Friday, July 27, 2012

Democracy Part XXVII--The Utility of Voting in the Shadow of the Administrative State

I have been considering the value of voting in the shadow of the administrative state.  Larry Catá Backer, Democracy Part XXVI: Democratic Accountability--From Voter to Managed Mob, Law at the End of the Day June 4, 2012. And I have suggested that though it has lost its function of direct accountability for representative actions by those charged with the government of the state at the behest of the electorate (and those dependent on the electorate), it retains a symbolic effect and more importantly served as a barometer of behavior management (social harmony) and a general sense of resistance or acceptance of the techniques of governance brought to bear on the voting population (and in their name). 

The Monkey Cage, Oct 20, 2011)

While  this might produce a certain level of disillusionment, and perhaps spark a confrontation with the governance apparatus of the administrative state, on the part of voters at least, no such effect is discernible.  Indeed, the opposite might be said to be true.  Voting in political elections is more popular than ever and a number of regimes that have failed to conform to to poplar assumptions about voting, have fallen in 2011 and 2012, including those of Arab/Berber North Africa and along the Saudi periphery. Let's consider briefly why that might be.

Wednesday, July 25, 2012

From Nicholas Rowland and the BBC: Plagiarism in Dissertations Ending Careers

Nicholas Rowland over at the Installing (Social) Order blog has written on "Plagiarism in Dissertations Ending Careers".  This is perhaps unintended consequences of open access--an enhanced monitoring of rules and an increase in the costs of rule bending in the service of career ambition and academic status in markets for academic prestige and its benefits (position, grants, readership, reputation, etc.). 


(From Viewpoint: The spectre of plagiarism haunting Europe, BBC News OnLine, July 24, 2012 "A spectre is haunting Europe, and this time it is the spectre of plagiarism and scientific misconduct. Some high-profile politicians have had to resign in the last 18 months - but the revelations are also shaking respected European universities. . . .Last February, a reviewer of German Defence Minister Karl-Theodor zu Guttenberg's doctoral dissertation discovered and documented some plagiarised passages. When the papers pounced on this, zu Guttenberg denied any wrongdoing, calling the accusations "absurd". If he had messed up the odd footnote, he said he would fix it for the second edition. Within days, a group of people formed around a wiki they called GuttenPlag Wiki and proved him to be quite wrong. He had to resign just two weeks later. . . . Meanwhile, the leading scientific journal Nature has accused the Romanian prime minister [pictured above] of plagiarising part of his PhD. He denies wrongdoing and has been backed by a Research Ethics Council, but the accusations have now been upheld by two academic panels in Romania, including one at the University of Bucharest, which awarded the PhD in 2003. " )

 Rowland touches on one of the more interesting  transformative consequences of an increasingly severe move toward transparency cultures.  But transparency, as norm and technique, can cut in many directions.

  This problem of transparency can be understood from its role both as technique and norm, as the need for formal constituting structures of organization and as the “tight grid of disciplinary coercions that actually guarantees the cohesion of that social body.”[1]  As technique, transparency is understood as the aggregate of methods of producing information for use in managing power relationships.  As norms it serves as the expression and policing of the normal and thus the acceptable—right conduct, right rule and right relations among individuals and the social organs that manage their relations. Both as norm and as technique, transparency is deployed in two quite distinct arenas.  It is used within an organization or community to enhance its operation and discipline its members; it is used externally to enhance legitimacy (norm) and accountability (technique) among stakeholders who have an interest in but not a direct participation in the operation of the enterprise. "In our day, it is the fact that power is exercised through both right and disciplines, that the techniques of discipline and discourses born of discipline are invading right, and that normalizing procedures are increasingly colonizing the procedures of law, which might explain the overall workings of what I would call a 'normalizing society.'[2]

[1] Michel Foucault, "Society Must be Defended": Lectures at the Collège de France 1975-1976 37 (David Macey, trans., St. Martin's Press (Picador) 2003).
[2] Id. at 38-39.

From Larry Catá Backer, Transparency and Business in International Law — Governance between Norm and Technique (March 17, 2012).  Transparency is a potent construct. More importantly, in a world that continues to embrace the ideology of mass movements (culture, society, politics, economics) transparency also serves as a critically important technique for empowering the masses in systems grown so complicated and remote that voting and other conventional measures of accountability have lost their power.


Monday, July 23, 2012

From Penn State Altoona: Teach-In on The Culture of Cover Up and Failures of Governance

In my role as Chair of the Penn State University Faculty Senate, I have been writing about the crisis of governance at the university that resulted from the arrest and eventual conviction of a former member of the Penn State Football Team coaching staff on charges of sexual misconduct with little boys over an extended period of time.  In the course of the criminal investigation outside investigators denounced the senior administration of the University for covering up these activities for well over a decade.  That cover up, it was suggested, was made possible in part by a governance culture that encouraged the vesting of uncontrolled and unaccountable power in administrators, and in the case of the athletics programs, of  four of the most senior administrators at the university.  And thus the governance crisis. (For my commentary see,, e.g, In Anticipation of NCAA Sanctions Against Penn State: Asymmetric Process in the Service of Gesture; Removing the Paterno Statue--Statement of President Erickson; Senate Council Meeting to Consider the Senate's Role in Responding to the Freeh Group Report; Re-Imagining the Relationship Between Board of Trustees and University Faculty Senate: An Interim Report and Request From its Chair; Drawing the Wrong Lessons From the Sandiusky Scandal for Institutional Reform and Athletics: John Feinstein on "The Lesson of Penn State"; Statement of the Penn State University Faculty Senate Chair and Chair-Elect on the Release of the Freeh Group Report; Penn State Prepared for the Release of the Freeh Group Report; Remarks on Assuming Duties as Chair of the PSU University Faculty Senate).

(Pix from Ralph H. Russo, Penn State Football Slammed With NCAA Sanctions, ABC News July 23, 2012 "Penn State Office of Physical Plant workers cover the statue of former football coach Joe Paterno near Beaver Stadium on Penn State's campus in State College, Pa., on Sunday, July 22, 2012. The university announced earlier Sunday that it was taking down the monument in the wake of an investigative report that found the late coach and three other top Penn State administrators concealed sex abuse claims against retired assistant coach Jerry Sandusky. (AP Photo/Centre Daily Times, Christopher Weddle) MANDATORY CREDIT; MAGS OU")

Faculty members at the university have tried to find ways to understand the resulting administrative crisis.  Indeed, the failures of university governance provides a rich source of materials for theorizing governance in complex organizations deeply embedded in webs of regulations and strong stakeholder cultures.  One of the more interesting efforts occurred on the Altoona campus of the University. There, in early December 2011, the faculty hosted a "Teach-In."  My guest blogger, Nicholas Rowland, participated.  Well before the distribution of the Freeh Group  Report or the decision by the NCAA and Big Ten, Professor Rowland, relying (fortuitously) on the week's readings in his class on Social Theory, produced an intervention in the "Teach-In" that is worth considering now.

Sunday, July 22, 2012

New Paper: "The Proletarian Corporation"

The Association for the Study of the Cuban Economy will be hosting its 22st Annual meeting and Conference in Miami August 1-4, 2012.

For the Preliminary Program, please click here »
For Press Release for the Meeting, please click here »

ASCE has also published its proceedings since its inceptions, many of which remain important and timely work. ASCE's proceedings may be accessed here. ASCE is affiliated with the American Economic Association and the Allied Social Sciences Association of the United States, ASCE maintains professional contacts with economists inside Cuba—whether independent or associated with the Cuban government—who are interested in engaging in scholarly discussion and research. 

The abstract and introduction follows, and the paper (with references and links) may be downloaded HERE.  Comments and reactions are welcome.

Saturday, July 21, 2012

My New Website "Backer-in-Law" Just Launched

Just a short announcement--my new website "Backer-in-Law" has just been launched.  The website contains links to my current research and papers, courses (including course syllabi), conference presentations (podcasts and PowerPoints), and published work.  It also includes links to my blogs, highlighted student work, newsletters for the Minority Groups Section of the Association of American Law Schools, links and information about the series I edit for Ashgate publishing on Globalization (links below).  

(Pix (C) Larry Catá Backer 2012))

Please visit.  The site is a work in progress.  I am still uploading material with the aim of keeping the site current. I am always looking for ways to exchange ideaqs and hope that this site contributes in some small way to global efforts to open access to knowledge and knowledge produciton.

Here is the link to the WELCOME PAGE.

Tuesday, July 17, 2012

Develop the West (西部大开发): Michael Komesaroff on A Tale of Contrasts--China, Aluminum and Cooper

Michael Komesaroff, principal of Urandaline Investments, a consultancy specializing in China’s capital intensive industries, and a former executive in residence at the School of International Affairs, Pennsylvania State University, has produced an excellent presentation China's position in the markets for aluminum and copper, "A Tale of Contrasts:  Aluminum and Cooper," that he presented at Macquerie Capital in Beijing, China in May 2012. 

Of particular interest in the presentation was a reminder of the importance of dis aggregating Chinese metals sector performances in analyzing China's global position in metals markets, and the effects of these differences on State Council approaches to the application of the "go out" (走出去战略) policy and the equally important but less well understood "Develop the West" (西部大开发) policy for each.   This post presents a summary of Mr. Komesaroff's presentation.

Saturday, July 14, 2012

John Ruggie and Philip Alston: Amici on Kiobel v. Royal Dutch Petroleum--On Corporate Liability Under International Law, Extraterritoriality and Culpability for Aiding and Abetting

Kiobel v. Royal Dutch Petroleum et al., 621 F.3d 11 (2d Cir. Sept. 17, 2010), cert. granted (U.S. Oct. 17, 2011) (No. 10-1491),), which will be re-argued before the U.S. Supreme Court in late 2012,  has proven to be a case potentially rich in consequences for corporate and international law.  From out of the efforts of the powerless in Nigeria seeking some redress for alleged wrongs committed by state and private organizations and individuals, it has become an important site for the development of notions of international and corporate law in the United States with far ranging repercussions abroad. 

 (From  Peter Weiss, The question before the US supreme court in Kiobel v Shell, The Guardian, Feb. 28, 2012 ("Charles Wiwa, in Chicago, 2012. Wiwa fled Nigeria in 1996 following a crackdown on protests against Shell's oil operations in the Niger Delta. He and others claim Shell was complicit in Nigerian government actions that included fatal shootings, rapes, beatings and arrests in the Ongoni region. Photograph: Charles Rex Arbogast/AP"))

Re-argument has re-focused the case on an additional issue: "[w]hether and under what circumstances the Alien Tort Statute,"  28 U.S.C. §1350, allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.” (Kiobel v. Royal Dutch Petroleum Co., et al., 621 F.3d 11, order for reargument (U.S. Mar. 5, 2012). Yet the core issues also remain. For international law, the issue revolves around the extent of liability for human rights abuses under international law that might be cognizable within ATS under the standard articulated in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) and its progeny. For corporate law, the questions around around the consequences of corporate person hood in the wake of Citizens United v. Federal Election Commission, 558 U.S. 50 (2010) and its implications for liability under international law.  It is no surprise, then, that "Kiobel has attracted a great deal of interest in the legal community. Over 20 friend-of-the-court briefs have been filed on the side of the plaintiffs and almost that many on the other side." (From Peter Weiss, The question before the US supreme court in Kiobel v Shell, The Guardian, Feb. 28, 2012).  

This post considers one of them, the amici brief filed by John Ruggie and Philip Alston on the question of corporate liability under international law for human rights violations. Kiobel v. Royal Dutch Petroleum Co, No. 10-1491 Brief Amici Curiae Of Former Un Special Representative For Business And Human Rights, Professor John Ruggie; Professor Philip Alston; And The Global Justice Clinic At Nyu School Of Law In Support Of Neither Party dated June 12, 2012 (the "Ruggie/Alston Brief").

Wednesday, July 11, 2012

Joshua Branch, Nicholas Pyeatt, and Nicholas J. Rowland Reviewing Theda Skocpol and Vanessa Williamson (2012). The Tea Party and the Remaking of Republican Conservatism

Posted below is a wonderful review of of Theda Skocpol and Vanessa Williamson (2012). The Tea Party and the Remaking of Republican Conservatism  Oxford: Oxford University Press, 2012) ISBN-10: 0199832633 ISBN-13: 978-0199832637.

(Pix (c) Larry Catá Backer 2012)

The review was prepared by  Joshua Branch, Nicholas Pyeatt, and Nicholas J. Rowland.

Monday, July 09, 2012

Corporate Social Responsibility With Chinese Characteristics--Part II

I have been considering the manner in which corporate social responsibility has become an important component of the social norms whose parameters shape corporate governance beyond law.  Yet even as corporate social responsibility, as a concept, goes global, it retains certain important regional differences. This is particularly so in China.

(Pix (c) Larry Catá Backer 2012))

So the question arises, ought Chinese CSR to be judged by its own terms or against global consensus at least as articulated by developed states?  My research assistant Shing Kit Wong (Penn State School of International Affairs, MIA '12) has begun to explore the socio-cultural and political bases of  corporate social responsibility and the human rights impacts of corporate behavior, in China.  His preliminary report was posted at:  Corporate Social Responsibility with Chinese Characteristics, Law at the End of the Day, Nov. 9, 2011. 

With this post, Mr. Wong continues his exploration; Shing Kit Wong, Corporate Social Responsibility in China (Part 2).

Tuesday, July 03, 2012

New Working Paper: "The Structure of Global Law"

For those interested, I have posted the following working paper to the Social Science Research Network (SSRN) website: The Structure of Global Law: Fracture, Fluidity, Permeability, and Polycentricity.

(Pix (c) Larry Catá Backer 2012))

This working paper continues work on the evolution of  a "law" beyond that of the domestic legal orders of states and the international law frameworks that serve as an expression of state based collective governance. To that extent, it seeks to liberate theory both from the ideological constraints of the state system and as well from the limitations of earlier work in transnational law.  Not that the state is a bad thing, or that its ideology is neither useful nor powerful; merely that state ideology, and the state itself, is no longer the sole or controlling occupant of the center of regulatory or governance power.  To fail to take this into account is to ignore reality in favor of preserving the ideological purity of a world view that passed with the ascendancy of globalization.

The concept of transnational law, as controversial as it remains, is still tied too closely to the ideal of the national, and to the notion of power legitimacy as possible only within the organs of and bounded by the legal structures of the state.  Transnational law still retains too close a connection to the state system, and its ideology, to offer a substantially interesting way of understanding developments in governance in the wake of globalization.  What follows is the abstract and a link to the working paperTo consider the possibility of law/governance beyond the state it is necessary to avoid attaching its framework either to the state or to law (as traditionally and narrowly understood as a product of the state).

Monday, July 02, 2012

New From Transnational Dispute Management (TDM) Recent Issues and Call for Papers

The TDM Journal (ISSN 1875-4120) is a comprehensive and innovative information service on the management of international disputes, with a focus on the rapidly evolving area of investment arbitration, but also in other significant areas of international investment (such as oil, gas, energy, infrastructure, mining, utilities etc). It deals both with formal adjudicatory procedures (mainly investment and commercial arbitration), but also mediation/ADR methods, negotiation and managerial ways to manage transnational disputes efficiently.

TDM welcomes articles covering a wide range of topics, so feel free to contact them and discuss possible contributions for either the specials or regular issues.

Sunday, July 01, 2012

Guest Blog: Nicholas Rowland on "Comparing governance with and without government: Learning from unplanned civil engineering"

My colleague here at Penn State, Nicholas Rowland, guest blogs on "Law at the End of the Day" form time to time.  He is an assistant professor of sociology at Penn State University, resident at our Altoona, Pennsylvania campus. He received his Ph.D. from Indiana University in Bloomington, IN, Department of Sociology focusing on the Sociology of Technology with a minor study in Cultural Studies. He is also a principal contributor to Installing (Social) Order, a blog on the sociology of infrastructure, exploring the sociotechnical nerves of contemporary society, originally formed as an informal work group of researchers at Bielefeld University's Department of Sociology.

  (Pix courtesy Nicholas Rowland)

Today, Professor Rowland blogs on  Comparing governance with and without government: Learning from unplanned civil engineering.