Courts and Judges in the New Federal States in United Germany: has legal unification worked?1

 

 

By Dr GISELA SHAW

This study is based on personal interviews conducted with East and West German jurists over the last 4 years, starting in March 1990. Interviews took place in Thuringia, Saxony and Mecklenburg Pomerania in the East and Northrhine Westphalia, Bremen, Berlin, Hesse and Rhineland Palatinate in the West.2 My intention has been to observe at close quarters the changes in the East German judiciary and the legal professions in general. For the purposes of this paper, the focus will be on two aspects of this process: firstly, the restructuring of the court system; secondly, the situation of judges at these courts. The question I want to raise is whether the legal administration in East Germany might be in danger of becoming a second-class replica of that in the West.

 

1. The significance of legal unification
Three main factors have been driving legal unification.
    1. The generally acknowledged need to act at maximum speed in order to safeguard law and order within Eastern Germany as well as to provide a sound framework for the restructuring of its economy. It is worth remembering that the Federal Republic, from its very beginning, has set great store by its constitutional base and its highly developed and refined legal system as a measure of its democratic maturity. It was clearly in the interest of the West to demonstrate that even such a unique event as the accession of the GDR to the Federal Republic of Germany could be dealt with within this well established framework.
    2. The equally undisputed need to ensure that the East German population, hungering after justice and having been promised the introduction of a ”Rechtsstaat”, a state governed by the rule of law, should not be disappointed. This required the installation of a

 

1 A report based on this paper was presented at the Third European Conference on Legal Professions in Rouen, France, 13–16 July 1994. 2 I would like to acknowledge my gratitude to all those who have made these interviews possible, in particular the Ministry of Justice in Rhineland Palatinate.

judiciary that would command credibility in the eyes of the public at large. Ironically, this has actually become a source of disillusionment amongst the East German population when it became clear to them that their concept of ”justice” on the one hand and the West Germans’ concept of the ”Rechtsstaat” on the other were by no means synonymous. 3. In Germany, the legal system is very much a matter for individual states. The federation merely contributes framework legislation. A proper exercise of individual states’ powers within their own territories as well as at federal level made the speedy reconstruction of the legal systems in these states (”Länder”) an absolute priority. Mainly out of a sense of enlightened self-interest, all three parties, i. e. the federation, West German ”Länder” and East German ”Länder”, were therefore prepared to make significant investments in this area from a very early stage. Indeed, there was an undeniable element of competition, (a) amongst Western states in terms of ”adopting” and shaping in their own image one of the new states, thus extending their sphere of influence within the federation (an important factor in the context of the workings of the second chamber of the Federal Parliament, the ”Bundesrat”); and (b) amongst Eastern states wishing to emerge as the first to reach the goal. Strikingly, there appears to have been little or no real cooperation amongst the East German states themselves in this process. Thus, restructuring the East German legal system has generally been taken to represent an (if not the) indisputable collective priority in the overall process of change. Apart from the pressure of very practical needs, there was a sense that success in this area was a prerequisite for preserving the identity of the Federal Republic and its credibility at home and abroad.
    Have the Germans achieved this goal?

 

2. Restructuring the courts
The GDR court structure was geared to the needs of a centralist regime. At an early stage, the traditional German multiple jurisdictions had been reduced to a single one. Public law was totally removed with the effect that citizens lacked any effective legal means of querying administrative decisions. Individual states (”Länder”) and along with them the previous federal structure, were abolished. 14 centrally controlled districts took their place and the function of the courts within them was redefined so as to strengthen the centralist bias even further. Without the ”Länder”, their second level of appeal courts (”Oberlandesgericht”, OLG),

 

the highest courts in each state, had become redundant and were abolished.
    Legal unification required a return to the court structures of a federal system and the creation of a judiciary which could resume its role as the third and independent power within the state — a role which, in the Eastern part of Germany, it had lost for the best part of half a century.
    Thus the administration of justice was handed back to the newly created five federal states which therefore had to take on responsibility for this process. Given that their administrative systems were hardly beginning to take shape, that their economies were in disarray and that there was no relevant experience or knowhow, this was anything but an easy task. The federal legislative framework was provided by the Unification Treaty as well as subsequent legislation, in particular the Law on the Adaptation of the Administration of Law in the Accession Area (”Gesetz zur Anpassung der Rechtspflege im Beitrittsgebiet”) of 26 June 1992.3 Apart from that, the real work had to be done at regional level.
    The latter was only possible with massive support from the West, mainly from individual West German states. Whatever less appealing political and/or personal motives may have driven these initiatives, my interviews did convince me that at individual level, especially amongst the older generation of West German lawyers who volunteered to move East during 1990 and 1991, be it for a limited period or even for good, there was a strong element of personal commitment, a desire to help those who, in 1945, had been unfortunate enough to have found themselves east of the river Elbe.
    For practical reasons the Unification Treaty stipulated a period of transition during which the GDR courts of first and second instance were to remain in operation until the necessary staffing and material adjustments had been carried out (App.1, Ch.III, Sect. III).
    The only exception to this was Berlin4 where the Unification Treaty provided for a much more drastic solution in order to avoid operating two legal systems side by side in one city. In contrast to the five ”Länder” where this would have been out of the question, this could be done in Berlin without risking a complete breakdown of the legal system. All courts in East Berlin had to be vacated before 3 October 1990 and West Berlin courts took over their work

 

3 Bundesgesetzblatt (BGBl) I, p. 1147. 4 Cf. Jutta Limbach, ”Der Aufbau des Rechtswesens in den östlichen Bezirken Berlins”, Neue Juristische Wochenschrift (NJW) 39/1993, pp. 2499–2501.

 

(shared out on the basis of a law passed on 25.9.1990). All legal personnel were suspended.
    In the five new states GDR local courts (under the GDR name of ”Kreisgerichte”) continued to operate as courts of entry for all cases and district courts (”Bezirksgerichte”) retained their role as courts of second instance for all cases. However, wherever possible, labour, social security and public law matters were dealt with by specially set up panels of judges within existing local courts; tax matters were referred to panels at district level.
    Another make-shift arrangement was that instead of setting up courts of appeal at regional level (OLG), penal matters were handed over to a central court in Berlin (”Kammergericht Berlin für Strafsachen”), while other matters were dealt with by courts of second instance. In addition, each state had eventually to set up a constitutional court, not to mention draw up its own constitution, and, indeed, construct a system of legal administration, including a regional ministry of justice. The prosecution service, too, had to be restructured, court districts needed to be redefined and the number of local and district courts to be reduced or increased accordingly.
    Leaving aside for a moment the most immediate and burning issues surrounding staffing, there were pressing practical needs: suitable buildings were in short supply; where old court-buildings were available, they needed restoration, interior decoration and appropriate furniture; in many cases, pre-1945 court buildings had been occupied by other bodies (such as the prison service, the police, hospitals, even theatrical and concert companies) which needed to be rehoused before the courts could take over their accommodation. As the restructuring also spelt expansion, new buildings were required. In some cases, old factory buildings and barracks came in handy.
    In the early stages, day-to-day work was conducted in the absence of key legal texts, with telephones hardly functioning, very few qualified judges and prosecutors available, no qualified ancillary staff in sight and generally chaotic conditions. All West Germans working in the East have their particular horror stories to tell, but inevitably coloured by a sense of adventure and excitement at having coped with highly challenging situations. Fortunately, during the initial phases ordinary court business was relatively modest. East Germans were not used or inclined to taking matters to court, crime rates were low, traffic accidents rare. Most court cases therefore concerned family matters, especially

 

divorces, as East Germans, often for very practical reasons, tended to marry young and the divorce rate was high.
    However, there are three new areas where the volume of business grew at breath-taking speed: firstly, labour law cases due to the vast number of redundancies; secondly, hundreds of thousands of restitution requests following in the wake of privatization; and, thirdly, tens of thousands of rehabilitation and cassation matters coupled with the prosecution of ”Stasi” crimes. To deal with the latter, ”rehabilitation senates” were set up, usually presided over by experienced West German jurists seconded specially for this purpose. Thus, in June 1992, 85 to 90 % of cases dealt with in Mecklenburg Pomeranian courts of second instance were rehabilitation and cassation matters, with some 3 000 cases still pending. The court of second instance in Münster (Northrhine Westphalia) had seconded an entire bench for one year to assist their partner state in the East.5 In Thuringia, the situation by 30, 1992, was even more frightening:6

New entries Cases terminated Cases pending

 

Rehabilitation 1,603 3,782 6,532

 

Cassation 888 543 1,335

And yet, it has taken no more than three to four years before most major hurdles had been taken: numbers of rehabilitation and cassation cases still pending have gone down significantly (by December 1993 the figure for Thuringia was 2 700, and the expectation was that by the end of 1994, all cases would have been concluded);7 specialized jurisdictions have been set up in all five states and local and district courts have taken on the functions allocated to them in the West; all other structural features have either been or are about to be put in place; a specially convened ”Federalism Commission” (”Föderalismus Kommission”) decided in the summer of 1993 that the Federal Labour Court is going to be moved from Kassel (West Germany) to Erfurt (East Germany), and that Leipzig in Saxony, traditionally Germany’s legal centre, will become the home of the Federal Administrative Court which will be relocated from West Berlin. Leipzig will also eventually have within its walls a fifth bench of the highest criminal court as well as the German Patent Office currrently in West Berlin. This will help

 

5 Karin Schubert, ”Erfahrungen mit der Justiz in Mecklenburg Vorpommern”, Neue
Justiz (NJ) 5/1992, p. 196. 6 Erfurt ”Bezirksgericht” figures for the Thuringian Minister of Justice for the purposes of a press conference on 29 July 1992. 7 Personal letter from the President of the OLG in Jena, Thuringia, 26.1.1994.

 

to create a balance in the distribution of federal courts within united Germany.
    It is debatable (and has been debated at length) whether this rush for a court structure which is a perfect replica of that in West German states was justifiable in the absence of sufficient numbers of qualified personnel, of suitable buildings and appropriate equipment. Not surprisingly, politicians in charge of this process have defended it as absolutely necessary to provide East German states with the same level of legal provision as those in the West. On the other hand, criticism has been voiced by the Federation of German Judges (”Deutscher Richterbund”, DRB) in the face of cost-cutting in other areas of the legal system and at a time when other pressing needs cannot be met.8 Similarly, the New Association of Judges (”Neue Richtervereinigung” (NRV)) at its annual general meeting in 1993 voiced concern.9

 

3. Judges
3.1 Judges in the GDR: a deprofessionalized group
At the risk of stating the obvious, it seems worth reminding ourselves that in the socialist system of the GDR the law and lawyers were totally integrated into what was termed ”democratic centralism”. The law was not a third power with the brief to control and check state powers, but it was an instrument in the hands of the state designed to assist the strengthening and upholding of its rule, the ”state” being defined as ”the people” and, ultimately, the Party. A separation of powers would have gone against the very spirit of socialism as practised in the GDR and in other countries within the then Eastern Bloc.
    Thus Art. 90 of the 1974 GDR constitution10 states:

 

The administration of law serves the implementation of socialist legality, the protection and evolution of the German Democratic Republic and its political and social order.

 

Art. 9411 defines the qualities required for the position of a judge:

 

Only those can be judges who are loyal to the people and its socialist state and who command a high level of knowledge and life experience, personal maturity and strength of character.

 

Judges (some 1 300 of them for a population of c. 17 million, compared with around 17 000 for a population of some 61 million in

8 ”Die Richtergesetze der neuen Bundesländer”, Deutsche Richterzeitung (DRiZ), 12/1992, p. 478. 9 ”Justizaufbau im Osten kritisiert”, Frankfurter Rundschau, 1.3.1994. 10 Gesetzblatt (GBl) (DDR) I, Nr. 47, p. 453. 11 Ibid., p. 454.

 

the old Federal Republic) were ”democratically elected”, had to be re-elected every three years and were accountable to their voters. They could be removed from office or fail to be re-elected. They were subject to instructions from the Highest Court (”Oberstes Gericht”) which, in turn, was accountable to parliament (Art. 93) and, ultimately, to the Party. Art. 85 nevertheless confirms the independence of judges. As in other Central and Eastern European countries under Communist regimes, judges displayed all the main characteristics of a deprofessionalized group.
    1. Whether one looks at the admission of school leavers to Law Faculties, their legal training once they had been accepted, or, indeed, their professional activities following completion of their training — there is ample evidence of rigorous central control at the expense of personal choice and professional independence. There was almost a 100 % membership with the ruling party, the SED, amongst judges. Interviewees frequently stated that although they had joined the Party simply as a measure of expediency (to ensure being admitted as students of law), they had nevertheless found themselves in broad agreement with the Party’s aims. By 1989 there can hardly have been a judge in an East German court able to point to personal experience of an independent judiciary.
    2. The social status (and remuneration) of judges as well as their own view of their role in society matched this picture. Judges were seen and saw themselves as servants of society, as educators and arbitrators charged with avoiding or reducing social conflict. Their career choice, in as far as they themselves had had any hand in it, was not motivated by career ambition but rather by social and predagogical zeal.12
3. A lot of work handled by professional judges in the West was in the hands of large numbers of lay judges working in so-called ”conflict commissions” (”Konfliktkommissionen”) and ”social courts” (”gesellschaftliche Gerichte”).
    4. The proportion of women amongst judges was high (over 50 %). The link with deprefessionalization is an obvious, though not necessarily a direct one.
    5. The separation of legal discourse from ”normal” language, so characteristic of Western legal circles, had largely been removed from legal codes as well as from professional life. GDR law had in this sense been demystified, for better or for worse.

 

12 I found myself in full agreement here with Inga Markovits’ comment in her admirable book on the demise of the GDR (Die Abwicklung. Ein Tagebuch zum Ende der
DDR, C. H. Beck, Munich, 1993). After careful analysis of her own impressions regarding the discourse and attitudes of GDR jurists she sums up her own conclusion as ”They were social workers” (p. 75).

 

6. On the other hand, as the law as it stood was not necessarily what was being applied, judges did not always have control over their own decisions (most certainly not in criminal matters where public prosecutors and the State Security, ”Stasi”, had the final say). It seems that most of them accepted this as inevitable and as a case of the end justifying the means. Their solid training in Marxism-Leninism is bound to have contributed to this attitude.
    There can be no doubt that some aspects listed here under ”deprofessionalization” are, in fact, not without a certain appeal, such as the considerable involvement of lay judges, the high level of womens’ participation and the attempt to make legal language accessible to the public. However, these, unfortunately, were embedded in an unacceptable context of dependency on a ruling political party, on the part of judges and those judged alike, which ultimately devalued them. Nevertheless, there have been voices in the new as well as in the old federal states which deplore the utter disregard for potential improvements in an all-German legal system which might have resulted from a more cautious approach to legal unification.

 

3.2 Moving towards a unified profession
Preparing the way for legal unification (as well as ensuring as smooth as possible a transition for lawyers) began at a very early stage. A whole range of important relevant legislation was passed by the East Berlin Parliament, beginning with the lifting of barriers to the admission to the Bar in January 1990. This allowed legal personnel in more vulnerable positions to shift sideways into the advocacy. Legislation regulating the appointment of judges followed in July that year (5 July and 22 July 1990).
    The two laws on the selection of judges remained in place beyond unification but were refined by the Unification Treaty to allow for ideological screening. Only if they passed this screening process successfully were judges and prosecutors taken over as probationers (on 60 % of the salary of West German probationers), irrespective of their years of service. The initial deadline set down in the Unification Treaty had been 15 April 1991. However, the need to screen the committee members themselves (normally East Germans, with the exception of the chairmen who were from the West but had no voting rights) before they could actually take on their roles as assessors meant that things dragged on. In the end, the procedure was only completed in the summer of 1992 in all states.

 

Details regarding the screening process were left to individual states. In all of them selection panels’ decisions were based on questionnaires filled in by applicants, court files, feedback from the general public and documents from, in particular, the ”Gauck Authority” in Berlin (where all available ”Stasi” files are stored). Getting the information together often took months, although matters concerning members of the judiciary were given priority. Almost everyone who had held a high rank in the GDR legal administration (e. g. directors of courts) was automatically rejected.
    There can be no doubt that screening was normally done with great care and conscientiousness, though varying somewhat from state to state. All of those I spoke to in Thuringia in 1992 who had gone through it, whether still in post or not, appeared to accept that the procedure as such had been a necessary and a fair one. There seemed to be general agreement that it was only in this way that the credibility of the judiciary could be restored in the eyes of the public. What was queried was frequently the way in which it had been applied and the lack of feedback on why certain decisions had been taken.
    Having been appointed as probationers, judges nevertheless worked in the same capacity as judges appointed for life. Wherever possible, they worked in mixed teams to provide opportunities for East German judges to train on the job. In addition, regular weekly training days were compulsory for former GDR judges for about two years. The final appointment of former East German judges to permanent posts, if it does come, requires another three to five years of service and is subject to an assessment of candidates by the director or president of the respective court. By 1 March this year, 165 such appointments had been made.13 I was intrigued to receive this information from a Californian attorney at law working in Frankfurt, accompanied by an enraged comment to the effect that history was, after all, repeating itself. The press-cutting he had sent did not, however, mention that, by November 1993, some 11 300 former East German judges were still under criminal investigation and 8 had been found guilty.14 In the end, between 40 and 50 % of those in post in September 1989 remained in office. Of those who went through the vetting process, some 60 to 80 % kept their jobs, amongst them significantly more women than men, the latter to be explained by the

 

13 ”Auf Lebenszeit im Justizdienst”, Frankfurter Allgemeine Zeitung (FAZ), 10.5.1994, p. 4. 14 Wolfgang Wüstrich, ”Drei Jahre wiedervereinigt — auch im Rechtswesen?”, Neue Justiz (NJ) 3/1994, p. 115.

 

fact that women judges in the GDR tended to be bunched at the bottom of the career ladder — not always against their will.
    There are interesting variations in the success rates amongst applicants from state to state. For instance, in Thuringia, applicants whose prospects of success were considered slight, were advised informally to resign, either before the vetting or before the negative decision became known, thus avoiding formal dismissal and all it entailed for the individual concerned. This resulted in a relatively high final passrate.15

 

 

 

 

 

 

Brand M-P S-A Sax Thur (%) (%) (%) (%) (%)

 

In post September 1989 294 188 312 ? 219

 

Applied November 1990 242 131 266 380 195

(82) (69.7) (85.3) ? (89)

 

of these vetted 154 120 197 365 133

(63.6) (91.6) (74.1) (96) (68.2)

 

of these passed 124 82 127 223 111

(80.5) (68.3) (64.5) (61.1) (83.5)

 

”Survival” rate of those in post September 42.2 43.6 40.7 ? 50.7 1989 (%)

Withdrawn before vetting decision85 57 67 29 66 (% of applicants) (35.1) (43.5) (25.2) (7.6) (33.8)

 

Dismissed post vetting (% of those vetted) 30 41 70 113 22

(19.5) (34.2) (35.5) (31) (16.5)

To complete the picture it should be added that in Berlin, where judges and prosecutors had simply been dismissed, put on a 70 % salary until 15 April 1991 and invited to reapply for their jobs in competition with West German applicants, the situation was a good deal more serious for East Germans. Of the 195 judges who had worked in East Berlin courts, only 33 finally succeeded16 to secure a position in the new system, all of them young and most of them women.
    The decimated judiciary which even before 1990 had been understaffed by West German standards and which could not pos-

 

15 Figures vary in the statistics available. The information used here was provided by the Ministry of Justice of Rhineland Palatinate (June 1992). Abbreviations: Brand=Brandenburg; M-P=Mecklenburg Pomerania; S-A=Saxony Anhalt; Sax=Saxony; Thur=Thuringia. 16 Jutta Limbach, ”Der Aufbau des Rechtswesens in den östlichen Bezirken Berlins”, Neue Juristische Wochenschrift (NJW) 39/1993, p. 2499.

 

sibly have coped with a totally unknown body of laws from one day to the next would have been unable to function without the import of West German lawyers. Massive assistance arrived, starting with a first trickle in the summer of 1990 and increasing to a steady flow from 1991. Battles were fought and a considerable level of horsetrading conducted amongst West German twinning partners over top positions in courts and in the legal administration (e. g. between Hesse, Rhineland Palatine and Bavaria with regard to Thuringia). To illustrate the occasional near-ridiculousness of the situation: Thuringia ended up with two incompatible computer systems and two systems of staff training because no agreement could be reached between sponsors. The different spheres of influence can be traced right down to differently formatted court forms, file colours etc.
    Hundreds of West German judges (and prosecutors) were imported, either by way of secondment (most particularly in the initial phases) or on a permanent basis. As, by definition, all East German judges were probationers, positions carrying special responsibilities had to be filled with ”Wessis”. Inevitably, frictions followed at interpersonal level. Anxiety and suspicion on the part of ”Ossis” and occasional signs of arrogance and a ”conquest” mentality on the part of ”Wessis”, coupled with an astonishing degree of ignorance on the part of the latter regarding almost any aspect of life and society in the GDR, made social integration very difficult.
    However, the line separating these two was soon beginning to be blurred. By 1991, young West German lawyers (soon to be called ”Wossis”) began to seize their chances of gaining a judicial post on conditions less stringent than would have applied in their home state. The level of stringency varied and still varies greatly amongst the five new states. While Thuringia has few or no problems in attracting well qualified applicants (a total of 3 000 applications in 1991/92),17 Mecklenburg Pomerania is having considerable difficulties in filling vacancies, especially in remote small towns. By 1993, the first cohort of East German graduates who did their practical training in the West have taken up their posts. And starting this year, practical training for East German graduates is offered in the new federal states, thus opening up the prospect of recruiting fully home-grown applicants.

 

 

17 Hans-Joachim Jentsch, ”Der Aufbau des Rechtswesens in Thüringen”, Neue Juristische
Wochenschrift (NJW) 39/1993, p. 2515.

 

3.3 The picture today
So, what is the picture today? Take the example of the state of Brandenburg:18

 

18 Data supplied by the Ministry of Justice of Brandenburg for 1 June 1994.

 

East German West German

 

Former GDR Newly Seconded moved Post-re- Total GDR trained appointed tirement judges (%) (%) (%) (%) (%) (%) (%)

 

111 46 186 96 73 12 524 (21.2) (8.8) (35.5) (18.3) (13.0) (2.3)

In the state of Brandenburg East German staff currently make up some 30 % of judges (of whom 66 % are women). Career posts are filled by West Germans (5.2 % of these women), but some vacancies will occur once delegated West Germans have returned home.
    The working atmosphere in East German courts has improved considerably. A number of ”Ossis” have been promoted to permanent posts which has had the effect of lifting their morale, and probationers are now a mix from the old and the new federal states. Greater familiarity with the law of the Federal Republic has strengthened self-confidence amongst Easterners. The remaining problems facing all East German judiciaries to a lesser or greater degree can be summed up as follows.
1. There is still a shortage in most of the five states of well qualified judges to take on posts of responsibility; this is especially true of Mecklenburg Pomerania where the general standard of living is lowest and where geographical remoteness of courts poses a serious problem.
    2. The average age of judges is extremely low compared to the West. This also, of course, means a serious and widespread lack of judicial experience. One director of a local court in Thuringia claimed that such inexperience entails a desire on the part of judges to stick rather too closely to the letter of the law for fear of getting it wrong. This, in turn, for him explained the spreading sense of unease amongst the general public with regard to the work of the courts.
3. Former GDR judges still require further training. As the regular compulsory training days have been discontinued, it is left up to individuals to fill the gaps.
4. The academic qualification of judges is, generally speaking, lower in the East than in the West (irrespective of origin). In the West, judges are recruited from top performers. This is not possible in the East. Some might regard this as not necessarily a disadvantage, wishing to take other criteria into account. Yet, an imbalance remains.

 

5. The (previously extremely generous) subsidies for West Germans prepared to be seconded to the East are gradually being cut down by Western governments. This reduces the motivation on the part of experienced West German judges to accept delegation to the East. As others are returning home, the gap that needs to be filled at senior level is likely to widen.
    6. Many former GDR judges are still uncertain as to their professional future. This is not conducive to effective work and a harmonious climate.

 

4. Conclusion
There can be no doubt that the attempt to set up a court structure in East Germany that is identical with that in the West has largely been achieved. The question remains in some people’s minds whether this was, in fact, the best way of going about it. It can be argued that a slightly more cautious and less ambitious approach might have offered an opportunity to rethink the appropriateness of the present system as a whole. It might also have presented a chance of involving East Germans more actively in the debate from which, in the event, they have been excluded. Rather, they were presented with a system which they do not ”own”.
    On a more serious note, many within and outside the German legal system are beginning to ask the question: will Germany end up with a two-tier legal administration, i. e. with a highly qualified and experienced set of judges (and, incidentally, prosecutors, notaries and other legal personnel) in the West and a much less qualified and experienced set of judges in the East? Not that there would have been an easy alternative as legal unification was driven by political and economic forces. Nevertheless, in the face of the problems listed above, worries on this score do not seem totally unfounded.