Daily Archives: May 1, 1996

Regulatory Federalism: A Reprise and Introduction

2 Colum. J. Eur. L. 395 (1996) George A. Bermann. Charles Keller Beekmnan Professor of Law, Columbia University School of Law. This colloquium, like its predecessor, proceeds on the basis of a series of assumptions. First, it assumes that the federalism dimension of the regulatory state is an important one (just as is the regulatory dimension of the federal state). In introducing our first colloquium, I suggested that, although determining the content of public policy is critical in a democratic society, also critical is determining the level of government at which the choice of policy is made. Ingolf Pernice remarked […]

The Framework Revisited: Constitutional, Federal and Subsidiarity Issues

2 Colum. J. Eur. L. 403 (1996) Ingolf Pernice. Professor of Law, Humboldt-Universität, Berlin; formerly Professor of Law, Johann Wolfgang Goethe-Universität, Frankfurt; Dr. iur. Augsburg. At an international symposium in 1993 on the future of Europe, Thomas C. Fischer opened his report on comparative federalism with a reference to his favorite cartoon about the EC: a hydra monster with twelve heads, each biting the other. In my view, there are actually fifteen heads biting the very body of the monster, pretending, however, to be strengthening it, bite by bite. Since March 29, 1996, the Intergovernmental Conference of the European Union […]

Social Policy in the European Community Between Competition, Solidarity and Harmonization: Still on the Way From a Free Trade Area to a Federal System

2 Colum. J. Eur. L. 421 (1996) Ingwer Ebsen. Professor of Public Law and Social Security Law, Johann Wolfgang Goethe-Universität, Frankfurt; Dr. iur. Mainz. I. THE FIELD OF “SOCIAL POLICY” IN THE EUROPEAN CONTEXT “Social policy” is a fairly vague term which may be associated with a range of substantive domains. In the context of the European Union, “social policy” must be understood in light of the legal traditions of the fifteen Member States, as well as in terms of the EC Treaty and secondary EC law, particularly Commission regulations and directives. For the most part, we can safely say […]

Federalism and U.S. Social Welfare Policy: Fundamental Change and New Uncertainties

2 Colum. J. Eur. L. 441 (1996) Anne L. Alstott.  Associate Professor, Columbia University School of Law. AUTHOR’s NOTE: This paper was written for the Frankfurt/Columbia symposium held in April 1996. In July 1996 the Congress enacted and in August 1996 the President signed major new welfare legislation. The new welfare law repeals the Aid to Families with Dependent Children (AFDC) program and replaces it with a new program of block grants to the states, called Temporary Assistance for Needy Families (TANF). The TANF program is similar, though not identical, to the block grant proposals described in Part Hl, and […]

Comment: U.S. Social Welfare Policy

2 Colum. J. Eur. L. 457 (1996) Lance Liebman. Dean (1991-96) and Professor of Law, Columbia University School of Law. Professor Alstott’s paper tells an important story about the current moment in American federalism as interpreted through the lens of the social welfare system.1 From its beginning in 1935, Aid to Families with Dependent Children (AFDC) was the most important intellectual ingredient in the American commitment (or not) to poor families. AFDC was called an exercise in “cooperative federalism.” States established and administered programs, receiving reimbursement for roughly fifty percent of their expenditures from the national government, which, however, imposed […]

U.S. Federalism and Intellectual Property

2 Colum. J. Eur. L. 463 (1996) Jane C. Ginsburg. Morton L. Janklow Professor of Literary and Artistic Property Law, Columbia University School of Law. @ 1997, Jane C. Ginsburg. The federal structure of the U.S. government presents interesting questions for intellectual property. Which government, national or state, exercises regulatory authority? Or do both governments play a significant role? Questions of this order cannot be addressed unless one first analyzes what the term “intellectual property” comprehends. Intellectual property includes well-recognized regimes of exclusive rights in inventions (patents), literary, artistic and musical creations (copyrights), and trademarks. But it also covers more […]

Harmonization and Intellectual Property in Europe

2 Colum. J. Eur. L. 481 (1996) Ulrich Loewenheim. Professor of Law, Johann Wolfgang Goethe-Universität, Frankfurt; Dr. iur. Frankfurt. In any discussion of the “harmonization of laws in federal systems,” European intellectual property law unquestionably deserves inclusion. Intellectual property, as a rule, is not a regional but a national matter and, beyond that, an international concern. Consequently, the necessity of federal regulation at the national level is undoubted. This fact is recognized in Art. 73(9) of the German constitution which exclusively assigns legislative competence in this domain to the federal legislator, reflecting the need for a uniform law governing the […]

Comment: Of Contracts, Commerce, and Intellectual Property

2 Colum. J. Eur. L. 491 (1996) Alice Haemmerli. Dean of Graduate Studies and International Programs, Columbia University School of Law. In the course of her comments, Professor Ginsburg made a point about federalism and intellectual property that I would like to develop further: the determination whether state law has been preempted by federal law’ is often a difficult one. In addition, the political dimensions of U.S. federalism are as crucial as the legal ones, implying the need to justify federal intervention or preemption on the basis of the policy objectives of federal law. This comment will examine the intersection […]

Comment: Harmonization of Intellectual Property Laws in Federal Systems

2 Colum. J. Eur. L. 511 (1996) Helmut Kohl. Professor of Law, Johann Wolfgang Goethe-Universität, Frankfurt; Dr. iur. Konstanz. Professor Ulrich Loewenheim, one of the leading German experts in this field, reports that within our national system there is no conflict between the state and federal interests in regulating intellectual property. The situation is basically the same as the one we discussed in company law last year in Frankfurt. All relevant questions, even those concerning know-how or the right to publicity (which we in Europe would not include under today’s heading and which, as I learned from Professor Ginsburg’s report, […]

Harmonization and Public Finance in Germany and Europe

2 Colum. J. Eur. L. 519 (1996) Lerke Osterloh. Professor of Law, Johann Wolfgang Goethe-Universität, Frankfurt; Dr. iur. Hamburg. INTRODUCTION: SOME ASPECTS OF FEDERAL FISCAL CONSTITUTIONS The basic legal and structural questions of public finance are quite clear. What sorts of revenue, and how much, are needed by a state, and who must decide on them? The answers are also rather clear. The state should receive just those revenues required to accomplish its functions, while the main decisions in a democracy as to what those functions are, and how much revenue and spending are necessary, belong to parliament, subject perhaps […]

Public Finance in the American Federal System: Basic Patterns and Current Issues

2 Colum. J. Eur. L. 533 (1996) Richard Briffault. Professor of Law, Columbia University School of Law. Public finance issues with significant consequences for American federalism have been at the top of the political agenda for the last several years. Indeed, much of the current debate about American federalism has been explicitly about questions of public finance: Which level of government should pay for which programs? What is to be the relationship between financial responsibility and policy-making authority? Should there be some overall limitation on government outlays and receipts? Thus, one of the first actions of the 104th Congress was […]

Comment: Public Finance in Europe

2 Colum. J. Eur. L. 557 (1996) Stefan Kadelbach. Assistant (Privatdozent), Johann Wolfgang Goethe-Universität, Frankfurt; LL.M., University of Virginia; Dr. iur. Frankfurt. The following remarks will deal with the concept of public finance in the European Community.1 It is particularly tempting to compare, in this regard, the history and development of the United States and the European Union. However, because the financing mechanisms of the EU are far less sophisticated than those of the United States, comparison should (at present) restrict itself to structural considerations rather than delving into details. Elaborating on remarks made by Lerke Osterloh, while also relating […]

Comment: Conceptions of Fiscal Federalism: Dual and Shared Sovereignty

2 Colum. J. Eur. L. 565 (1996) Bradley C. Karkkainen. Associate Professor of Law, Columbia University School of Law. The principal papers presented here, by Lerke Osterloh and Richard Briffault, are highly informative and illuminating. The authors analyze the factual realities and practical limitations, as well as the legal underpinnings, of the “fiscal constitutions” of three federal systems: the United States, Germany, and the European Union. These papers thus provide an excellent basis for comparisons among those three systems. Of course, the papers themselves do not do the work of comparative analysis, but this is no criticism, for such was […]

Subsidiarity, Harmonization, and Their Values: Convergence and Divergence in Europe and the United States

2 Colum. J. Eur. L. 573 (1996) Gerald L. Neuman. Professor of Law, Columbia University School of Law. In surveying insights gained from these two symposia, I will not presume to replicate George Bermann’s fine recapitulation of the first symposium. Rather I will try to make a series of comparative observations on what I have learned, from an American point of view, under the general heading “Subsidiarity, Harmonization, and their Values. Speakers have repeatedly invoked the Supreme Court’s opinion in New York v. United States. Early in that opinion, Justice O’Connor made the following disclaimer: The benefits of this federal […]

Lessons Learned by Comparing Federal Systems

2 Colum. J. Eur. L. 583 (1996) Michael Bothe. Professor of Public and International Law, Johann Wolfgang Goethe-Universität, Frankfurt. Co-director, Institute for Comparative and International Economic Law; Dr. iur. Heidelberg. At the end of any scientific endeavor like this one, it is always good to come back full circle, to the very beginning. In the beginning, there was, as there should have been, the question – the good question. At the end, one hopes there is an answer. Let me take up the questions George Bermann raised in his introduction and try to find out whether we know more about […]

Book Review: Controlling Environmental Policy: The Limits of Public Law in Germany and the United States. By Susan Rose-Ackerman. New Haven, Conn.: Yale University Press, 1995.

2 Colum. J. Eur. L. 589 (1996) reviewed by Peter L. Lindseth. Associate in Law, Columbia University School of Law; J.D. Cornell; Ph.D. candidate (history) Columbia. COMPARING ADMINISTRATIVE STATES: SUSAN ROSE-ACKERMAN AND THE LIMITS OF PUBLIC LAW IN GERMANY AND THE UNITED STATES Susan Rose-Ackerman’s recent comparative study of German and American environmental policy, Controlling Environmental Policy: The Limits of Public Law in Germany and the United States, reflects a persistent intellectual concern among those who study the modem administrative state. One knowledgeable observer, commenting on Weber, called this a concern with “the possibilities and limitations of political democracy in […]