Federalism of Rights: Perspectives of Dialogue and Pluralism in Multilevel Fundamental Rights Adjudication. Germany, the U.S., and the EU Compared

• Applicant: Professor Dr. Thomas Kleinlein
• Subject Area: Public Law
• Term: from 2013 to 2019
• Project identifier: Deutsche Forschungsgemeinschaft (DFG) - Project number 245511818

In a comparative study, I would like to generate knowledge about the differing potentials for a dialogical and pluralistic fundamental rights adjudication in federal systems. Germany, the U.S., and the EU are the subject of the investigation. I am expecting a practically relevant output of my research especially with regard to current challenges of fundamental rights protection in Europe. I am thinking particularly of the role of the ECJ after the EU's accession to the ECHR and the Convention system of protection, on the one hand, and of the role of the German Federal Constitutional Court in the course of an ongoing Europeanization, on the other. Against this background, I consider it appropriate to develop a federal theory of multilevel fundamental rights adjudication, as an alternative to common state- and sovereignty-oriented understandings. To that end, I will focus mainly on effective fundamental rights protection for the individual in multilevel systems, on the modes and procedures of the fundamental rights courts' interaction, and on their division of responsibilities, in fine on federalism as a form of constructive dialogue. Such a federal viewpoint helps to understand legal doctrines with regard to the scope of application, review standards, and intensity of review as a function of the institutional structures and of court interaction.I have divided the work program into four steps. First, I will identify the different framework conditions with regard to competences and institutions in Germany, the U.S., and the EU. In a second step, I will analyze the complex phenomenon of unitarization based on federal rights. In the third step, I will search for the potential for a better, more appropriate fundamental rights protection in a convergent interpretation which builds on the interaction of courts. Therefore, I will investigate how convergence, instead of unilateral unitarization, can be achieved in a federalism of rights on the basis of federal competition and of a dialogue between courts. This is based on the prerequisite that the courts interact at eye level. For this reason, I will analyze in particular the strategies which (member) state courts have developed in order to extend the reach of their jurisprudence beyond the limits of their jurisdiction, thereby strengthening their own significance as dialogue partners. In the fourth step, I will finally examine the doctrines and procedures that fundamental rights adjudication may use in order to become more open towards federal diversity. I will develop proposals which seem structurally adequate on the basis of the preceding steps of the work program and may serve as guidelines for courts in multilevel systems.

• DFG Programme: Research Grants