Tuesday, July 30, 2013

Posted Conference Paper: "The Problem of Labor and the Construction of Socialism in Cuba"

The Association for the Study of the Cuban Economy will hold its 23rd Annual Conference in Miami this coming week.  The conference theme this year is "Reforming Cuba?" The conference program may be accessed HERE.

(Yaima Puig Meneses Y Leticia Martínez Hernández, Comienzan a funcionar cooperativas en diversos sectores de la economía, Granma, ("Fueron constituidas 99 cooperativas de mercados agropecuarios en La Habana Artemisa y Mayabeque")) 

This year I will be presenting a paper at the Conference's Panel on Legal Issues.  The title of the paper is  "The Problem of Labor and the Construction of Socialism in Cuba: On Contradictions in the Reform of Cuba’s Regulations for Private Labor Cooperatives." It includes a very close analysis of the new cooperative regulations and thoughts about the difficulties of privileging labor within the constraints of current frameworks for engaging in economic activities. This post includes information about the panel along with the abstract introduction to my paper.  More extended consideration of these issues may be found HERE.

The PowerPoint may be accessed HERE.
The Conference Paper may be accessed HERE.

Monday, July 29, 2013

23rd Annual Conference: Association for the Study of the Cuban Economy: "Reforming Cuba?"

The Association for the Study of the Cuban Economy will hold its 23rd Annual Conference in Miami this coming week. The conference theme this year is "Reforming Cuba?" Conference papers will focus on internal economic and political reforms and their impact on the economy of Cuba and the region, and will also include general sessions on the Cuban economy and society.

This post includes the Conference Program.

Thursday, July 25, 2013

On Developments in the Legality and Application of Laojiao (The system of administrative detentions, re-education through labor, or “劳动教养”) in China

Along with Keren Wang, I have been considering the constitutional implications of China's laojiao system (the system of administrative detentions, re-education through labor, or “劳动教养”), implemented in the 1950s.   Backer, Larry Catá and Wang, Keren, State and Party in the Scientific Development of a Legitimate Rule of Law Constitutional System in China: The Example of Laojiao and Shuanggui (June 1, 2013). Conference: Rule of Law with Chinese Characteristics, Vol. 2013, p. 101, 2013. 

(Tang Hui, from Zhao Yinang, In China, Court Ruling Re-Ignites Debate Over Labor Camps, China Daily July 18, 2013).

The issue of laojiao has drawn much public attention with the release of inmates from laojiao facilities who now seek compensation in the Chinese courts for wrongful detention.  Though originally rejected (See, e.g., Zhao Yinang, "Ex-laojiao inmate will continue her quest for justice," China Daily, April 13, 2013), the claim of Tang Hui, "a former laojiao inmate and mother of a rape victim, won a lawsuit at Hunan Provincial High People's Court, which ruled that local laojiao authorities in Yongzhou city pay her 1,641.15 yuan ($267.20) in compensation for their "inappropriate" decision to put her in a labor camp. She was awarded another 1,000 yuan to compensate her for "mental injury". (Zhao Yinang, In China, Court Ruling Re-Ignites Debate Over Labor Camps, China Daily July 18, 2013, reposted to  New America Media, July 20, 2013). 

My research assistant and Penn State SJD candidate Shan Gao has written a  short essay on current developments that might be of interest to those following the evolution of public opinion and public policy on laojiao in China. It follows.

Wednesday, July 24, 2013

HiiL--Innovating Justice Book Published

HiiL is an advisory and research institute for the justice sector. Its mission is to provide knowledge to make law work for people and their organisations. Maurits Barendrecht, HiiL's Academic Director, has recently announced the publication of "Innovating Justice: Developing New Ways to Bring Fairness Between People."

Barendrecht explains that its object is to "find new ways to protect rights and make access to justice affordable, building on the skills of people in prisons and in remote villages [and to l]earn how lawmaking and court procedures are becoming high tech." Sam Muller, Director, HiiL and co-author "Innovating Justice," noted: “We all have a responsibility to make justice work. You may be an activist, an entrepreneur, working in a ministry, a judge, a lawyer or a clerk. Together, you create the ecosystem in which justice sector innovation can flourish.”

Sunday, July 21, 2013

Michael Komesaroff on Factors Contributing to Performance of Chinese Enterprises Abroad

Michael Komesaroff is a 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, whose insights on Chinese economic activity has been featured here in prior posts.

 ("Secretary-General Ban Ki-moon takes part in a group photo at the 5th Ministerial Conference of the Forum on China-Africa Cooperation. UN/E. Debebe" At China-Africa meeting, Ban highlights role of South-South cooperation (July 19, 2012)).

Mr. Komesaroff recently offered nuanced insight into how Chinese companies approach doing business in Africa generally and African mining in particular during a course of an interview with Melissa T. Cook, CFA, Managing Director, Africa Investment Strategy, in "Africa Sunrise One on One," Spring 2013, available through Urandaline Investments (registration required).  This post considers some of the more interesting points made.

Saturday, July 20, 2013

"Dynamic Societal Constitutionalism"--Paper Posted

(Pix (c) Larry Catá Backer 2013)

In his 2004 Storrs Lecture, Gunther Teubner asked:

how is constitutional theory to respond to the challenge arising form three current major trends—digitization, privatization and globalization—for the inclusion/exclusion problem? That is how today’s “constitutional question” ought to be formulated, by contrast with the 18th and 19th century question of the constitution of nation-states. While that had to do with disciplining repressive political power by law, the point today is to discipline quite different social dynamics.” (Gunther Teubner, Societal Constitutionalism: Alternatives to State-Centered Constitutional Theory,  Storrs Lectures, Yale Law School, 2003/04, p.2).
To this he posited ”three secular tends subverting state-centered constitutional thought and making societal constitutionalism on a global level empirically and normatively plausible." (Ibid., 7). These he calls the "dilemma of rationalization," (ibid., 7-10), "polycentric globalization (ibid., 10-12); "creeping constitutionalization (ibid., 12-15).  Together, these trends are producing a move toward autonomous non-state communities, these multiple communities produce multiple and simultaneously applicable overlapping governance regimes (polycentricity) that when internally coherent can be organized using the forms of public constitutions now applied to the social (that is beyond the political) sphere.

These ideas were expanded by a group of scholars at  an international conference on Transnational Societal Constitutionalism, organized by Gunther Teubner and Anna Beckers organised . The conference was hosted by HiiL, the International University College of Turin (IUC) and the Collegio Carlo Alberto. It took place at the Collegio Carlo Alberto, Torino from 17 to 19 May 2012. The papers from that conference will be published by the Indiana Journal of Global Legal Studies. I considered the possibility of theorizing a dynamic element to societal constitutionalism in a paper originally titled "Collisions of Societal Constitutions: Hierarchical Power Arrangements and Horizontal Effects in the Management of Human Rights Regimes," that, when published, will be titled: Dynamic Societal Constitutionalism: Transnational corporations’ outward expression of inward self-constitution: The enforcement of  human rights by Apple, Inc. The abstract and introduction follow.  Comments and reactions most welcome.

Tuesday, July 16, 2013

The New Eugenics

The New Eugenics--The Private Sector, the University, and Corporate Health and Wellness Initiatives

At least since the Enlightenment, people charged with the management of others, and especially those charged with the operation of states and large economic enterprises, have sought to apply the principles of animal husbandry to the perfection of the human herd from which they extract productive work, or using the more traditional if feudal terminology, compulsory service, in return for a wage (if to employer) or the varied benefits of citizenship (if to the state).  
(Pix (c) Larry Catá Backer 2013)

A more scientific set of efforts to improve the human condition was organized by public and private elements in the most civilized states of the time, including the United States. The science was crucial, of course, to the legitimacy of the policy decisions extracted therefrom. The idea was to help create a better, healthier and improved human, more fit for the occupations to which he or she appeared to be intended in emerging 20th century industrial society, one in which these individuals were also expected to have a modest role in political governance. Emblematic were three International Eugenics Conferences were organized and took place in Europe and the United States in 1912, 1921 and 1932. To further these scientific pronouncements, so indisputable at the time, it was only necessary for the captains of industry and the leaders of state to turn science into policy for the aggregate welfare of the state and the industries that enriched it and those fortunate enough to work within these forward looking industrial and social complexes.  
This post considers the way the eugenics efforts of the early part of the 20th century now have reappeared within the structures of private markets globalization and the way they appear now to abstract and manage the creation of a "better  employee" through health and wellness programs.  Science combines with institutional needs to produce a usefully exploitable worker. . . and university professor!  Read more HERE.

Friday, July 12, 2013

Transparency International 2013 Global Corruption Barometer: The State of Corruption and the Legitimacy of Public and Private Actors

Transparency International has released its latest Global Corruption Barometer, drawing on a survey of more than 114,000 respondents in 107 countries.


(Cover Page Global Corruption Barometer 2013, Transparency International (July 2013))

The Press Release and the key findings of the Report are set out below.  The Report, worth reading in full may be accessed HERE.  The interactive website may be accessed HERE.

The Recommendations (Report Section 1.2)) suggest much about the state of democratic legitimacy in general, and the state of the legitimacy of public and private actors in particular:  (1) make integrity and trust the founding principles of institutions and services; (2) bring back the rule of law; (3) hold the corrupt to account; (4) clean up democratic processes; (5) give people the tools and protections to fight against corruption. Taken together, these recommendations suggest that, indeed, public institutions may be incapable enough of of policing themselves that their efforts to police their public loses sufficient credibility that the legitimacy of the state itself may, in extreme cases, be imperiled.  Yet Transparency International, like many NGOs, may fail to see entirely the consequences of its findings. The recommendations of the Report are made to governments.  But it is clear that governments cannot manage themselves.    In this environment, it is clear to see why private systems fo governance, and transnational standards now provide increasingly valuable alternatives to the regulatory systems of states. (e.g., Backer, Larry Catá, The Structure of Global Law: Fracture, Fluidity, Permeability, and Polycentricity (July 1, 2012). CPE Working Paper No. 2012-7; Penn State Law Research Paper No. 15-2012).

Thursday, July 11, 2013

Just Published: "The Cooperative as a Proletarian Corporation: The Global Dimensions of Property Rights and the Organization of Economic Activity in Cuba"

My article, "The Cooperative as a Proletarian Corporation: The Global Dimensions of Property Rights and the Organization of Economic Activity in Cuba" has just been published and will appear in Northwestern Journal of International Law and Business 33:527-618 (2013).

(Pix of a Cuban billboard from Cooperative Cuba is on the horizon, The Cuba Bug, Jan. 18, 2013)

The abstract, table of contents and Introduction follows.  The article may be accessed HERE or HERE.


Wednesday, July 10, 2013

Joel Slawotsky: "Corporate liability for violating international law under The Alien Tort Statute: The corporation through the lens of globalization and privatization"

Joel Slawotsky, of the Radzyner School of Law, Interdisciplinary Center, Herzliya, Israel, and the Law and Business Schools of the College of Management, Rishon LeZion, Israel has written an excellent research article: Joel Slawotsky. (2013). Corporate liability for violating international law under The Alien Tort Statute: The corporation through the lens of globalization and privatization. International Review of Law: Vol. 2013 2, 6, published online: 10 Jul 2013.

 (Pix (c) Larry Catá Backer 2013)
He considers ramifications of Kiobel v Royal Dutch Petroleum 569 U. S. ____ (2013) and concludes: "Under the no corporate liability view, sovereigns can outsource misconduct and escape liability. To prevent corporate liability would constitute a tantalizing incentive to engage in misconduct with the peace of mind no legal consequences will arise"  This is an important insight with significant ramifications.
The article may be accessed online HEREhttp://www.qscience.com/doi/pdfplus/10.5339/irl.2013.6. The abstract follows.

Sunday, July 07, 2013

On the Role of the Chinese Communist Party in Overseas Chinese Companies--A Preliminary Examination

With my research assistant Shan Gao (SJD Candidate Penn State) I have been exploring the role of the Chinese Communist Party within private and public companies in China. The object is to try to understand the way in which the separation of powers within the Chinese constitutional framework--administrative power in state organs and political authority in the CCP--may be contributing to a distinct evolution of relationships between traditionally constituted private and public power. 

 (From 驻坦桑尼亚使馆举办庆“七一”暨海外中资机构党建工作专题研讨会。(On Party building work overseas in Tanzania) June 29, 2012 (与会人员普遍反映,使馆组织的这次庆祝“七一”系列活动,形式多样,内容丰富,通过交流与学习,深刻认识到了海外党建工作的重要性,消除了党组织在国外可 有可无的模糊认识。吕大使的讲话,既有详实的数据和实例,又有理性分析,既提出了在坦中资机构的责任和使命,又指出了海外党建工作的要求和重点,使大家充 分理解了重视和加强海外党建工作的重要性和紧迫性,也使在海外工作的每一位党员清醒地意识到自己肩负的历史使命和重任。大家表示,一定会立足岗位、创先争 优,在不断提高生产效率的同时,加强和改进海外党的建设工作,树立良好的企业形象。))

This post considers the effect of this relationship between CCP and economic enterprises in Chinese companies operating outside of China.  This post includes a report by Shan Gao,  that proposes some preliminary ideas about the connection between state, Party and business in the operation of Chinese companies abroad.

Saturday, July 06, 2013

Ruminations 52: Surmizing Liberty and Equality in American Political Ideology

(Pix from Great Seal of the United States, State Symbols USA)

For American Independence Day I started considering the essence of American ideology.  (Democracy Part 28/Ruminations 51: On the Contradiction of Voting, Democracy and Revolution in the U.S. and Egypt).  But Americans don't think much in ideological terms; Americans think even less in historical terms, except perhaps to the extent necessary to reach back to a term useful in new ways for current debates. Americans invoke ideology instrumentally, especially in defense of their customs and traditions, or sometimes against them, in either case with sometimes profound effects.

So I have wondered how I might answer the following question were it ever posed by an individual who is not a U.S. national: What is the original American ideology? Equal opportunity (to become rich, important, or whatever one wishes to be) or equality (equal rights, or "deserving-ness") among people?  It is to an attempt to briefly answer this most profound set of hypothetical questions that this post now turns. The post is provided in English and Chinese.

Friday, July 05, 2013

Sara Seck on "Kiobel and the E-word: Reflections on Transnational Environmental Responsibility in an Interconnected World"

Sara Seck is an Associate Professor at the University of Western Ontario. Professor Seck's research interests include corporate social responsibility, international environmental, human rights, and sustainable development law, climate change, and indigenous law. She is particularly interested in international and transnational legal theory, notably the relationship between Third World Approaches to International Law (TWAIL) and international legal process theories that are informed by constructivist understandings of international relations.

Professor Seck has recently been considering ramifications of Kiobel v Royal Dutch Petroleum 569 U. S. ____ (2013) and the ways in which, for me, sheds light on a reality of the structure of international human rights and business that may be belied by the torrent of lofty language churning out of elite state and non-state actors. Professor Seck's essay, "Kiobel and the E-word: Reflections on Transnational Environmental Responsibility in an Interconnected World," follows.

 (Pix Reuters from Armin Rosen, "How Suing Shell Could Backfire on Human Rights Activists," The Atlantic, Nov. 17,  2011 "The U.S. court system is an imperfect recourse for human rights advocates, but if the Supreme Court affirms the ability to sue multinational corporations, it could become an important one. . . . If the Supreme Court sides against Kiobel, the scope of the Alien Tort Statute could severely narrow. " Id.)

Thursday, July 04, 2013

Democracy Part 28/Ruminations 51: On the Contradiction of Voting, Democracy and Revolution in the U.S. and Egypt

Form my American Independence Day post seven years ago I noted:
Every Independence Day, many Americans take their Declaration of Independence out of its shroud, admire it, proclaim their allegiance to its principles, congratulate themselves on their constancy in applying those principles, and then put the document away for another year. Many other Americans wrap themselves in the language of the Declaration, or at least in well chosen selected portions of that language, to push any one or more projects of change to the structure of the Republic or its policies. The Declaration of Independence remains one of the great revolutionary documents of our time. Its ideas remain as dangerous as they have been useful. (Some Thoughts On The American Declaration Of Independence And Its Irish/European Connections At Century's End, Law at the End of the Day, July 4, 2006)
I meant to reconsider the dynamic revolutionary potential of the Declaration of Independence and its tension with the stability producing Constitutional instrument adopted in 1789 that I had considered in an earlier essay: Larry Catá Backer, “Some Thoughts on The American Declaration of Independence and the Irish Easter Proclamation,” 8 Tulsa Journal of Comparative & International Law 87 (2000). 

(Pix From Scott Long to Facebook who wrote: "View of the approach to Tahrir by Qasr al-Nil bridge (from Cairo Tower) about an hour ago. I was on this thing an hour before that, and you could barely move or breathe." June 30, 2013)

For this 4th of July, I thought it useful to consider the dynamic and revolutionary foundations of the American Declaration of Independence on the day after the duly elected leader of the Egyptian state was removed by the military with the approval of masses assembled in urban public squares but against the will of others. ("President Morsi Overthrown in Egypt: Morsi Reportedly Being Held With Top Aides at a Military Facility After Army Suspends Constitution," Al Jazeera, July 4, 2013)).

Monday, July 01, 2013

Ordering Markets for Academic Knowledge Goes Global: Pablo Lerner on "Foreign Influences and 'Law Reviews Rankings' in Israeli Legal Scholarship "

The production of knowledge, especially among academics, is not simply offered for consumption.  Like all consumables, it is judged and valued in the market within which it is offered.  And again, like other consumables, the judging of academic knowledge products has become standardized, and its assessment routinized in ways that  both make it easier to understand what one is buying and also makes it more likely that all products will resemble each other. 

(Pix (c) Larry Catá Backer 2013)

One of the principle external consequences of this market for academic production, is that much of what is produced is predictably the same--and the market likes it that way.  Another is that producers are judged  (tenure and promotion) by their fidelity to the packaging (law review articles and books) and content standardization (its fidelity to the generally shared normative presumptions of the leading practitioners in the field) features of  knowledge commodities.  To that end, assessment structures are required not merely for the academic, but also for the secondary structures within which her status is itself assessed. (Cf. Backer, Larry Catá, Global Panopticism: States, Corporations and the Governance Effects of Monitoring Regimes. Indiana Journal of Global Legal Studies, Vol. 15, 2007). Within the law academy, principal among these are  systems for the review and ranking of law reviews--the publication spaces which serve as the market space within which legal academic knowledge is proffered for consumption. (Backer, Larry Catá, Defining, Measuring and Judging Scholarly Productivity: Working Toward a Rigorous and Flexible Approach,Journal of Legal Education 52(3):317-341 (2002)).

Pablo Lerner on the faculty at the College of Law and Business- Ramat Gan, School of Law will be presenting a very interesting paper, "Foreign Influences and "Law Reviews Rankings" in Israeli Legal Scholarship" at the Legal Education Mini Conference of the 10th Annual International Conference on Law 8-11 July 2013, Athens, Greece. Lerner suggests both the power of ranking in the construction of hierarchies of knowledge production and the disciplining of academics.  More importantly he suggests the way in which these systems are going global.  His suggestion for a "critical pluralist policy" is well worth considering carefully.

This post includes the Abstract, Background and Conclusion of that excellent paper.