Den Baum vor lauter Wald nicht sehen – oder umgekehrt?
Das Amtsgericht Flensburg hatte jüngst über die Strafbarkeit eines Klimaaktivisten zu entscheiden, der ein fremdes Grundstück unbefugt betreten hatte, um dort die Rodung eines kleinen Waldstücks zu verhindern. Der Aktivist wurde vom Vorwurf des Hausfriedensbruchs freigesprochen, weil seine Tat dem Klimaschutz gedient habe und damit wegen Notstands (§ 34 StGB) gerechtfertigt sei. Dieser Beitrag wirft einen Blick auf die rechtliche Diskussion um Klimaproteste und um die diesbezüglichen Urteile und wirft dabei zwei Fragen auf: Sollten kleine Beiträge zum Klimaschutz als solche rechtlich anerkannt werden oder nicht? Und: Sind unkonventionelle Klima-Urteile illegitimer ‚richterlicher Aktivismus‘ oder ein Beitrag zur Rechtskultur? Bei beiden Fragen geht es um das Verhältnis vom Kleinen (Protestaktion, Urteil) zum Großen (Klimaschutz, Rechtskultur) und damit letztlich um das Verhältnis zwischen Baum und Wald.
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Not Just an Enhanced Opinion Poll
The UK Supreme Court judgment provides a robust protection of reserved matters under the Scotland Act, despite its shortcomings. This will likely end the legal manoeuvring of the Scottish government towards a second referendum. Instead, the political process is back in the driving seat (as it needs to be) and it now appears more likely than ever that the SNP will contest the next general election on an entirely Scottish independence-based platform. The future of the Union and the UK Parliament remains legally and politically precarious.
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Lessons from the United Kingdom’s „Enemies of the People“ case
It is difficult to deny evidence of a potential backlash against the judiciary in the UK. Both Miller decisions sent shockwaves through the United Kingdom. This is despite both decisions having the effect of protecting the powers of Parliament rather than the courts, and both having a marginal, if any, impact on the ability of the UK government to achieve its desired Brexit outcome. It is hard to forget the ‘Enemies of the People’ headline following the first Miller decision.
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The Legality of Evil
Lex iniusta non est lex – an unjust law is not a law. This centuries-old legal maxim lies at the heart of Balázs Majtényi's recent Verfassungsblog entry. Majtényi relies on it to challenge the Hungarian legal system. This essay is, however, not concerned with the accuracy of this description, but the utility of Radbruch’s formula when faced with legal systems we deem evil. Here, my answer differs radically from Majtényi’s.
Continue reading >>A New European Political Community: The British Perspective
The upcoming State of the Union address scheduled for 14 September and the succession of Liz Truss as UK Prime Minister looks set to be a potential turning point in EU relations. But will the EU grasp it? Could a new intergovernmental political forum – acting alongside EU enlargement – ease the tension of EU treaty change? Such a forum might bridge the potential role prospective EU member states in Eastern Europe could play before formally joining and the necessity of forging a constructive post-Brexit relationship with the UK. It could resolve political and constitutional concerns.
Continue reading >>Compute and Antitrust
Compute or computing power refers to a software and hardware stack, such as in a data centre or computer, engineered for AI-specific applications. We argue that the antitrust and regulatory literature to date has failed to pay sufficient attention to compute, despite compute being a key input to AI progress and services, the potentially substantial market power of companies in the supply chain, and the advantages of compute as a ‘unit’ of regulation in terms of detection and remedies.
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Effective Enforceability of EU Competition Law Under Different AI Development Scenarios
This post examines whether competition law can remain effective in prospective AI development scenarios by looking at six variables for AI development: capability of AI systems, speed of development, key inputs, technical architectures, number of actors, and the nature and relationship of these actors. For each of these, we analyse how different scenarios could impact effective enforceability. In some of these scenarios, EU competition law would remain a strong lever of control; in others it could be significantly weakened. We argue that despite challenges to regulators' ability to detect and remedy breaches, in many future scenarios the effective enforceability of EU competition law remains strong.
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Paths Untaken
If the development of certain technologies, such as advanced, unaligned AI, would be as dangerous as some have suggested, a long-termist legal perspective might advocate a strategy of technological delay—or even restraint—to avoid a default outcome of catastrophe. To many, restraint–a decision to withhold indefinitely from the development, or at least deployment, of the technology–might look implausible. However, history offers a surprising array of cases where strategically promising technologies were delayed, abandoned, or left unbuilt, even though many at the time perceived their development as inevitable.
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Why ‘Partygate’ May Be the Beginning of the End
On 12 April, the UK Prime Minister, Boris Johnson, and Chancellor, Rishi Sunak, received fixed-penalty notices for breaching Covid regulations, regarding their attendance at a surprise birthday party for the Prime Minister in the Cabinet Room in 10 Downing Street on 19 June 2020. Both paid the fine. Both apologised. Neither resigned.
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Regulating Recommending: Legal and Policy Directions for Governing Platforms
Digital platforms have strategically positioned themselves as intermediaries between individuals, businesses, organisations, governments, and others. Platform companies frequently adopt business models based around extensively tracking user behaviour and using that information to supply targeted advertising, algorithmically personalise services, and grow user engagement, revenue, and market position. While platform capitalism can be immensely profitable, the problems this brings are increasingly stark. As we have argued elsewhere, it’s time to regulate recommending.
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Plaumann and the Rule of Law
Most recently, the CJEU sanctioned Poland with daily penalty payments for failing to suspend the operation of its Supreme Court’s disciplinary chamber. The disciplinary chamber’s interference with the independence of judges can have a profound impact on the preliminary reference mechanism as a means for individuals to seek the review of EU law. This must be addressed to safeguard the right to an effective legal remedy under Article 47 CFREU. One possible response may be to modify the Plaumann-test insofar as necessary to protect the functioning of the EU’s ‘complete system of legal remedies’.
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