Comparative Constitutional Law Academy – Wrap-up

March 19, 2013

Editors Note: A group of W&L Law students was  in Germany over spring break  for an intensive week-long exploration of German law and legal culture. The German Comparative Law Academy, organized by Prof. Russ Miller, brings together American and German law students for a scholarly exchange on both countries’ legal systems, with an emphasis on Constitutional Law. Our final post in the series is authored by Prof. Miller himself.

by Russell Miller

I couldn’t have been more proud of the really brave W&L students who undertook this challenging week of hard academic work, cultural immersion, and tourism.  The harsh winter conditions made all of this an even greater challenge!  In one week we read and discussed nearly 500 pages of material – beginning with a debate on comparative methodology and theory.  We then moved through two crash-courses in German and American free speech jurisprudence.  We ended the week with intensive exposure to the free speech decisions of the courts we were visiting, including the German Constitutional Court and the European Court of Human Rights.  On those occasions we had the chance to speak about those cases with judges and clerks of two of Europe’s most prestigious courts.  Besides all this work with primary law and relevant academic literature, we tried, in the short time we had, to link the distinct approaches to free speech that we found in Germany and the U.S. with the distinct textual, legal-infrastructural, and social frameworks in which they operate.  We saw, for example, that the German constitutional protection for free speech provides an exception for legislation that protects honor.  And we noted, for example, that the U.S. Supreme Court has greater discretion to pick the cases it decides.  In particular, our bitter-cold, heart-wrenching visit to the Buchenwald concentration camp helped illuminate Germany’s lack of tolerance for speech connected with the Nazi past.  We also saw, through our late-night screening of the film “The People v. Larry Flynt” how American’s more liberal free-speech jurisprudence is closely tied to deeper individualist trends in American society.

At the European Court of Human Rights

At the European Court of Human Rights

But that wasn’t all we achieved.  We developed and deepened friendships with our colleagues at the Brandt School of Public Policy who represented a half-dozen countries themselves.  Our conversations and seminar discussions toggled back-and-forth seamlessly between Brazil and Afghanistan and Mexico and Germany and Pakistan and the U.S.  The cultural awareness and intellectual flexibility this required revealed a prized set of skills amongst the W&L students.  Call it socially-sensitive intelligence.  I was always proud of the respectful – but not condescending – approach our students took towards these new colleagues and friends.

And we did some important cultural work as well.  A highlight for me – and I hope the students – was the magical concert we attended in Weimar’s new music hall on Monday night.  Besides some “hits” from Beethoven, we were mesmerized by the performance of the brilliant, young pianist Olga Scheps.  Sitting in the hall’s second row with $30 student tickets, we were in arms length of an emerging classical superstar whose languid, sensual style at the keyboard infused her performance with incredible emotion and grace – more ballet than a mere piano solo.  I hope the students suffered the same “irritation” as we moved that transcend evening, just a few hours and a few kilometers away to visit Buchenwald.  As our academic host Prof. Florian Hoffmann (Director of the Erfurt – Brandt School of Public Policy) said, this is the German dilemma.

It was a grand, grand tour.  We ate every scrap of chocolate we came across.  We learned new and exciting pronunciations for our names.  In our free-time, relaxing on trains and street cars or in cafes, we light-heartedly designed a new constitutional regime for a fictional land that – as best as I could tell – featured prominent and powerful positions for the students and a more subservient role for me.  We celebrated birthdays in and out of season.  And we only lost one student – for a few brief hours – on a training rushing through the Rhine valley towards the Black Forest.

I was thrilled at the W&L students seriousness, good-humor, deep insight, grace and warmth.  They were great ambassadors for the U.S. and W&L.  As we parted on Friday afternoon – each going our separate ways but with Lexington our ultimate destination – I couldn’t help feeling deep pangs of appreciation and admiration and affection for the group.  I only hope they learned as much from the experience as I learned from sharing it with them.

Comparative Constitutional Law Academy Day 6

March 18, 2013

Editors Note: A group of W&L Law students are currently  in Germany for an intensive week-long exploration of German law and legal culture. The German Comparative Law Academy, organized by Prof. Russ Miller, brings together American and German law students for a scholarly exchange on both countries’ legal systems, with an emphasis on Constitutional Law.

by Terence Schroeder

The final official day began with a rare glimpse of morning sunlight, with the dark wintry cloth that had been draped across Erfurt a memory of days past.  An early morning tram ride under clear skies and the bright sun carried the well-traveled group through the urbane streets of Strasbourg, Europe’s co-capital city paired with Belgium.  A brief musical accompaniment preceded each radio announcement of the next station.  Just before arriving at the last major stopping point of the trip, the massive glass façade of the European Parliament building appeared, a testament to the grand image of a united Europe that the European Union seeks to emanate.

The next stop for the tram was the European Court of Human Rights (ECtHR), the adjudicative body for the European Convention of Human Rights. Yet it seemed more like we were arriving at a James Bond set piece from the 1960s. The space-age-like architecture is meant to symbolize scales, yet with glass lifts and cylindrical meeting chambers the building seemed to emulate science fiction.

The Convention includes 47 members across Europe, from Spain to Russia, with the court composed of a single judge from each member state.  Judge Zupančič is the sitting judge from Slovenia.

After an introduction by Professor Miller’s friend, Eric, we heard from Judge Zupančič, the sitting judge from Slovenia.  The court includes a judge from each of the 47 member-states stretching across the continent from Spain and Britain to Russia and Turkey.  The judge spoke of strategic simplification (reducing complexity while achieving the same purpose), observing how law has not profited from science as well other human endeavors like medicine.  For Judge Zupančič, the challenge for European courts arises in the bureaucratic nature of European judicial systems. Rachel, who works in the research division, spoke of the comparative work performed by the court’s researchers, who search for consensus among member states on legal issues pending before the court.  However, while a finding of consensus may be determinative in some cases, it may prove otherwise in other cases as countries are afforded a “margin of appreciation” for certain distinct approaches in law.  Italy, for example, can maintain its requirement to have a crucifix on display in each classroom. Eric provided an overview of the court and it’s role, emphasizing subsidiarity as the ECtHR is a court of last resort.

Before Lunch, we also heard from Tim, a graduate of Yale Law School, currently participating in a one-year clerkship with the court.  He approached the delicate balance between the court’s margin of appreciation and enforcement of common rights with a game of hangman and a discussion of Switzerland’s ability to ban an advertisement for a religious sect focused on space aliens, among other things.

In our concluding session, the tension between skepticism and optimism for the “globalization of constitutional law” came forth with full force, eliciting avid arguments from either side.  Admittedly this writer remains in part skeptical, unwilling to fully accept the notion of Tushnet’s global bankers forging common standards across the world in their travels.  Yet it is the very discussions we were privileged to share with the Erfurt group that reflect focal points in a globalization process that is happening and appears beneficial in moving forward. Our discussions were in large part a sharing of ideas, a recognition of a key place for differences amidst the commonalities we seek to establish through regional and international institutions. Constitutional law need not be what one country or one set of countries seeks to impose on the world system abroad, yet a combination of shared understandings in law and legal practice. We sought to understand our differences as the way toward bridging our systems and our ideas on Constitutions. For there are portions we will share, and there will be portions that will remain separate, as constitutions represent the fashioning of a particular political and social identity. The comparative project perhaps lies in the pursuit of understanding for our similarities and differences, to discover the context in which they subsist, in order to build upon our own distinct approaches and manage certain collective efforts.

Then came time for the concluding remarks from our principal guide in this excursion.  Unlike the previous night, Professor Miller avoided another surprise birthday announcement and expressed heartfelt gratitude for the group’s discussions and contributions through week.  The week served both as a moment of critical academic experience and a step in a broader journey set to continue through the various threads woven together through the week’s adventures.

With only a short time left, we left for to see the city, meandering through the streets around the Cathedral and finding our way through its stunning interior.  Pictures seem quite inadequate to capture the sheer height of the medieval structure that towers over the city below.  A further walk led us to a mini-carnival and the obligatory stop for carnival food, including chocolate crepes.  Completing our whirlwind tour of international cuisines, our last dinner as an international group brought us to an Indian restaurant a few blocks from the grand Cathedral of Strasbourg for, among other things, lamb tikki masala, beef vindulu, chicken curry, and garlic na’an.  Speaking of curry, just remembered to look up a recipe for curry and cardamom cookies, which apparently exist. In light of our explorations in Karlsruhe we spent one last time together to experience the local scene and see a different side of the city at night.

Saturday morning our group finally parted, marking a long week as we learned from each other and shared memories.  After a week of intense travel from Frankfurt to Erfurt to Karlsruhe to Strasbourg, it was quite a surreal moment.

With beautiful weather the Americans, as we have come to be known throughout the trip, took the last key moments to experience the beauty of Strasbourg.  From a short jaunt on the city’s meandering trams, we passed through a flea market, explored le Petit France, and crossed the old rotating bridge. Amidst the many small shops, we spent one last meal as an American group in a small café-style restaurant and the experience of local cuisine, from quiche Lorraine to tarte flambés.

Now it is time to dust off and prepare for the journey home.  And if you have made it this far, perhaps you will agree that I should consider some “strategic simplification” in my writing as well.

Comparative Constitutional Law Academy Day 5

March 15, 2013

Editors Note: A group of W&L Law students are currently  in Germany for an intensive week-long exploration of German law and legal culture. The German Comparative Law Academy, organized by Prof. Russ Miller, brings together American and German law students for a scholarly exchange on both countries’ legal systems, with an emphasis on Constitutional Law.

by Erin Seavoy

Bonjour!  This is our first post from Strasbourg, France!!  We began our morning in Karlsruhe, Germany.  We woke up, put on our finest in business attire and set out to the German Constitutional Court.  Two of the Court’s research assistants met us at the front of the court and took us into the temporary court room (the true court house is under construction).  There they explained a little bit about the workings of the court.  As Americans we were surprised to learn that in Germany the research assistants (aka clerks) of the Constitutional court are judges in their own right.  They take a few years off to come and work for a justice and then return to their positions on the bench.


Then we experienced one of the highlights of the trip.  We met with Professor Dr. Susanne Baer, a Justice of the Federal Constitutional Court.  And this was no, stop by say hi and take a picture type of visit.  She sat down with us, she chatted with us, and she encouraged us to ask questions.  It was an amazing opportunity and experience.  She is an inspiring woman and I am sure we would all agree that we feel privileged that she took the time out of her schedule.  (Just in case she ever reads this blog: “Thank you once again!”)

After the court we went for more amazing German food and had lively conversation.  Pellitier wowed us with his ability to eat more than should be humanly possible and we debated the creation of our own country.  Some of the country discussion was serious (debating a constitution and separation of powers) some not so much (the decision that the drafting of the constitution should take place on the beach and involve mojitos).  Either way we had a great lunch which ended with a slightly more formal discussion of the European Court of Human Rights.

After lunch the students and Professor Miller headed back to the center of Karlsruhe.  We took a winding walk through a park and saw the sun for the first time in days.  We came out at a palace and Professor Miller showed us the official Constitutional Court building, which is currently under construction.  We then walked through the palace gardens and found people playing human chess (and yes we made Harry Potter references…).  We then headed into the city and a few of the students found a café with Professor Miller.  We spent a wonderful hour chatting, eating delicious chocolate and joking around.

Afterwards it was back to the train station and off to France!

We arrived in France and realized that instead of having half of the students speaking the language, as was the case in Germany, only one of the Brandt students speaks French.  However, Professor Hoffmann still did a wonderful job guiding us to our hotel and then off to our first French meal!  The food was amazing and the conversation fun.  It is surprising and unexpected how quickly the Brandt students and the W&L students have bonded.  We now all have shared experiences and friendships that we will hopefully continue after the trip!

After dinner it was back to the hotel to sleep and prepare for another exciting day in Europe!

Comparative Constitutional Law Academy Day 4

March 14, 2013

Editors Note: A group of W&L Law students are currently  in Germany for an intensive week-long exploration of German law and legal culture. The German Comparative Law Academy, organized by Prof. Russ Miller, brings together American and German law students for a scholarly exchange on both countries’ legal systems, with an emphasis on Constitutional Law.

by Bret Reed

This morning Prof. Miller pushed the class to 10 am, fortunately, although after a late night at a wine/jazz bar and a Chemerinsky law review article assignment, we reluctantly stirred and poured into the conference room. Again, the Brandt school provided a pleasant spread of morning fare which we enjoyed as we wrestled with American free speech jurisprudence. This discussion was probably the best of the week, with most of the non-American students contributing and much more forthcoming as friendships had formed with us at this point. We had an exquisite foil in Germany’s approach (which we studied yesterday) and we mostly discussed the legal arguments presented in The People vs. Larry Flint. Opinions about the proper balancing of speech protection and the rights of others varied widely, and I was most surprised to mark that the Americans seemed to be the most willing to accept restraints on speech, within limited contexts.

After a constructive three hours we broke for lunch at a Vietnamese restaurant and said our goodbyes to the Brandt students who weren’t coming with us to the German High Court. I was surprised how meaningful our relationships had become after only three days, but I suppose we all came prepared to get down to business and share our worldviews and experiences. We gathered up and checked-out out of the dorms, rode to Erfurt’s train station, and then continued on to Frankfurt and then Karlsruhe (the seat of Germany’s Federal Constitutional Court), compliments of the program. Prof. Miller promptly bailed with a buddy after about 20 seconds on the landing, but Prof. Hoffman was a trooper and led us to a nearby hostel and purchased us rooms, again on the program’s tab. I’m continually impressed with how the Brandt students/administrators attend to our needs, certainly more than they have to. Those who didn’t have to write blog entries jaunted off to an Irish pub and had a great time, but we were all back relatively early with a serious demeanors as we prepared to meet what is essentially a Supreme Court justice tomorrow. I know the Romance countries are the first to come to mind when discussing enriching Euro trips, but Erfurt is just enchanting if quaint Medieval is your thing, and two hour political and philosophical conversations with sharp individuals from the world’s four corners is beyond the pale insightful.

Comparative Constitutional Law Academy Day 3

March 14, 2013

Editors Note: A group of W&L Law students are currently  in Germany for an intensive week-long exploration of German law and legal culture. The German Comparative Law Academy, organized by Prof. Russ Miller, brings together American and German law students for a scholarly exchange on both countries’ legal systems, with an emphasis on Constitutional Law.

by Brittany Rainey

Greetings from Erfurt, Germany! Today was another great action-packed day for the W&L students. We started off our day with an early morning class at 8:30am. Students all stumbled in tired and blurry eyed but (mostly) ready to get started. Our generous German friends provided us with another great breakfast spread that thankfully included coffee and sweets. Today’s discussion focused on free speech in Germany and the diverse background of the students made for a lively discussion. Unfortunately our classroom time was cut short by the weather. It has been snowing in Germany since we arrived!  Around 11am the W&L and Brandt students traveled to Weimar to tour Buchenwald. It was an extremely moving experience for everyone.


Back in Erfurt we took a beautiful walk through the snow and our wonderful tour guides took us to try some Sudanese food. After lunch we found ourselves with a little bit of free time –something we had yet to experience on this trip! We all spent the next hour or so on our own catching up on reading, sleeping, and shopping.

We reconvened at the Brandt school at 7pm for a showing of The People vs. Larry Flint. The film was excellent and we got to watch it while eating pizza and other snacks and drinking German beer. In addition to its entertainment value, the film also gave the German students a brief look into free speech in the United States –an issues that we will be tackling at the very reasonable time of 10am tomorrow. Thankfully Professor Miller has decided to let us sleep in! After the movie ended the Brandt students took a number of us out to experience a German bar. We stayed out late drinking delicious German beer and wine and having great discussions. Professor Miller will be happy to hear that there was even some law discussed. Eventually we took the tram back to our rooms and got started on tomorrow’s reading assignment (hopefully).

Comparative Constitutional Law Academy Day 2

March 12, 2013

Editors Note: A group of W&L Law students are currently  in Germany for an intensive week-long exploration of German law and legal culture. The German Comparative Law Academy, organized by Prof. Russ Miller, brings together American and German law students for a scholarly exchange on both countries’ legal systems, with an emphasis on Constitutional Law.

by David Pelletier

Class began today at a reasonable 1000 as we all seem to have recovered from the long flights and getting settled in.  Our hosts provided a gracious spread of German delicacies for us to enjoy as we engaged in our academic endeavor.  We are being hosted by the Willy Brandt School of Public Policy here at the University of Erfurt.  The international contingent of students covered the globe with participants from Germany, Brazil, Sudan, India, and Pakistan to name a few.  The material today served to orientate us for the discussions that lay ahead.  We engaged in learning the vocabulary of, and discussing the potential purposes behind, comparative constitutional law.

Academics behind us we broke for lunch at the University Cafeteria and then took to the city for a walking tour.  Led by one of our hosts here at the University we walked a small portion of a city first mentioned in 742.  The University itself was founded in 1392 and able to claim Martin Luther of Protestant Reformation fame as a student in the early 1500s.  Although Professor Miller was struggling from the cold we pressed on during the tour getting to see many of the plazas that once served as markets and the unique homes that were built on a bridge to avoid taxes (apparently the off-shore concept is not a new one.)  Having walked through a little of the old city we called the tour to an end to grab some hot chocolate and allow Professor Miller to thaw out.

Out an about in Erfurt

Out and about in Erfurt

The evening was spent in the nearby city of Weimar after a quick train ride through the country side.  Sensitive to Professor Miller’s inability to handle the somewhat frigid temperature our walk through the town was brief before settling in to a German restaurant connected to a theater called Shakespeare’s.  Here I ordered a specialty of the State of Thuringia, the bratwursts, which is definitely a must try should you ever find yourself in the area.  The meal was paired with lively conversation of German politics and comparisons to our more familiar American system.  We were joined by an American Expat who attended the Brandt school and is now a member of the staff there.  She and Professor Miller were able to provide a rather in depth analysis as to some of the cultural differences and how they manifest themselves not only in politics and law, but also every day interactions.

After dinner we moved on to the cultural event of the evening.  Although we had some difficulty finding the venue we were able to find our seats (in the second row) before the orchestra took the stage.  We were treated by multiple pieces by Beethoven and Tchaikovsky.  We had the additional pleasure of experiencing the talents of Olga Scheps, a young German-Russian pianist who in 2010 earned the ECHO Klassik Award as Newcomer of the Year.  (Trust me, this is impressive.)  She accompanied the orchestra as well as performing two solo pieces as an encore.

The amazing experience at the concert was quickly tempered by the realization that we had 15 minutes to get to the station or it was an hour wait for the next train.  We pressed Professor Miller to his physical limits, but we were able to get to the station in time to catch our train just before it pulled away.  As this day settles behind us and it closes in on 1130 and with tomorrow beginning at a less reasonable 0830, it is time for some reading review and preparations for tomorrow.

Welcome to Erfurt: Friendly People in a Wintery Wonderland

March 12, 2013

Editors Note: A group of W&L Law students are currently  in Germany for an intensive week-long exploration of German law and legal culture. The German Comparative Law Academy, organized by Prof. Russ Miller, brings together American and German law students for a scholarly exchange on both countries’ legal systems, with an emphasis on Constitutional Law. Below is the first in a series of posts authored by W&L students about their experiences in Germany.

by Teressa Campbell

Day one of the Constitutional Law Academy was off to a great start. Despite all arriving from different parts of the United States, most of the group managed to congregate at Frankfurt Airport Station without a hitch. We would all now travel by train to the charming mid-sized East German city of Erfurt. After periodic naps and two and half hours of traveling through the German countryside we arrived safely in a cold grey Erfurt.

At the local train station, we were met by our German host Professor Hoffmann and two of his American students, who took us by tram on a fifteen minute journey to the University of Erfurt’s campus, which is situated just outside the city center. The students were kind enough to help us settle in to life at the University and engaged us in an interesting discussion of the differences between life in Erfurt and life in the United States.

With room keys exchanged, beds made and internet access up and running, we were left to our own devices for a few hours. By dinnertime everyone had arrived safely in Erfurt and we were guided into what had become a very snowy city. We ventured via tram to a local restaurant for a commencement dinner, which was a special treat organized by Professor Hoffmann. Robust conversation about everything from the law to why we chose to attend law school and where the best clubs were, was followed by a few rounds of local beer and delicious meals comprising of traditional German dishes. Our appetites satisfied and the lingering start of “classes” in a few short hours meant the group soon dispersed.

Opening Dinner in Erfort, Germany

Opening Dinner in Erfort, Germany

Our journey back to the university dorms was led by a University of Erfurt International student from Brazil who treated us to an informal walk around tour and brief history of the Erfurt city center. Her passion for and admiration of the city was clear and helped us appreciate the town from a local’s point of view. The city’s long history and architecture are fascinating. The blanket of snow now covering the town and the moonlight both served to make the tour all just a tad bit magical.

Following another short tram ride, we made it back to our dorms and ascended the numerous flights of stairs to our respective rooms. Everyone was cold, jet-lagged and bleary eyed but nonetheless excited to experience all that would unfold in the following week.