on Andreas Voßkuhle and Johannes Masing. The results suggest that all nominees have traits which make them adequate successors of the leaving judges. Moreover, to enhance the courts public standing decision-makers should highlight the judicial qualities of nominees rather than...

Governing through the Primacy of Science

Abstract | German politicians trust science's primacy to fight COVID-19. From a regulatory perspective, however, this proves problematic insofar as science operates under deficient and dynamic empirical data, thereby making its proposals subject to constant change. Whilst this can be dangerous for legal certainty, prudentially transferring science's methods to regulation can make it ...

The Forbidden Tree of Knowledge France restricts predictive analytics for judicial decisions

The problem with new methods and sources of knowledge is that these can bring forth facts that do not always please all those involved. But to prohibit the pursuit for knowledge and insight is rather absurd in a transparent state at the latest after the Age of Enlightenment. In France this seems to be seen differently. In fact, France has recently adopted a law reforming the judicial system. Article 33 of the law has caused an international controversy. It reads literally: "Les données d'identité des magistrats et des membres du greffe ne peuvent faire l'objet d'une réutilisation ayant pour objet ou pour effet d'évaluer, d'analyser, de comparer ou de...

The Hindsight Bias On the problem of ex ante knowledge in negligence assessment ex post

Abstract: Judging negligence correctly is notoriously difficult once a catastrophic result is known to the individual making the judgement. Due to a phenomenon called hindsight bias, the events leading up to a specific outcome seem significantly more self-evident in hindsight than they did moving forward in time. In a forensic setting, judges are expected by law to ponder foreseeability ex ante, even though the result is presented in the file. Not only are legal practitioners typically unaware of the hindsight bias; disappointingly, empirical research suggests that even warning them of it does little to circumvent its effects. The main article is only...

Why lab experiments are a powerful tool for legal scholarship

Many questions formulated by legal scholars address a causal relationship between the law and human behavior: What is the effect of “teaser rates” on credit card debt? Will delegation of decision-making diminish the “stickiness of default rules”? Does a key information document improve retail investors’ understanding of investment products? Behavioral law and economics can help answering these questions, as it provides predictions about people’s behavior in a legally relevant context. Its increasing use in policy-making and law calls for an understanding of how these predictions are formulated and tested. Laboratory experiments are an important empirical method employed to this end. Thus, it comes at no surprise that...

Related Party Transactions of Listed Companies in Germany

Common law jurisdictions pride themselves on having a keen sense of fiduciary relationships and the perils of self-dealing. While the UK’s influence on EU law may recede in the long run, it has left another lasting impression in the EU’s revised Shareholder Rights Directive that regulates corporate governance aspects of European listed companies. Besides encouraging stewardship by institutional investors and ensuring shareholders a „vote on pay“, the directive introduces a new set of provisions on the company’s dealings with related parties—parents, sibling entities, controlled and associated entities, and managers. The rules on related party transactions (RPTs) are evidently inspired by, and modelled on, Chapter 11 of the UK’s Listing...