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Peter Koerver Schmidt

Abstract

The article analyzes whether the investment in a private equity fund may create a permanent establishment (PE) for foreign investors. The analysis is divided into two main parts, as the question of creating a PE for the foreign investors is considered with respect to both the main PE rule and the agency PE rule. The amendments to the PE definition prescribed in the OECD/G20 BEPS report on Action 7, and incorporated into the 2017 version of the OECD Model with Commentary, are taken into consideration. It is concluded that the final outcome depends on the specific setup of the private equity fund at hand and that some degree of uncertainty may often remain. Moreover, the recent amendments to the PE definition do not appear to have reduced this uncertainty—rather the contrary.

Open access

Troy L. Harris

Abstract

The early eighteenth-century English ecclesiastical courts are a case study in the secularization of a legal system. As demonstrated elsewhere, the courts were very busy. And yet the theoretical justification for their jurisdiction was very much a matter of debate throughout the period, with divine-right and voluntaristic conceptions vying for precedence. Placed in this context, the King’s Bench decision in Middleton v Crofts (1736) represented an important step in the direction of limiting the reach of ecclesiastical jurisdiction, and did so on grounds that undermined divine-right justifications of the ecclesiastical court system as a whole.

Open access

Margrit Seckelmann

Abstract

In seiner Schrift Das Dilemma des Verwaltungsmannes von 1965 bringt Fritz Morstein Marx, der Verwaltungswissenschaftler wie Verwaltungspraktiker auf beiden Seiten des Atlantiks tätig war, das Problem des Verwaltens folgendermaßen auf den Punkt: Verwalten muss auch immer eine gestalterische Komponente innehaben. Tut es das nicht, kann eine solche Beschränkung auf den bloßen Normvollzug langfristig zu Politikverdrossenheit führen. Jedoch droht der „Verwaltungsmann“ dabei seine Kompetenzen zu überschreiten, weswegen er Nachteile erleiden könnte. Es bieten sich zwei Reaktionen an: Das Verkriechen in ein Mauseloch, wo man in möglichst wenig Kompetenzprobleme gerät - oder aber umgekehrt die Übernahme von Verantwortung, auf die Gefahr hin, negative Konsequenzen zu befürchten. Morstein Marx plädiert für die zweite Lösung, bindet sie aber zugleich in ein Beamtenethos ein.

Open access

Don Mayer and Adam Sulkowski

Abstract

The two Emoluments Clauses in the U.S. Constitution forbid federal officials from accepting “any present, Emolument, Office, or Title, of any kind whatsoever” from foreign or domestic governments. President Donald Trump’s business interests generate numerous opportunities to use public office for his personal benefit. This article examines the history of the Emoluments Clauses and the Framers’ conception of corruption. The conflicts of interest alleged in pending emoluments lawsuits against President Trump would not be allowable in the private sector, and various plaintiffs argue that the Emoluments Clauses apply to all public officials, including the President. The President’s lawyers have claimed he is exempt from the application of these clauses and have raised numerous procedural objections, such as challenging who might have” standing” to bring a lawsuit to compel his compliance with the clauses. Out of three cases filed in 2017, one has been dismissed, while two judges have recognized that the plaintiffs have standing. In each lawsuit, the President’s lawyers insist on a conception of corruption that is quid pro quo, where only bargained for exchanges count as corruption. While the Emoluments Clauses require public officials to get Congressional permission before receiving such benefits, the President’s position is that Congress must first demand an accounting of any personal benefits, rather than the burden being on the President to ask permission. Thus far, two courts have rejected that approach, and as of this writing, further appeals can be expected.

Open access

Thomas Rohringer

Abstract

This contribution examines the role of trust in disabled veteran welfare in Bohemia during the First World War. It places this concern for disabled veterans’ trust in a wider political context as trust emerged as a specific concern in Cisleithanian political discourses on administrative reform around 1900. In the context of welfare for disabled veterans in Cisleithania, trust gained novel importance. Medical and occupational experts deemed it imperative to gain disabled veterans’ trust to maintain their role as experts and developed specific strategies of emotionally engaging with disabled soldiers to gain their trust. Karl Eger, a military official, emerged as an influential actor in Bohemian welfare for disabled veterans. He propagated a welfare administration based on local welfare boards, which would supposedly possess disabled veterans’ trust. His idea of trust was, however, based on concepts of national communities and he implemented it to re-organize disabled veteran welfare based on nationality.

Open access

Margareth Lanzinger

Abstract

The points of departure for the contribution are the Catholic Church’s prohibition of consanguineous and affinal marriage and the practice of dispensation with a geographic focus on the Diocese of Brixen, which comprised parts of historical Tyrol and Vorarlberg during the period of study. Granting dispensation was and remained an act of grace, even when government regulations began to interfere in administrative procedures in the late 18th century. The amount of dispensation applications regarding close degrees of consanguinity and affinity significantly increased during this time. Emotions were an integral part of these proceedings. Two central areas of interest are: What were the effects of recording emotions in the dispensation paperwork, and how were the ways that emotions were described in writing expressed in social interactions? The hypothesis of this study is that applicants tried using emotions as instruments for expediting their applications on the one hand, and that lower-level clergy used the practice of recording emotions in order to legitimize supporting dispensation applicants on the other hand.

Open access

Joseph D’Agostino

Abstract

Highly influential legal scholar and judge Richard Posner, newly retired from the bench, believes that law is irrelevant to most of his judicial decisions as well as to most constitutional decisions of the U.S. Supreme Court. His recent high-profile repudiation of the rule of law, made in statements for the general public, was consistent with what he and others have been saying to legal audiences for decades. Legal pragmatism has reached its end in abandoning all the restraints of law. Posner-endorsed “epistemological democracy” obscures a discretion that is much worse than the rule of law promoted by epistemological authoritarianism. I argue that a focus on conceptual essentialism and on the recognition of coercive intent as essential to the concept of law, both currently unpopular among legal theorists and many jurists, can clarify legal understandings and serve as starting points for the restoration of the rule of law. A much more precise, scientific approach to legal concepts is required in order to best ensure the rational and moral legitimacy of law and to combat eroding public confidence in political and legal institutions, especially in an increasingly diverse society. The rational regulation by some (lawmakers) of the real-world actions of others (ordinary citizens) requires that core or central instances of concepts have essential elements rather than be “democratic.” Although legal pragmatism has failed just as liberal theory generally has failed, the pragmatic value of different conceptual approaches is, in fact, the best measure of their worth. Without essentialism in concept formation and an emphasis on coercion, the abilities to understand and communicate effectively about the practical legal world are impaired. Non-essentialism grants too much unwarranted discretion to judges and other legal authorities, and thus undermines the rule of law. Non-essentialist or anti-essentialist conceptual approaches allow legal concepts to take on characteristics appropriate to religious and literary concepts, which leads to vague and self-contradictory legal concepts that incoherently and deceptively absorb disparate elements that are best kept independent in order to maximize law’s rationality and moral legitimacy. When made essentialist, the concept of political positive law shrinks, clarifies, and reveals its true features, including the physically-coercive nature of all laws and the valuable method of tracing the content of law by following its coercive intents and effects.

Open access

Arndt Brendecke

Abstract

The essay is dedicated to the idealized emotionlessness of early modern Spanish office holders. It focuses on the so called corregidores, which represented the king and administered justice in major Spanish cities. Their instructions often idealized the total lack of pasiones or at least their complete invisibility. Such a discarding of all affects echoed the ideals of impartial judges, just kings and uninterested clerics and had specific functions, especially in cities with their high density of mutual observation. To live accordingly, that is, with one’s own emotions permanently held in check, required personal aptitude, appropriate age and a process of education and study which should convert certain habits into a ›second nature‹ and thus distinguish the corregidor significantly from the society over which he was to judge. Constantly checked by society however, this second nature would corrupt, if not protected by a rigid and permanent »vigilance over oneself«.

Open access

Thomas Halper

Abstract

The first amendment does not protect all speech. Should it protect lies? Some argue that the state should intervene to prevent and punish lying because the people are insufficiently rational (they are too emotional, and, therefore vulnerable) or excessively rational (they find it too costly to investigate claims and are, therefore, vulnerable). Others retort that state officials are not neutral or objective, but have their own interests to advance and protect, and, therefore, cannot be trusted. Though certain kinds of lying, like fraud and perjury, are clearly not protected speech, courts have recently seemed sympathetic to the view that the proper response to lying is not government action, but the workings of the marketplace of ideas. The distinguished economist, Ronald Coase, has taken this argument much farther, applying it to commercial speech, but thus far his views have not prevailed.

Open access

Robert Garot

Abstract

This article provides a first-hand account of waiting in line to deliver migration documents at an office of the police department known as the Questura in Italy, in 2006. The spectacle of migrants suffering in line day after day, subjected to threats from police and the jostling, complaints and aggression of others in line, provided a stage for the performative realism of the widescale exclusion, criminalization and scapegoating of migrants in Italy at the time. Moreover, migrants’ relations to the state and Italians’ relations to migrants were embodied and felt through the line, marked on bodies and in memories as visceral marginalization.