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Professor Russell Miller publishes new work on German Law

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Prof. Russell Miller

Washington and Lee law professor Russell Miller has published several new scholarly works in the area of German Law.

First, Professor Miller’s latest article, A Pantomime of Privacy: Terrorism and Investigative Powers in German Constitutional Law, was recently published in Volume 68 of the Boston College Law Review.


From the abstract:

Germany is widely regarded as a global model for the privacy protection its constitutional regime offers against intrusive intelligence-gathering and law enforcement surveillance. There is some basis for Germany’s privacy “exceptionalism,” especially as the text of the German Constitution (“Basic Law”) provides explicit textual protections that America’s Eighteenth Century Constitution lacks. The German Federal Constitutional Court has added to those doctrines with an expansive interpretation of the more general rights to dignity (Basic Law Article 1) and the free development of one’s personality (Basic Law Article 2). This jurisprudence includes constitutional liberty guarantees such as the absolute protection of a “core area of privacy,” a “right to informational self-determination,” and a right to the “security and integrity of information-technology systems.” On closer examination, however, Germany’s burnished privacy reputation may not be so well deserved. The Constitutional Court’s assessment of challenged intelligence-gathering or investigative powers through the framework of the proportionality principle means, more often than not, that the intrusive measures survive constitutional scrutiny so long as they are adapted to accommodate an array of detailed, finely tuned safeguards that are meant to minimize and mitigate infringements on privacy. Armed with a close analysis of its recent, seminal decision in the BKA-Act Case, in this Article I argue that this adds up to a mere pantomime of privacy—a privacy of precise data retention and deletion timelines, for example—but not the robust “right to be let alone” that contemporary privacy advocates demand.


Second, Professor Miller is also now a regular contributor to major German newspaper, Frankfurter Allgemeine Zeitung, with a new column.  The first column was published on November 29, 2017 and titled “Shocking: German Law Faculties in Global Rankings”.

Third, a forthcoming work from Professor Miller is now available on SSRN.  Liberation, Not Extortion: The Fate of Internet Ad-Blocking in German and American LawThe article discusses the legal fate of Ad-Blocking technology in Germany and the US and has generated discussion in blogs such as the Harvard Journal of Law and Technology Digest, and Medium.

From the abstract:

Ad-blocking services allow individual users to avoid the obtrusive advertising that both clutters and finances most Internet publishing. Ad-blocking’s immense — and growing — popularity suggests the depth of Internet users’ frustration with Internet advertising. But its potential to disrupt publishers’ traditional Internet revenue model makes ad-blocking one of the most significant recent Internet phenomena. Unsurprisingly, publishers are not inclined to accept ad-blocking without a legal fight. While publishers are threatening suits in the United States, the issues presented by ad-blocking have been extensively litigated in German courts where ad-blocking consistently has triumphed over claims that it represents a form of unfair competition. In this article I survey the recent German ad-blocking cases and consider the claims publishers are likely to raise against ad-blocking in the imminent American litigation. I conclude that, when the American ad-blocking cases come, they are bound to meet with the fate they suffered in Germany. I argue that the relevant German and American legal frameworks reinforce a similar set of values, including: respect for individual autonomy; recognition of the broad social benefits ad-blocking can generate; and an insistence that publishers accept ad-blocking as part of the free market in which they must evolve and innovate in order to compete.

Last, is a forthcoming new textbook introducing German law and legal culture to non-German law students.  Professor Miller recently presented preliminary chapters from the book at a comparative law program at the University Of Melbourne.

Posted in Faculty, Faculty Scholarship, Miller, Russell A., Scholarship

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