- 1. Methodology: Responsive JurisprudenceHide
A focal point and at the same time a unifying element of the chair's research is the substantiation and conceptual contouring of a "responsive jurisprudence". By this we mean a (private) legal scholarship grounded in legal theory, which examines the social functions of (private) law concepts and institutes and draws conclusions for the mutual irritation of environment and law. Law does not simply exist formally on paper; the conflicts to be solved by law are primarily cases in society, each with specific social contexts. At the same time, more and more cases in modern society are becoming increasingly complex: a problem can be viewed from different perspectives in each case. As a result, the social conflict underlying a legal case is not always obvious. In order to be able to develop problem-related solutions for such cases, law relies on non-legal, i.e., sociological or economic, knowledge about these conflicts.
However, this information cannot simply be adopted, because law has developed its own concepts and knowledge bases and operates according to its internal standards of law. Therefore, law depends on a translation mechanism that can adequately integrate environmental description and convert it into law. This is where we see the task of legal scholarship as "responsive jurisprudence." It is primarily a scientific method and closely connected with interdisciplinarity. Secondarily, it can also be structurally linked with a method related to the application of law. The product of this process is a responsive doctrinal legal research that transforms extra-legal knowledge into operable legal doctrinal structures.
- 2. Non-discrimination Law Hide
A central reference area of the “responsive jurisprudence” project is non-discrimination law. In particular, the discussion of non-discrimination law requires the environmental sensitivity of law that has above been propagated. Otherwise, it would be incapable to legally identify and appropriately moderate the actual experiences of discrimination. Moreover, in this domain of law, the traditional assumptions that law (doctrinal legal research) is apolitical and independent from prior understandings seem particularly dubious. Considering this background, non-discrimination law is thus also suitable as a foil for (private) legal theory.
At the same time, non-discrimination law is an intersection for the other research fields of the chair: On the one hand, legal acts regarding non-discrimination, such as the AGG (General Act on Equal Treatment), is influenced with regards to various aspects by constitutional, European Union and international law. Hence, the answer to questions of non-discrimination law often raises questions about the conception of the (European) multi-level system (see 3. Multi-Level System). For instance, in the field of regulation of so-called ADM systems, the different research areas are also directly intertwined: Here, the challenge is to first grasp the technical foundations of algorithm-based decision-making systems, to then reformulate them legally, and to finally process them taking specifically into account potential situations of discrimination (see 5. Challenges of ADM Systems).
- 3. Multi-level SystemHide
European law is an essential pillar of national private law – not only in commercial and consumer matters, but also in statute and family law, which traditionally falls under national prerogative: The European Union’s primary and secondary law therefore strongly shape today’s private law. The result is a multi-layer model in which supranational and national – as well as other, more far-reaching international – regulatory levels interact in a variety of ways. Legal scholarship is thus forced to rethink traditional notions of legal hierarchies. This has a lasting impact on legal research and must also be reflected in legal education. For example, the influence of European Union law on national law must be taught at an early stage of legal training, for instance in the field of non-discrimination law as a key reference area.
- 4. Intellectual Property LawHide
Intellectual property law is the legal infrastructure law of modern-day knowledge organization. The main object of research is a question that transcends the individual intellectual property rights: To what extent can and should the existence and exercise of rights be linked to functional conditions in the environment of law? Whether or rather to what extent can and should a change in these environmental conditions impact the design of intellectual property rights (keyword: proceduralization)? A key issue of fundamental research in this area – which has implications for the (legal) political discourse and the practical implementation of the regulatory approaches at the same time – is to work out in detail the commonalities of the already existing approaches to the various property rights (components of information infrastructure law).
The chair's research, however, focuses on copyright law. Its analysis shows that problem solutions are often still based on analogous models of thinking. Not all actors involved sufficiently recognize the role of copyright as a regulatory framework for communication in society. Copyright plays a key role in a pluralistic democracy! This aspect has been addressed in the "Memorandum on the Future of the Creative Ecosystem in Europe", which could be carried out thanks to significant funding from the chair and the Research Group. Concretizing the demands mentioned there (development of appropriate legal framework conditions for market- and technology-based solutions) is – to put it briefly – the chair’s work program in copyright law for the next few years.
- 5. Challenges of ADM SystemsHide
The research field of "Artificial Intelligence", which originates in computer science, is having an increasing impact on society and law. The legal discourse, however, has so far mainly addressed questions of liability and contract law. The fact that risks in the area of non-discrimination are inherent to technological progress is often discussed in the fields of ethics and sociology, yet neglected in our jurisprudence. At the same time, law, legislators and legal professionals are exposed to the tension between the promotion of innovation and the responsibility for innovation in an area that is particularly sensitive to fundamental rights (protection against discrimination, Art. 21 of the Union’s Charter of Fundamental Rights, Art. 3 of the German Constitution). To meet these challenges, there is a great need for research by legal scholars. This reference area is particularly interesting because two fields of (interdisciplinary) research can be brought together at the chair: non-discrimination law and legal issues of digitalization.
- 6. Building Blocks of Contract Law for the 21st CenturyHide
The EU is currently revising contract law in relation to the digital domain. These legislative acts have significant consequences for our current understanding of private law. Up to now, contract law has only been effective in bipolar legal relationships between the parties. Problems which stem from this approach are supposed to be solved by other fields of law, such as antitrust law. This paradigm is no longer up to date as present contract law often places a heavier burden on the weaker party and/or externalizes (social) costs to third parties. The existing regulatory instruments, especially competition law, are either too late or too poorly effective. Contract law as a regulatory instrument must meet the new challenges of the digital society.
IoT products are hybrid products, i.e., products consisting of a physical object combined with digital content, for instance an Internet-enabled refrigerator with app control. In addition to the seller, other players are involved in the sale of these products, e.g., those who provide the digital services. The cross-linked technical functions and economic relationships in the sale of IoT products perfectly illustrate that contracts do not exist in isolation from the rest of the world. In order to fulfill its function, law must reflect this reality and become more adaptable and flexible – also through the creation of new structures and concepts.
Data or rather the handling of such is currently in the spotlight of legal research. On the one hand, consumers are supposed to be able to dispose of their data via contract, on the other hand, the GDPR (General Data Protection Regulation) grants them the right to have their data deleted at any time. How this gap can be legally bridged is currently the subject of much de-bate.
Data Privacy Law
Free access to data is important for innovation both in products and markets. Here, too, a balance must be found between free access to data for one thing and data exclusivity as well as the legitimate protection of trade secrets on the other side. Contract law must be put in a position to better fulfill its responsibility to society as a whole.