Volume 5, Issue 2

Pathways to Corporate Convergence? Two Steps on the Road to Shareholder Capitalism in Germany

5 Colum. J. Eur. L. 219 (1999) Jeffrey N. Gordon. Alfred W. Bressler Professor of Law, Columbia University Law School. One of the most interesting current debates in corporate law is whether worldwide corporate governance will ultimately converge on a single model in light of the increasing globalization of capital markets, and if so, whether it will be an Anglo-American model whose features are shaped by the shareholder primacy norm. Convergence skeptics have focused on the embeddedness of governance systems in national political structures that tend to protect both entrenched insider interests and non-shareholder constituencies against the incursions of Anglo-American […]

Convergence and Diversity in Private and Public Law

5 Colum. J. Eur. L. 181 (1999) Gerald L Neuman.  Mark J. Roe. INTRODUCTION TO THE SYMPOSIUM At the end of the Twentieth Century, Germany and the United States represent two of the most powerful economies in the world and two of the most influential constitutional systems. The economies are linked in the dynamics of international trade, and the constitutions share in a wider culture of Western constitutional thought. Their solutions to common problems, however, sometimes differ, justifying inquiry into the causes of those divergences and the prospects for their continuation. Two important examples of current divergence may be found […]

Path Dependence and German Corporate Law: Some Skeptical Remarks From the Sideline

5 Colum. J. Eur. L. 189 (1999) Helmut Kohl. Professor, Johann Wolfgang Goethe-Universitait, Frankfurt am Main, since 1979; Professor, University of Hamburg, 1975-79; Dr. Jur. University of Konstanz, 1973. For many decades, if not centuries, jurists and others have wondered why some legal rules and institutions which might have been beneficial in the past survived even though they now seem useless, cumbersome or downright detrimental, and why some rules which for a long time were almost forgotten, suddenly are revitalized. Some cases are obvious. If a medieval law is still on the books entitling the hangman to a five shilling […]

German Codetermination and German Securities Markets

5 Colum. J. Eur. L. 199 (1999) Mark J. Roe. Professor of Law, Columbia Law School. Germany lacks good securities markets. Initial public offerings are infrequent, securities trading is shallow, and even large public firms typically have big blockholders that make the large firms resemble “semi-private” companies. These “private” firm characteristics of German ownership are often attributed to poor legal protection of minority stockholders, the lack of an equity owning culture, the lack of an entrepreneurial culture (one that would create many new businesses and IPOs), and permissive rules that allowed big banks and bank blockholding to develop and dominate […]

Comment: On Mark Roe, German Codetermination and German Securities Markets

5 Colum. J. Eur. L. 213 (1999) Friedrich Kübler. Professor of Law Emeritus, Johann Wolfgang Goethe-Universitit Frankfurt am Main, Professor of Law, University of Pennsylvania, Philadelphia. It is certainly a pleasure to be invited to give a comment to Professor Roe’s fascinating paper on codetermination and securities markets in Germany. At the same time this task proves to be a somewhat painful experience. In spite of many defects in the regulatory details of the system, I have always been very much in favor of the basic idea of codetermination for both historical and personal reasons. Historically, when viewed against the […]

Equality: The Jurisprudence of the German Constitutional Court

5 Colum. J. Eur. L. 249 (1999) Susanne Baer. Assistant Professor, Public Law Division, School of Law, Humboldt University, Berlin, Germany. There is no such thing as the right to equality. Every constitutional order formed its equality provision based on its specific development: equality bears the imprint of the political, social and legal ambiance of a distinct state. INTRODUCTION Every constitution and human rights treaty contains a clause which provides for equality. Although the formulae may vary, the central issues do not. This does not, however, make the task of assessing the current equality jurisprudence in Germany any easier. Almost […]

The Development of Corporate Governance in Germany-Some Annotations to Jeffrey Gordon

5 Colum. J. Eur. L. 243 (1999) Christina Escher-Weingart. Assistant Law Teacher, Johann Wolfgang Goethe-Universitit, Frankfurt am Main, Germany. SOME REASONS FOR THE PREVAILING OF STAKEHOLDER CAPITALISM As stated in Jeffrey Gordon’s article, “Pathways to Corporate Governance? Two Steps on the Road to Shareholder Capitalism in Germany,” the global stock offering by Deutsche Telekom AG did not succeed considerably in promoting a shareholder culture in Germany. In addition to all the aspects related to the capital market which Gordon has broken down in great detail, he is absolutely correct in stressing one core fact which, although unpopular, is of fundamental […]

Equal Protection, “General Equality” and Economic Discrimination From a U.S. Perspective

5 Colum. J. Eur. L. 281 (1999) Gerald L. Neuman. Herbert Wechsler Professor of Federal Jurisprudence, Columbia Law School. The evolution of a country’s constitutional law reflects both the particular historical experiences of the country and general trends of intellectual history shared among countries. The United States inherited its human rights tradition from Europe. Although much of its development has been self-referential, implicit reliance on broader intellectual trends and even explicit invocation of European thinkers and European legal developments have also contributed. Meanwhile, U.S. constitutionalism has been influential in other countries, and received special attention-which does not mean unquestioning imitation-in […]

Constitutional Constraints on Redistribution Through Class Power

5 Colum. J. Eur. L. 313 (1999) Mark Barenberg. Professor of Law, Columbia Law School. My comments will not be so much a critique as an elaboration of the two papers, especially Professor Neuman’s paper on United States (U.S.) law, since I am not an expert on German constitutional law. For those less familiar with U.S. law, my goal is to bring to light some additional elements of the U.S. constitutional tradition that impede the use of law to achieve economic equality-elements of U.S. constitutional law that reinforce the weak “general equality” principle of the Equal Protection Clause. I will […]

Gender Equality and Affirmative Action Under the Law of the European Union

5 Colum. J. Eur. L. 319 (1999) Manfred Zuleeg. Jean Monnet Professor, Johann Wolfgang Goethe-Universitift, Frankfurt am Main. Former Judge at the Court of Justice of the European Communities. I. THE JUDGMENTS OF THE EUROPEAN COURT OF JUSTICE ON AFFIRMATIVE ACTION A. The Impact of the Judgments of the European Court of Justice on German Constitutional Law The judgments of the European Court of Justice (ECJ), in Kalanke1 and Marschall are landmarks in the development of gender equality in the European Community (EC). These two judgments, rendered in 1995 and 1997, respectively, examine affirmative action in one Member State, the […]

The Political Economy of Recognition: Affirmative Action Discourse and Constitutional Equality in Germany and the U.S.A.

5 Colum. J. Eur. L. 329 (1999) Kendall Thomas. Professor, Columbia University Law School. This paper undertakes a comparative exploration of affirmative action discourse in German and American constitutional equality law. The first task for such a project is to acknowledge an important threshold dilemma. The difficulty in question derives not so much from dissimilarities between the technical legal structures of German and American affirmative action policy. The problem stems rather from the different social grounds and groupings on which those legal structures have been erected. Because German “positive action” applies only to women, gender and its cultural meanings have […]