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Abstract:
This article considers the ramifications of current efforts to internationalize the regulation of corporate social responsibility. The primary focus will be on current United Nations efforts to regulate transnational corporations through the development of its Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises With Regard to Human Rights. The Norms are critically important for two reasons. First, the Norms themselves point to the evolution of fundamental changes in global thinking about corporations, the character and source of their regulation that together will have significant ramifications for American domestic law. The Norms evidence an increasing taste, at the international level, for a shift from a private to a public law basis for corporate regulation. The corporate social responsibility debate is ultimately a debate about the fundamental character of corporations as principally private or public entities. Second, the development and continued life of the Norms and the ideas it embodies illustrate the development of a mechanics of interplay between national, international, public and private law systems in allocating, and competing, for power to regulate. The regularization and institutionalization of these mechanics evidence transnational law coming into its own as a separate field of power.

The article first briefly describes the traditional domestic context of the debates about so-called corporate social responsibility and its relation to basic issues of corporate governance. The article then turns to the changing context in which the Norms were conceived. A critical analysis of the Norms in this context points to potential critical changes in global consensus with significant ramifications for American domestic law. First, the Norms considerably alter the framework of the debate about corporate social responsibility. Corporations, seen as social, political, and economic actors, would serve not merely a broadened set of traditional stakeholders, but also the state and international community as well.

Traditional constraints on action against shareholders, and especially corporate shareholders, would be effectively disregarded for virtually all purposes. Second, the Norms enlist transnational corporations as agents of international law implementation, even against states that have either refused to ratify certain international instruments or have objected to the gloss advanced by international institutions. The Norms create an effective system for the implementation of international law norms through private law. The Norms are implemented through the law of contract between individuals rather than by treaty or state action. Because the Norms are based on a number of international instruments that have not been ratified by all states, the Norms use transnational corporations as a means of end-running states, and in the process, create the basis for the articulation of customary international law principles that will apply to states. Third, the Norms substantially alter the balance of power over corporate governance between inside stakeholders (shareholders, lenders, etc) and outside stakeholders (community, society, the state) by providing a substantial role to NGOs to monitor TNC conformity to the requirements of the Norms.

The article ends with a preliminary consideration of the Norms in a broader context. It analyses the Norms, not as substance, but as symptom of two great fundamental changes in the allocation of governance power in a global setting. First, it illustrates rearrangements in the relative power of systems of domestic, international, public and private systems of governance. Second, the Norms provide a template for the character and form of interaction and communication, among these systems of governance.

Corporate social responsibility, human rights, corporate governance, international law, comparative law, development

Abstract:
In response to a number of corporate scandals, the federal government enacted the Sarbanes-Oxley Act of 2002. The Act creates a framework for the oversight of the accounting profession and its practices by the government, imposes a number of certification requirements on corporate officers, restricts a number of corporate practices involving trading of securities by and loans to corporate officers, imposes reporting duties on lawyers, and provides protection for employees who disclose violations of law by corporate officers or directors. This paper explores some of the changes made by the Act in a practice context by discussing the way the Act might affect behavior in a number of business situations: people considering the offer of a position as a corporate officer; accounting firms seeking to perform audit and other functions for a corporate client; restrictions of loans to officers, including advances of fees pursuant to indemnification agreements; the adoption of financial codes of ethics; obligations of lawyers to report evidence of wrongdoing; the obligations of management to implement internal accounting and disclosure systems and to disclose wrongdoing; and protections for employees reporting wrongdoing; the new criminal penalties for wrongdoing by corporate insiders. The relationship of the provisions of the Act to state corporate law and the Act's inconsistencies, traps for the unwary and unanswered questions are also explored.

Abstract:
MiFID, the Market in Financial Instruments Directive, in force 1st November 2007, is hailed as the next great step toward market integration within the European Union. It is grounded in two key traditional policies of market regulation: surveillance and management. MiFID will exact a greater degree of transparency - paralleling American principles of market regulation. It will also require adherence to a best execution standard for all clients. Most analyses have focused on the costs and implementation of these requirements. Transparency is viewed as either a burden (or opportunity) because of the need to produce, keep and manage more data. Markets in information will surely grow. The "best execution" standards provide a greater means of standardizing industry practices - with the potential benefit to regulators to which power over market behavior should flow. This article will focus on the potential ramifications of the surveillance and regulatory aspects of MiFID in terms of nature of the character of the regulatory power in the financial products sector. Specifically the article examines the effects of the creation of the markets for information elaborated or augmented through MiFID in terms of the regulation of the behavior of participants in financial markets and the entities they serve. Particular attention will be paid to the effects of MiFID on public and private anti-corruption campaigns, the use of these regulations to influence the behavior of issuers and market middlemen, and the potential utility of these regulations to elements of civil society and the media in their campaigns for corporate and capital social responsibility.

securities regulation, MiFID, surveillance, financial services providers

Abstract:
This Article examines the development of a European framework for considering the law applicable to state private interventions in the market, both their own and those of other states through direct investment or through sovereign wealth funds. For this purpose, it closely analyzes the so-called golden share decisions of the European Court of Justice delivered between 2002 and 2007, through which the ECJ sought to apply the free movement of capital provisions of the European Treaties to vestigial issues of the construction of a post-socialist political economy in Europe. The Article then applies those insights in three distinct cases of sovereign participation in private market activity: the purchase of shares of a domestic company by a state; the purchase of shares of a foreign corporation by a state; and the purchase of shares by a multi-state sovereign wealth fund. It suggests the importance of the state aids jurisprudence of European Competition Law, a different result under American law, and the tensions inherent in the rising European jurisprudence with the parallel development of principles of foreign sovereign immunity.

The central point of the Article is this: Traditional choice of law analysis is grounded in a stubborn belief in the separability of public and private law, and positing issues of conflicts (and choice) of law as a central problem of private law for transactions among several jurisdictions. This grounding misses an important new development in conflicts (and choice) of law as well as the substantive consequences of those choices. That development, in turn, is founded on the growth of a new phenomenon, the increasing tendency of states to behave like private actors (participating in markets) rather than as sovereigns (regulating markets).

The general framework of the analysis has been choice of law related, but not in the traditional sense. Traditionally, the activities of sovereigns, either as regulators or participants did not raise issues of either choice or conflict of laws. But all that is changing. Modern globalization has effectively introduced a global advance toward free movement of capital and to greater protection of private activity from regulation. At the same time, states have sought to act more energetically as private as well as public actors. In a global legal order in which the value of state sovereignty has diminished and the cross border element of transactions has increased, states can extend their authority as private actors to an extent difficult when they seek to regulate as sovereigns. States privatize their traditional activities or seek to regulate indirectly by acting in markets.

It is in this emerging jurisprudential milieu that issues of choice of law arise - when states seek to participate in markets, does private or public law apply?; and whose law applies in any case? The essay offers no answers to these questions. It suggests that the European Court of Justice's golden share cases provides an excellent window on a difficult issue of choice of law, and a revolutionary one. The transnationalization of corporate law norms provides an opportunity not only to examine the changing landscape of choice of law in private law, but also the creation of a new set of vertical choice of law questions, and the substantive consequences of their adoption.

golden shares, sovereign wealth funds, state aids, privatization, sovereign immunity

Abstract:
This essay focuses on Wal-Mart's role in an important emerging phenomenon: the development of efficient systems of private law making by non-governmental organizations that sometimes supplement, and sometimes displace traditional legal systems. These emerging global systems of private law making are spearheaded by an important group of large multinational corporations like Wal-Mart. It arises in the shadow of, parallel with, and in response to the less successful attempts by national and international bodies to regulate economic behavior on a global scale. These systems are grounded in private law, contractual and business connections between the great multi-national corporations and the many entities with which they have business relationships. This essay concentrates on one aspect of those connections - supplier or supply chain agreements involving multinational corporations. It examines the way Wal-Mart is able to use those contractual relationships to legislate behavior among its suppliers with respect to product quality, working conditions for the suppliers' employees, ethical conduct, and similar matters. The particulars of those behaviors reflect Wal-Mart's perception of the tastes and expectations of its consumers, investors and the financial community. Those tastes and expectations, in turn, are formed by elements of civil society and spread by elements of the media. Civil society elements serve not only to form consumer tastes, but also to develop Wal-Mart's specific set of behavior norms and then independently monitor compliance by Wal-Mart and its suppliers with their obligations. The media independently serves as the source of legitimacy and the conduit through which the results of civil society monitoring efforts, and the efforts of Wal-Mart to correct these breaches are transmitted. The media also serves as a forum through which consumer and investment tastes in behavior are developed. Together, multinationals, elements of civil society, the media, and the consumer-investor community constitute the elements of an autonomous system for the efficient regulation of economic behavior on a global scale that may contribute to the development of functionally differentiated and partial global systems of common law beyond the state.

Wal-Mart,globalization, private law, civil society, jordan, germany, suppliers, multinational corporations

Abstract:
Regulatory power is increasingly exercised by autonomous non-governmental organizations. Though not lawmaking in the accepted sense, the regulatory power asserted has come to be asserted within the framework of institutionalized and self-contained systems that exercise state functions outside the state. At the same time, public law has sought to assert a measure of legislative control over private regulatory systems, especially those that seek to impose a harmonized ad institutionalized regulatory framework across borders. Among the most dynamic players in this are has been multi-national corporations. From the perspective of public law, the objective has been to develop a network of regulatory systems through which state actors can control such entities. From the perspective of the multinational corporation, the objective has been to develop governance systems of its own to regulate the factors of production of wealth wherever located. My object in this essay is, first, to describe the traditional public law regulatory framework and suggest its limitations and failures of perspective. Second, I will illustrate the response of multinational corporations to these limitations and failures. For this purpose I will focus critically on the institutionalized regulatory framework created by Gap, Inc, to regulate its global supplier network, a regulatory framework in which the state is substantially absent and the center of regulatory activity shifts to the corporation. Lastly, I will posit the rough contours of a theory of soft public regulatory power in private law, its connection to the basic premises of contemporary economic globalization, and suggest some consequences for the actors principally and those left out.

multinational corporations, transnational law, private international law, soft law

Abstract:
Since the middle of the last century, the ideal of constitutional legitimacy has been grounded on the foundation of the concept of the rule of law. The rule of law is usually understood in two senses: first, as embracing firm limits on an arbitrary use of power, that is, of the use of the state power when not grounded in law (process aspect); and second, as vesting the state with a critical role as guardian of a set of foundational communally embraced substantive norms that are to be protected and furthered through the use of state power grounded in law (substantive aspect). The Chinese Constitution of 1982 has, as a formal matter, embraced the idea of the rule of law in its process aspect. The Preamble declares that the Constitution is the fundamental law of the state and has supreme legal authority and Article 5 as amended in 1999 emphasizes the People's Republic of China practices ruling the country in accordance with the law and building a socialist country of law.

However, it is more difficult to discern even a formal adoption of the rule of law in its substantive aspect. As a consequence, outsiders have questioned the fidelity of the Chinese state to the rule of law because of the control by the Chinese Communist Party (CCP) of the apparatus of law making in China. In one sense these arguments can be reduced to a criticism of Chinese constitutionalism as illegitimate because it lacks a basis in moral and ethical norms outside of the personal desires of the leaders of the CCP.

This paper suggests that traditional criticism misperceives the fundamental nature of Chinese Constitutionalism as it attempts to fashion its own distinct socialist rule of law constitutionalism. Fundamental to this socialist rule of law is the core premise the connection between the apparatus of the state (its institutions) and that of the Chinese Communist Party (as the Party in power). The paper examines the way the normative basis of this socialist rule of law has been advanced through the use of increasingly sophisticated and complex specific ideological frameworks into the constitution. This may suggest a greater willingness to advance the implementation of ideology, and the substantive structure it represents, through state power grounded in law. However, because the norm structures of Chinese ideology articulated through the CCP remain either alien or antithetical to their usual Western counterparts, they remain opaque outside of China.

To examine the parameters of this possible shift in Chinese constitutionalism, the paper will examine one element in this process of incorporation - the inclusion of sange daibiao (the 'Three Represents') into the governance structures of the CCP after 2000 and the Chinese Constitution after 2004. Like the earlier constitutional assimilation of Deng Xiaoping Theory, the adoption of sange daibiao may serve, at least as a formal matter, to further incorporate substantive rule of law elements into Chinese constitutionalism. Sange daibiao illustrates the way in which China is seeking to construct socialist rule of law through a commitment to an institutional structure of the state in which the CCP serves not as a mere Western style political party but as an integral organ of state power. The focus is on the reality of the CCP within the state. Sange Daibiao provides an ideological basis, a deep constitutional foundation, for the position of the CCP at the center of the constitutional apparatus of the Chinese state. But it does more than that - it also provides the basis through which the rule of law, as a framework for the proper relationship between state institutions (representing the collective) and the individual (as an instrument of that collective). As developed by the organs of the CCP, it is clear that Sange Daibiao can provide the principles through which the framework of commonly understood rule of law constitutionalism can be adopted with Chinese characteristics.

China, constitution, Sange Daibiao, Three Represents, Ba Rong Ba Chi, rule of law

Abstract:
With the adoption of the Iraqi and Afghani constitutions in the early 21st century, after substantial American prodding, constitutionalism has entered a new phase. This new phase upsets the system of foundational transnational constitutionalism, grounded in a secular, human rights values maximizing, universalist standard, that appeared with the adoption (after substantial American prodding) of the German Basic Law and the Japanese post war constitution. This system of transnational constitutionalism shifted authority for structural limits on national constitutional expression from individual states to the community of nations acting through the international system elaborated after 1945. But half a century later, this jurisprudential basis of global transnational constitutionalism is in flux: and authority over norm setting is contested. The foundations of a universal constitutionalism are in flux. At the beginning of the 21st century the system of secular, political, international norms-bounded constitutionalism - that great political triumph of the Allied Powers after WWII - is being challenged from a variety of different directions. This paper focuses on one of the most important vectors of these challenges of the early 21st century: the challenge by transcendent, universalist, autonomous, religious communities and their efforts to displace secular universalist normative frameworks with transcendent religious frameworks no less universal. The paper starts with a brief description of the constitutionalist framework prior to the Second World War. The paper then looks at the contestation of this framework and the great post-WWII Western project of contextualizing constitution making within limits derived from international law, norms or standards. The focus then turns to the great opposing constitutionalist system, examining the rise of religiously based or theocratic systems to challenge the orthodoxy of the secular post-WWII supra-constitutionalist project. The paper ends with end with a look to the implications of these seismic movements in global constitutionalism both at the level of constitutional theory, and at the as-applied level of the law of the constitution now possible within states, especially states without homogeneous populations. It suggests that differences among constitutional orders have now moved up from the state to the international level. Comparative law ought now to be concerned not solely with distinctions among states, but also with distinctions among global systems realized in national legal orders. It also posits potential implications for American Religion Clauses jurisprudence, with an eye to the possible construction of a secular theocratic constitutionalism, or for a greater privileging of religion within the American political community.

constitutionalism, religion, islam, christianity, rule of law, transnaitonal law, Iran, Iraq, Afghanistan, Germany, Japan

Abstract:
Director independence rules are an important component of the duty of loyalty as both a substantive standard and a standard of review. To apply the director independence standards, courts necessarily invest relationships with legal consequence beyond the actual relationship itself. Messiness, for example, can be tidied by taking refuge in formal structural economic analysis. Analysis can also be simplified by taking refuge in stock stories and assumptions. Both, it seems, is what the Court of Chancery did in the Disney litigation in which shareholders challenged both the very lucrative employment agreement awarded to Michael Ovitz to become president of the Walt Disney Company in 1995 and the even more generous terms under which that contract was terminated in 1996. The Disney litigation, however, ought to have provided a rich vehicle for the examination of reality beyond formality and stock assumptions. This Article focuses on the application of the independent director standard to one director in particular: Reveta Bowers, an African-American female and the principal of the school that Michael Eisner's children attended. What makes Ms. Bowers particularly interesting is the peculiar way in which the Chancery Court sought to apply the director independence standards to her: the Court of Chancery effectively rejected plaintiffs' attacks on her independence on public policy grounds, that is, were Ms. Bowers' independence effectively challenged, 'regular folks' would be unable to serve on boards of directors of corporations like Disney. Though that analysis has attracted little attention among legal academics, the Chancery Court's application of a peculiar construction of the director independence rules for Ms. Bower's benefit opens a window to the way corporate law intersects with social assumptions of race and class expressed as public policy. The inherent difficulties arising from that intersection and the resulting contradictions of the current Delaware approach to directorial independence in the face of competing policies - often unwritten, and not necessarily derived from legislative pronouncements - suggest that the current Delaware independence standard is of limited value in duty of loyalty cases. These deficiencies, however, might be overcome by incorporating into the narrow formalism of the current standard some of the relational insights of critical race and feminist theory. Relational analysis exposes the subtle ways in which class, gender, and race affect the application of standards in fact driven contexts-like determinations of director independence - and may help courts and litigants strive for fairer and more realistic results. Emerging from this analytical approach is a fundamental notion: subordination and dependence tend to be the critical factors in determining the independence of relationships, even those considered primarily economic relationships. This is a very different analysis from that of Vice Chancellor Strine in Oracle, an approach criticized by the Delaware Supreme Court. In place of the current Delaware analysis, this Article suggests an alternative approach, the touchstone of which is subordination and burden shifting. Subordination would encompass all hierarchical and affective relationships. Subordination should serve as both a substantive rule-subordination destroys all claims of independence. Subordination should also serve as a procedural rule-establishment of a relationship of subordination ought to shift the burden of proving independence from the plaintiff to the director seeking to establish independence for purposes of validating board of directors' actions. The Article ends by assessing the utility of the proposed subordination-relational standard. Application of the standard to the facts of the Disney litigation demonstrates the ways in which the alternative standard yields different results. Had the Chancery Court applied a subordination based relational standard it would have been far more likely that a greater number of directors, perhaps even more than a majority of directors, might have been found not to be independent. Application of such a standard might have avoided the approval of the Ovitz Employment Agreement as ultimately signed, the invocation of the termination provisions as ultimately approved, or the litigation over that agreement that sapped the resources of the corporation from 1997 through 2005. And the price to be paid would have been small enough: ensuring that directors actually approving the transactions could meet the more rigorous and legitimating standards of a subordination based relational approach to independence.

Duty of loyalty, director independence, fiduciary duty

Abstract:
Recent legislation - Section 10A of the Securities Exchange Act of 1934 for auditors and Section 307 of the Sarbanes-Oxley Act for lawyers - has imposed on corporate outsiders certain duties to monitor unlawful activity within a corporation, and to report that activity to designated corporate actors. It is generally understood that the monitoring obligations of lawyers and auditors extend to corporate activity which might constitute a violation of federal securities law and state fiduciary duty standards. But do the monitoring and reporting obligations extend to unlawful activities beyond the securities laws - for example to violations of the laws prohibiting racial, religious, ethnic, age and sex discrimination? This article suggests that a strong set of arguments exist to support the answer - yes. The article first demonstrates that the monitoring rules create a broad obligation to detect and report that extends to any violation of law that could have a direct or indirect material effect on the financial condition of the corporation. The article then suggests that the nature of the detection and reporting obligation is active - requiring auditors and lawyers to implement procedures for detecting violations. The failure to comply with the detect and report obligations can contribute, under certain circumstances, to auditor or lawyer liability as a principal under the securities laws, to liability as a principal under the discrimination laws, and to greater exposure to discovery from private plaintiffs. The article ends with an extended hypothetical, involving outside counsel, auditors and a client corporation engaging in potentially discriminatory conduct, in which the insights developed in the article are applied.

Sarbanes-Oxley, Securities Exchange Act, section 10A, corporate securities, securities fraud, auditing, professional responsibility, discrimination

Abstract:
I offer here an extended Nietzschean joke: the necessity of error in the constitution of individual authority and communal power. Communities - the nation-state, religious communities, terrorist organizations - are arranged through a cultivation of error: mistaking causes for effects, assuming a false causality, creating an imagined causality, and assuming a free will. These errors of causation, these miscausations, have been offered as a means through which leaders or leader classes - the judge, the priest, the king, the president, the charismatic leader of violent sub-national communities - maintain authority. In contrast, the community itself, those who are led, dominated, controlled, manipulated, are considered only in the passive. They are the victims, the weak-willed, the powerless, the sheep, the herd. They obey because they must. But authority is not power, and reality is more subtle and layered than what appears on the surface of relationships. Just as the priest, the leader uses miscausation to create the illusion of power and so protect and expand individual authority, so the community uses miscausation to assert communal power - over the priest, the president, the judge, the leader - through the illusion of weakness. The strong leader does not usurp power from the communal weak; the herd, for its own preservation as a herd, demands the appearance of overlordship of the leader. The cult of the leader, of the individual solely responsible for her acts, and of communities consisting of passive amalgams free from responsibility, serve as the foundation for modern human rights and humanitarian law. But the cult of the leader itself constitutes a titanic act of miscausation in four parts: (1) that communities are protected not because they are weak, but because they are strong, to protect the community against blame for action committed in its name by its leaders; (2) that the leader is dependent on the community; the leader acts in conformity to the wishes of the people; (3) that the leader then serves as proxy for the community; the doctrine of personal responsibility for communal acts protects a community by sacrificing its leaders for acts of communal wrongs; and (4) that the community, the sheep, are in actuality the Shepherd in a world arranged to minimize the costs of inter-community conflicts for power. For modern political and legal theory, this misunderstanding unveils the perversity of the logic of grounding modern international humanitarian law in the personal responsibility of individuals for their acts. I will offer an example - the way international humanitarian law, used to condemn punitive house demolitions in Israel, serves to subsidize the maintenance of the cultural production of hatred which constitutes communal permission to engage in individual acts of violence against not Israelis, but Jews. Communities ought to bear responsibility, ought to pay, for the socio-cultural subsidy of hatred. To that end, I suggest a tax on culturally cultivated hatred assessed against a community that subsidizes hatred leading to acts of individual violence.

international law, jurisprudence, law and humanities, Geneva conventions, house demolitions, collective punishment

Abstract:
This essay explores consequences flowing from the imposition of increasingly significant governmentally directed and enforced surveillance obligations on private actors within the economic sphere. The emerging public-private regime, exemplified by the Sarbanes-Oxley Act, has more clearly revealed its character: surveillance and control of the market and the firm by government in the name, and on behalf, of the private stakeholders traditionally charged with the development and protection of their economic arrangements. Surveillance is privatized -- outside directors, auditors, outside counsel, and corporate employees now increasingly serve as the eyes and ears of the state. Enforcement is nationalized. In lieu of private action by stakeholders, the state offers 'fair funds' reimbursements and state enforcement. The focus will be on the observer (who is required to survey), the observed (who must be monitored), the purpose of the surveillance (what must be monitored), and the persons or entities to whom the monitors must report. The essay then sets out three sets of archetypal factual narratives, the consequences of which are being currently litigated. The first relates to Chancellor Corp., the second to Solucorp Industries, Ltd., and the third to part of the Enron litigation. Using these as archetypal narratives, the essay extracts a series of norms for behavior applicable to both observer and observed. These are the beginnings of a system of standards ultimately governed by and beholden to the state. The essay then turns to an examination of the state, lying at the very center of this web of surveillance. First it analyzes the role of the state as enforcer as evidenced by the state's role in the cases considered. It considers the state as source of redress to stakeholder and market as evidenced by the SEC's campaign to widen its legislative authority to seek damages from wrongdoers and return the recovered funds to investors. Second, it examines the impact of SOX in the context of post-September 11, 2001 policies. In particular, it suggests that the elevation of monitoring as a significant state policy after September 11, 2001, may explain certain parallels between SOX and the anti-terrorism provisions adopted in 2001 and 2002. The essay ends with a preliminary consideration of the consequences of the construction of this great panoptic system of disclosure, in which individuals, firms and markets form the periphery and government lies at its center, and suggests that what may be emerging is a system of surveillance mercantilism.

monitoring, lawyers, auditor, federal securities law, sarbanes-oxley, detect and report

Abstract:
The character of global regulation has changed dramatically over the last decade. Today, multinational corporations sometimes assert substantial regulatory power across borders, and states sometimes enter markets as participants rather than as regulators - especially when they engage in economic activity outside their borders through sovereign wealth funds (SWFs). In both cases the current transnational ordering has settled on voluntary principles based approaches to regulation. SWFs are controlled by states but seek to participate in private markets in the same way as private investment vehicles. But the difficulty has been the need to overcome the inherent sovereign character of state investment, central to the definition of SWFs. SWFs thus proceed from definition to conundrum. If SWFs are grounded in the reality of their formal connection to states, and if states are deemed sovereign in their actions, then it might be reasonable to assume that such funds could not be treated like private investment funds. To bridge that gap, it was necessary to find a way to disconnect SWFs from the state and sovereign activity, and to model private activity in a way that made it possible to construct a set of behavior principles that might produce an equivalence between SWFs and private investment vehicles. The first was accomplished by creating a functional distinction between state and SWF, a distinction unnecessary for traditional sovereign investment. The second was grounded in the presumption that there is a way of distilling the essence of private investment behaviors sufficiently precisely to distinguish those behaviors from sovereign conduct. Both are nicely captured in the Santiago Principles. Both are problematic either as concept or in application. This paper looks closely at one example of this rising phenomenon - the socially responsible sovereign wealth fund. It focuses on a close review of one of the most influential funds, the Norwegian Government Pension Fund - Global (Statens pensjonsfond - Utland). It is among the largest and most influential SWF in the world, and the largest in Europe. The Norwegian SWF provides a particularly useful case study of the issues that are now at the center of reconceptualizations of the relationships between state and corporation, between economic and political regulation, between national and transnational legal frameworks, and between public and private legal regimes. The paper first describes conceptual and regulatory frameworks on which current policy discussions of sovereign wealth funds are undertaken. It then turns to the Norwegian funds, focusing on the history of the Norwegian fund, its legal structure and the development of its investment principles. It then looks to the way those principles were used in two distinct areas - the creation of incentives to produce changes in the behavior and culture of corporations and the response to the global financial crisis of 2008. The paper suggests the political character of these activities. It then examines these actions in light of investment behaviors of socially responsible private funds, on which the Santiago Principles framework are grounded. These entities operate in ways that would be considered political, and suspect under the Santiago Principles, were they sovereign rather than private investment vehicles. Thus, problem is not that the Norwegian SWF advances political agendas through interventions in private markets, but rather that private investors engage in substantially similar conduct. The Norwegian SWF suggests that the emerging framework of SWF governance, grounded on an assumption that a state organization formally public but functionally private, acting like an idealized private investor does not work either for private investors who seek to use investment for political ends or state investment entities that purport to refrain from that sort of activity.

sovereign wealth funds, Santiago Principles, Norway

Abstract:
It is well known that soft international law has begun to provide incentives for the management of a values-based behavior structure for multinational corporations. This paper will argue that hard international law can serve as a vehicle for the enhancement of a market environment in which corporate stakeholders, and principally consumers and investors, might incorporate information about corporate social behavior in their consumption and investment decisions. Specifically, a mandatory system of transparency and disclosure at the international level may provide an efficient means of creating incentives for moral behavior without the need to incorporate any one version of appropriate manifestations of social responsibility on corporate entities. International law can thus institutionalize, within a rule of law context, important incentives for appropriate behavior without incorporating any particular set of public values and provide a legal framework through which stakeholders can manage the public or social behavior of multinational corporations. The paper starts with a contextualization of the regulatory problem: the extent of the responsibility of corporate actors for the working conditions of indirect employees. Neither domestic nor international law has been much help. Law has taken only some very tentative steps to recognize or further the rise of this moral sense of obligation. The rise of the much-touted corporate social responsibility movement has resulted in the proliferation of a number of responses at every level of governance. Yet, virtually all of these responses have been in the form of soft law, usually voluntary codes that are not enforceable by any political organization, each reflecting the values of their proponents or stakeholders. Still, the obligation can be given legal effect through contract and enforced through regimes of monitoring and disclosure. The paper then considers the way in which hard international law might enhance this framework in which markets determine the substance of appropriate behavior which corporations are willing to embrace. For the purpose, the paper proposes the creation of a global system of disclosure and transparency. The object of these mandates would not be to establish a definitive set of behaviors, but rather to establish a framework within which corporate stakeholders-consumers, investors, labor, and others - could adjust their relationships on the basis of the behavior disclosed. The paper ends by pointing to the sources for such international lawmaking that already exist.

corporate social responsibility, disclosure, monitoring, multinational corporaitons, transnational corporations, international law

Abstract:
The contours of the debate about the effect of globalization on the global state system are well known. Perhaps less well understood is the way in which major views of globalization all tend to posit the end of the state system. The result does not change even when considering state friendly conceptions of globalization. More interesting still is that even the great anti-globalization perspectives do little to defend the traditional state system. Whatever the form of opposition, each also essentially posits a global system in which the state plays a subordinate role. For purposes of this paper I broadly describe three views of the nature of globalization. The first proceeds from the logic of the so-called Washington Consensus of private economic transactional neo-liberal globalization. The second looks at economic globalization from a more traditionally state-centered perspective. The third embraces the analytical framework current in certain parts of the developing world and among some major Western religious institutions in which it takes the form of a moral critique of Western led economic globalization. I will show how all three ultimately posit the same consequence for state systems as the foundation of world order - a replacement of the traditional state system as the foundation of law making in the global system of political governance. Each differs only in the nature and form of the system that will replace this system. In the first view all states ultimately suffer the same fate, though perhaps not all at the same time. Political power becomes more diffuse and shared among political, economic, religious, scientific and other communities. The second and third produce a perversion of the state system with a few hyper-states acting as the driving force of international norm making over an amalgamation of other actors, including states, and other political, economic, scientific, religious and related communities. All perspectives also imply that an Aristotelian form of aristocratic governance will result at the global level beyond the nation-state level - in which a few states will effectively govern for the community of nations, subject to a set of norms that transcend national boundaries. But the processes I describe, which in every variation appears to claim the state as a casualty of globalization, is both messier and more complicated than the three models of crisis suggest. I end this essay with a nod to the messiness. Simultaneously developing alongside globalization, or surviving its ascendancy, are other systems incompatible with and likely to engage in conflicts for dominance with both the current system and the ascending system of globalization. These threats arise primarily from three sources. The first include alternative universalizing systems of global organization, based principally in religion. The second include universalizing systems in decline, principally the Marxist-Leninist vision of the past century. The last include anti-universalizing systems and anarchistic systems, from anti-globalization groups, to eco-activists, to old-fashioned conservatives. It seems that the only defense of the traditional state systems is essentially reactionary and increasingly anachronistic. The consequence for the traditional state system appears to be the same, whatever the form of globalization embraced, from the most benign to the most aggressive, and whatever the character of opposition to globalization endorsed. The attachment to a particular nation-state bounded by a finite territory no longer appears to be the critical factor in the debate about globalization.

globalization, state system, Washington Consensus, global governance

Abstract:
The 20th century has seen a fundamental shift in the ways in which constitutions are understood. By the middle of that century a new sort of constitutionalism emerged, rejecting the idea of the legitimacy of every form of political self-constitution. The central assumptions of this new constitutionalism were grounded in the belief that not all constitutions were legitimate, and that legitimate constitutions shared a number of universal common characteristics. These common characteristics were both procedural (against arbitrary use of state power) and substantive (limiting the sorts of policy choices states could make in constituting its government and exercising governance power). These process and substantive norms were, in turn an articulation of a "higher law" of the community of nations, reflecting a global communal consensus evidenced in common practice or international agreements. The authority and legitimacy of this global secular transnational constitutionalism has not gone unchallenged. On the one hand, state power traditionalists reject the notion of extra-national normative constraints on constitution making. On the other, there has been an intensification of challenges from universalists of different schools, from natural law theorists to pluralist constitutionalists. Among the most potent of these groups have been religious transnational constitutionalists who have argued that one or another of the current crop of universalist religions ought to serve as the foundation of normative disciplining of constitution making. But do these movements represent constitutionalism? If it does, then what are its characteristics? This article examines these questions from the context of the most developed form of theocratic transnational constitutionalism, that of Islam. The object will be to examine the great variation of Islamic and Islamic influenced constitutions to see if these represent the emergence of a constitutionalism with characteristics that can be clearly articulated, that it is possible within this system to distinguish between legitimate and illegitimate constitutions, and that there are characteristics of this constitutionalism that clearly distinguish it from secular transnational constitutionalism. The article starts with a critical examination of the main currents of constitutionalism. Section II focuses on an extraction of an understanding of the concept of constitutionalism as system and its synthesis into a working definition of constitutionalism in general and transnational constitutionalism in particular. Section III extracts from this examination a possible set of characteristics of legitimate Islamic constitutionalism, distinguishing Islamic constitutions from Islamic constitutionalism. Section IV then applies this understanding of theocratic constitutionalism to the constitutional "families" of religious constitutions in which Islamic law has become part of the structural architecture of the constitution itself, suggesting points of convergence and divergence with the values and norms of secular transnational constitutionalism.

theocracy, constitutionalism, Sri Lanka, Malaysia, Iran, Pakistatn, international law, human rights, religion

Abstract:
This paper examines the way that the traditional notion of odious debt as a method of repudiating sovereign debt may undergo a conceptual revolution, as it changes focus from the illegitimacy of governments obtaining loans, to the illegitimacy of the systems through which such loans are made and enforced generally. The paper starts with a consideration of the odious debt doctrine as traditionally applied. It then considers the ways in which the traditional expression of the doctrine have been expanded over the last century. There have been attempts to rework the definition of non-legitimate use, grounded in various theories of democratic government and popular sovereignty (essentially grounded in the application of a "would the people have consented" standard): violations of basic human rights, corruption, criminal activity, have all been advanced as adequate grounds for applying the doctrine. Lender due diligence has also become a dynamic area as a general consensus moves from a regime of actual knowledge to one predicated on surveillance and intelligence gathering: lenders ought not to profit from their complicity in subsidizing the illegitimate governments or fund use. This doctrine has served the developed world, and its globalized lending institutions, well since the beginning of the 20th century: from proving the generosity of the developed world through discretionary debt forgiveness programs loosely based on odious debt principles, to the use of odious debt style principles to launch global anti-corruption campaigns. However, developing states have come to see another basis for application of odious debt, one that turns the traditional analysis on its head. One of its principal architects has been Fidel Castro. Focusing primarily on the writing of Fidel Castro, as an important figure in shaping and lending legitimacy to these transformations, it suggests the way the doctrine of odious debt, once so well tied to municipal law and sovereign rights and obligations of states, could be focused on the institutionalized public and private international systems of capital markets. Since 1985, Castro has advanced the idea that this paper labels "systemic odiousness" as a basis for repudiation. Going forward, sovereign lending ought to be governed by an international human right of development with the goal of eliminating power disparities between states and reducing the political, social, and cultural effects of power disparities in the current regime of globalized financial markets. The paper suggests how, for Cuba, this produces a curious result. It is possible that a successor regime to that currently installed in Cuba would argue that it has the right to avoid all of the debts of the prior Marxist-Leninist state on traditional odious debt grounds, while, at the same time, adhering to the odious debt principles of that discredited regime, it attacks the legitimacy of the current system of state lending on odious debt grounds. The paper ends with a preliminary consideration of ramifications. While a muscular doctrine of odious debt has extraordinary potential as a means of reshaping the sovereign debt markets, it also has the potential to strengthen sovereign lending as well, lending that may ultimately be even more profitable for the institutions of capital generating states. The doctrine of systemic illegitimacy in the sovereign debt/odious debt context will be good for business — that is good for the business of modern so-called neo liberal global capital markets in general, and for the business of lending to sovereigns, in particular.

globalization, sovereign debt, odious debt, World Bank, Cuba, transnational legal systems

Abstract:
Academic and policy engagements with constitutions and constitutionalism have largely been built around unstated frameworks within which legitimated activity can take place. The essay suggests both the disorientation of much of the discussion and proposes a n ideological framework that captures the assumptions about which constitutionalist discourse has evolved. Constitutionalism at one time could be said to involve the study of the peculiarities of the unique domestic constitutional framework through which government was constituted and power institutionalized. No longer. This essay examines the current discourse of constitutionalism. That discourse reveals the current dynamic character of the concept. The old consensus of conventional constitutionalism, that constitutions are legitimately grounded either in domestic law and the unique will of a territorially defined demos, is now challenged by a view that constitutional legitimacy requires conformity with a system of universal norms grounded in an elaboration of the mores of the community of nations. Traditional nationalist constitutionalism looks inward for its ideology as well as its yardstick for measuring others. Transnational constitutionalism looks to the common constitutional traditions of the community of states buttressed by international norms and organizations. The prize for both constitutional traditionalists and transnationalists is control of the mechanics for classifying constitutions, judging them legitimate and creating systems to enforce common conceptions of valid constitution making through international law. Yet, both rising constitutionalist discourse, and the development of values rich governance systems suggests that an animating ideology also underlies constitutionalism as a whole, a broader and more basic ideology than those that underpin the particular values variants of nationalist, transnational, theocratic and rationalist constitutionalism. The object of this essay is to draw from out of current practice and discourse a working description of the meta ideology that is constitutionalism in general. That definition suggests the characteristics of constitutionalism as originating as a system of taxonomy and legitimation that is grounded in a set of normative assumptions about the meaning and purpose of government. These basic presumptions produce an ideology of substantive and process limitations on state power the content of which is the usual focus of constitutionalist debate. The constitutionalist presumptions are rarely contested but serve to divide groups of states on the basis of the sort of normative presumptions on which the state is organized-nationalist, transnational, natural law, theocratic or Marxist Leninist presumptions. Constitutions without legitimacy are no constitution at all, and legitimacy is a function of values, which in turn serve as the foundation of constitutionalism. It is through the construction of those values frameworks that international law has come to play an increasingly important role.

constitutionalism, international law, jurisprudence, theocracy, Marxist Leninist constitutions, U.S. constitutional law

Abstract:
The essays in this book highlight the most important ways in which domestic, international, public, and private legal systems interact with each other. The initial essays provide a theoretical overview of the study of legal harmonization - that is, of the nature and character of communication, accommodation, amalgamation, or resistance among legal systems. These interactions occur within horizontal relationships, between political institutions operating at the same level of authority. Vertical relationships between political institutions whose relationships are hierarchical have given rise to different patterns of interaction. New legal orders are being created through the adoption of international legal instruments that may reach nation-states, private entities, and individuals. Each has the potential for significantly affecting the sources of authority over public and private actors. Other essays illustrate the many ways in which communication between legal systems produce very real, if very different, effects across the world. A descriptive Preface, table of contents, contributor list and table of cases is included for download.

harmonization, comparative law, multinational corporations, Islamic law, European Union Law, Indian Law OAS

Abstract:
Today, an economic enterprise can insulate its assets within itself. It can disperse its assets among enterprises, each an independent juridical person. It can exist independent of its shareholders. It can own itself. It can exist independent of the regulation of any singular political community. It can choose the set of regulations to which it wishes to subject clusters of assets. It can regulate itself. For the economic enterprise able to disperse assets and operations worldwide, for the enterprise that can access capital markets throughout the globe, the essential role of law of economic organizations appears to be to enhance the ability of the multinational economic enterprise to become an autonomous and self regulating entity. This short essay serves as an introduction to the construction of a theory of institutional autonomy from out of a century of debate about the nature of economic entities. The essay first re-examines the asset partitioning ideas of Hansman and Kraakman the context of the multinational enterprise. It suggests that asset partitioning can be usefully understood as fleshing out the contours of the way in which organizational law shapes enterprise autonomy for creditors. The essay then re-examines the corporate personality analysis of Iwai to suggest that in a global context, Iwai's insights suggest the possibility of enterprise autonomy from shareholders. The essay then considers the perverse utility of the ancient territorial principle and the principle of regulatory hierarchy. Applied in a global context these principles suggest the possibility of enterprise autonomy from the state. Pulling these three puzzle pieces together, the essay suggests that the nexus of multinational enterprises and globalization provides a foundation for the emergence of self-conscious autonomous self-regulating economic entities.

asset partitioning, limited liability, multinational corporations, regulation, comparative law

Abstract:
This paper examines two fundamentally different perspectives when nation-states participate as creditors and debtors. The issue of sovereign debt - its character and effect - is really part of the much larger battle between two fundamentally opposed visions of the nature and character of the nation-states in general, and debtor states in particular, and of the global system that maintains the market for such transactions. The dominant vision, firmly grounded in private law, posits that growth can occur only in a tightly integrated global economy founded on trade liberalization, privatization, and macrostability. When the state fails to pay its debts, it ought to be treated like any other failed corporate enterprise - a stay on debt collection efforts, broad enforcement of absolute priority, creditor approval of the proposed reorganization plan, and well protected new interim financing pending restructuring. Opposing the dominant vision is an anti-corporatist approach grounded in public law and the subordination of economics and markets to political control in the furtherance of deliberate state public policy and planning. States fail because it is in the interest of dominant states to use sovereign debt as a means of perpetuating subordination and a hierarchy of power among states. When a state fails to pay its debts, the focus ought to be on the creditor, and the fairness of the debt in terms of the larger public policy concerns - development, and the maximization of living standards for all individuals through state planning. The paper first explores the normative foundations of each vision and its consequences for dealing with the borrowings of nation-states. For this purpose the paper concentrates on two actors who most starkly highlight the opposing views. For the dominant vision is focus is on Anne Krueger, the First Deputy Managing Director of the International Monetary Fund, and specifically on her proposal to create a bankruptcy model for sovereign state debt restructuring. For the opposing vision the focus is on Fidel Castro Ruz, the President of the Republic of Cuba and specifically on his elaboration of a critique of the dominant vision of global economic development championed by the IMF. These actors nicely distill the positions subject to analysis in this paper. The implications of each for the shape and character of international regulation, and of the state as an actor in the context of the emerging global system of economic and political regulation, are then explored. In particular, the paper contextualizes the Castro vision within the developing positions of a number of public sector institutions, from Latin American opposition ot the Free Trade Area of the Americas, to its use by the United Nations Human Rights establishment in Geneva to regulate transnational corporations, to its use by non-state actors in the West, particularly the Roman Catholic Church, to challenge, from within the West, the market driven system elaborated through the IMF and well illustrated by Krueger's proposal for a corporate bankruptcy style state discipline overseen by international regulatory agencies.

Sovereign debt, IMF, Cuba, globalization, neo-liberalism, labor policy, immigration, Free Trade Area of the Americas

Abstract:
Multi-level constitutional systems institutionalize power-splitting arrangements among governments sharing power over territory and people. These arrangements produce a diffusion of sovereign authority among multiple partial sovereigns who together constitute the whole of a self-contained political community. Critical to the success of such arrangements is the effectiveness of protections afforded the residuary power holders. In the United States, structural protections of the residuary powers of the states have been characterized as a mere truism: not a grant of positive power to the States, but merely a provision of descriptive and reassuring value. Between 1789 and the present, application of the principle by the federal courts has produced both a flexible and efficient system of national governance in which the political accountability of federally elected officials serves as the primary source of the protection of federalism and a significant diminution of those residual powers in favor of the general government. Germany has allocated power a little differently to the federal government, providing a limited power for federal legislation to be vetoed by the Lander represented in the Bundesrat, and a monopoly in the Lander over the implementation of federal law. Since the adoption of the Grundgesetz the resulting system of cooperative federalism has preserved much Lander power over implementation but little power over legislation. The resulting system imposes obligations to consult among all levels of government if legislation is to be passed and implemented. In each case, constitutional text has served only as the starting point for the development of very different articulations of judicial visions of the constitutional state. The European Union, as a supra-national organization with multi-level constitutional characteristics, has avoided a strong adherence to either the German or American models of federalism. All the same, the Institutions of the E.U., the methods for enacting regulations, and emerging principles of legislative restraint (among the most well known of which is the principle of subsidiarity), have produced a system with substantial formal respect for Member State authority, a certain amount of inefficiency, and a historic tendency to encourage the migration of state power to the federal or general government. This has been accomplished through the articulation by the courts of a vision of the European Union that was not necessarily apparent from a reading of the Treaties. The proposed E.U. Constitution attempts to build a more formalized and institutionalized federalism on the foundation of the current system of European power sharing, but with more direct protections for Member State power. It is not clear that any amount of writing in a Constitutional document memorializing vertical power sharing arrangements can fully protect subordinate units of government against a shifting of power towards the center. This paper evaluates the efficacy of this proposed multi-constitutional arrangement to define and protect against erosion of the residual powers of the Member States. Using the experiences of the American and German federations, as well as that of the pre-Constitution E.U. as analytical templates, the paper suggests that no amount of textual protection of residuary authority, even in systems in which substantial power is retained by the constituent parts of the federation, can guarantee against the shifting of power from Member State to central government. The European Court of Justice, bounded by constitutional traditions that favor a German approach to constitutional interpretation, may instead adopt the nationalizing approach of the American courts in its interpretation of ambiguities and lacunae in the draft European Constitution's federalism provisions.

Abstract:
Why do the people and institutions of democratic states, and in particular those of the United States, obey judges? This article examines the foundations of judicial authority in the United States. This authority is grounded on principles of dominance derived from the organization of institutional religion. The judge in Western states asserts authority on the same basis as the priest - but not the priest as conventionally understood. Rather, the authority of the judge in modern Western democratic states is better understood when viewed through the analytical lens of priestly function developed in the philosophy of Friedrich Nietzsche. Focusing on the American Supreme Court, this paper examines the manner in which high court judges have successfully internalized the characteristics of Nietzsche - Paul and his priestly caste within the religion of Western constitutionalism. 'Paul wanted the end, consequently he also wanted the means. What he himself did not believe, the idiots among whom he threw his doctrines believed. His need was for power; in Paul the priest wanted power once again - he could use only concepts, doctrines, symbols with which one tyrannizes masses and forms herds.' (Antichrist 42). This critique of systems, and especially of systems locating the power of judgement, reward and punishment outside the self, finds echoes in the recent constitutional jurisprudence of the American Supreme Court and serve as the basis for a continuing judicial authority. Judges acquire a monopoly over communication with the divine - justice, truth, norms - and Western constitutionalism provides the mechanism for the regulation of sin. 'The priest rules through the invention of sin' (Antichrist 49); the constitutional judge rules through the inversion of doctrine. The interpretive doctrines, standards and tests which have grown up around constitutionalism converts norms into a morass of the unknowable, except with the guidance of priests speaking through courts. And so the judge creates a mechanics of authority based on a self-reinforcing dependence.

Constitutional law, judges, authority, rule of law, precedent

Abstract:
Why do the people and institutions of democratic states, and in particular those of the United States, obey judges? This article examines the foundations of judicial authority in the United States. This authority is grounded on principles of dominance derived from the organization of institutional religion. The judge in Western states asserts authority on the same basis as the priest - but not the priest as conventionally understood. Rather, the authority of the judge in modern Western democratic states is better understood when viewed through the analytical lens of priestly function developed in the philosophy of Friedrich Nietzsche. Focusing on the American Supreme Court, this paper examines the manner in which high court judges have successfully internalized the characteristics of Nietzsche - Paul and his priestly caste within the religion of Western constitutionalism. 'Paul wanted the end, consequently he also wanted the means. What he himself did not believe, the idiots among whom he threw his doctrines believed. His need was for power; in Paul the priest wanted power once again - he could use only concepts, doctrines, symbols with which one tyrannizes masses and forms herds.' (Antichrist 42). This critique of systems, and especially of systems locating the power of judgement, reward and punishment outside the self, finds echoes in the recent constitutional jurisprudence of the American Supreme Court and serve as the basis for a continuing judicial authority. Judges acquire a monopoly over communication with the divine - justice, truth, norms - and Western constitutionalism provides the mechanism for the regulation of sin. 'The priest rules through the invention of sin' (Antichrist 49); the constitutional judge rules through the inversion of doctrine. The interpretive doctrines, standards and tests which have grown up around constitutionalism converts norms into a morass of the unknowable, except with the guidance of priests speaking through courts. And so the judge creates a mechanics of authority based on a self-reinforcing dependence.

constitutional law, judges, authority, rule of law, precedent

Abstract:
Since the establishment of the Soviet Union, constitutional theory has tended to look suspiciously at the constitutionalization of Marxist Leninist state apparatus under the control of a single party in power. There is a sense of illegitimacy, and a suggestion of the construction of sham constitutions, in regimes in which the ultimate state power is vested in an apparatus which itself is subject to the direction of an extra constitutional power, which in turn is meant to mask personal rule. These judgments have formed the basis of analysis of Chinese constitutionalism as well, serving as the foundations for critique especially after the reforms of Deng Xiaping and his successors after 1989. But are these criticisms inevitably correct in general, and wholly applicable in the post 1989 Chinese context? This paper explores those questions, suggesting a basis for the articulation of a legitimizing constitutionalist theory for states organized on a state-party model along certain lines. Focusing on the evolution of state-party constitutionalism in China since 1989, the article first reviews the basic principles of current constitutionalism theory and its importance as a legitimating global ideology against which state organization, and the actions of state officials, are judged. The article then looks to the evolution of the party-state model of governance from its origins in 19th century European Marxist-Leninist theory to its reception in China in the 1920s, and its modern transformation “under the guidance of Marxism-Leninism, Mao Zedong Thought, Deng Xiaoping Theory and the important thought of 'Three Represents'” (PRC Constitution 2004, Preamble). Drawing from the implications of the evolution of theories of state-party constitutionalism in China, the article suggests that it is possible to theorize a state-party model of state organization that remains true to the ideals of constitutionalism grounded in the core postulate of rule of law governance. This argument is based on an understanding of the relationship between state and Party grounded in (1) a division between economic and social citizenship, which is the right of all persons, and political citizenship, which can be exercised through the Party though not exclusively in the Party, (2) an understanding of political organization in which the state power and its institutions are subordinate to political authority, (3) an institutionalization of political authority within a collective that serves as the source and conduit of constitutional values to be applied by the holders of state authority, and (4) a system in which Party elaboration of rule of law values is contingent on state and party self discipline. Rule of law constitutionalism in China, then, is better understood as state-party constitutionalism, with a necessary focus on party rather than state, grounded in separation of powers principles in which the administrative function is vested in the state and political authority over all is vested in the Party under law.

自 前苏联 成立以来，宪政理论始终试图以怀疑的目光审视一党专政之下的马克思列宁主义国家政权。当国家的最高权力被授予某一个机构，而这个机构受制于一种超越宪法的外力，并且这种外力意味着个人统治的面具，这时，这个国家的宪法被认为是不合法并且是虚伪的。当国家受制于政党，而政党成为个人权力博弈的平台，那么这种“党国”体系逐渐被理解为专制与暴政的傀儡、个人或小集团统治的面纱。这样的“党国”体系由暴力机关和内部恐怖机构的强制力支持着，依照个人或小集团反复无常的念头统治着国家。在这种背景下，宪政是不可理解的。同样的，这些评判形成了分析中国宪政的基础。特别是在看待邓小平和他1989年以后的继任者们的改革方面，这些评判已作为批评中国宪政的基础理论。然而，这些批评成立、并且普遍适用于1989年之后的中国社会现实吗？本文将探讨这些问题，并提出一种理论基础——遵循一定的路线，如何使建立在“党国”模式之上的国家的宪政法制化。本文关注中国1989年之后的“党国”宪政的演进，并首先回顾现代宪政理论的基本原则，以及它作为评判国家组织形式、政府官员行为的国际意识形态标准的重要性。接下来，本文将目光投向“党国”模式的演进——从它的源头，十九世纪欧洲的马克思列宁主义思想，到它被二十世界二十年代的中国接受，再到它在当今中国“马列主义毛泽东思想、邓小平理论以及三个代表重要思想引导下” （摘自2004年中华人民共和国宪法，序言）发生的转变。根据这样的演进，本文指出，在理论上构建一个以依法治国为基础的“党国”模式的政权，并不悖宪政原则，是可行的。中国的“党国”宪政理论需要重新定义宪法——这样的宪法需要囊括组织国家政权的文件，同时也囊括组织一个平行与国家权力的政党的文件。这同样建立在对于共产党属性的不同理解上——不是一个政党或私人行为者，而是政府结构的内部组成部分，更重要的是，作为政治公民权的持有人。本文最后将使用全球的宪政标准来衡量中国的宪政，并依据以上观点得出结论。这些包括对于“党国”结构的思考：（1）划分不同的公民权—— 不同于社会与经济公民权，政治公民权由政党来支配；（2）国家权力和制度从属于政治权威；（3）多党制被作为实现宪政价值的资源与渠道；（4）在这个体制中，法制依靠国家于党的自律。中国的宪政，作为“党国”的宪政，可以用来理解依法治国。在这样的依法治国概念中，宪政约束的重点不是国家机器，而是政党组织。由此，中国的宪政法制，应当理解为“党国”的宪政。从而，“党国”体系可以被称为一种合法的宪政体系，虽然它的实质价值有别世俗的、国际的宪政。这就是有中国特色的宪政。

Abstract:
Sooner or later, Cuba will have to engage with globalization. This article considers whether it will be possible Cuba to remain true to its Marxist-Leninist principles of political and economic organization, and simultaneously embrace the emerging system of economic globalization. China appears to have accomplished this goal, Cuba could follow China's example. Despite all of the potential benefits to Cuba, a number of factors may make it impossible for Cuba to successfully implement a Cuba-appropriate version of the Chinese model of engagement with globalization. This paper considers six of the strongest arguments against adopting the Chinese model in Cuba. First, it is not clear that the Chinese model of global economic engagement has actually worked as advertised in China. Second, the Chinese model may not translate well to the Cuban context. The sort of engagement consistent with Maoist understandings of Marxist-Leninist theory may be impossible in the context of Cuba's more Stalinist system of politico-economic organization - at least without what in Cuba would be viewed as a substantial shift in the nature of the governing ideology. Third, neither Cuba nor China has solved the core foundational problem of economic development through independent collectives, legal entities that are not an integral part of the state apparatus controlled by the Communist party. Neither China's Maoist Marxist-Leninist theory, nor Cuba's Stalinist version have satisfactorily solved the central contradiction of Marxist-Leninist engagement - the privatization of economic activity essentially directed by autonomous economic collectives regulated by the state. Fourth, Cuba continues to actively resist integration into global patterns of capital. Fifth, Cuba is in a poor position to compete globally - its labor is expensive, its products overpriced, and its infrastructure in need of development in comparison to other developing states. Last, and most perversely, the subjective and highly emotional 'special relationship' between Cuba and the United States limits objective consideration of alternatives and thereby constrains choice. The paper concludes by suggesting that despite the problems, there are significant elements in the Chinese model worth adopting, elements that are already, to some extent, present in the current Cuban approach to engagement with globalization.

Corporations, globalization, economic development, china, cuba, privatization

Abstract:
Regulatory power has become fractured. Its assertion both by public and private bodies is well known. Less well recognized is that the expression of this regulatory power has been fracturing as well. No longer confined to positive regulation or judicial decision, the techniques for enforcing regulation are substituting for regulation itself. This paper examines surveillance as a mechanism through which power is asserted and regulation effected in a world of shared public/private governance. For this purpose, understanding the nature of surveillance as a technique of governance, and as a substitute for governance itself, is a key element for understanding political authority as it is developing. The paper focuses surveillance as a new form of lawmaking through which the old boundaries between the public and private, national and transnational, are not relevant. It explores the ways in which the construction of complex systems of conscious and permanent visibility affects the power relationships among states, economic entities and individuals. To understand the complexities and vectors of surveillance is to grasp the shape of converging public/private governance in this century. To that end, this paper first suggests an approach to the unbundling of the normative and methodological assumptions of surveillance. That approach can be usefully divided into four aspects, normative, informatics, control, and governance, each of which is developed in turn. The paper ends with an elaboration of the regulatory consequences of the manipulation of these aspects of surveillance. Drawing on theories of gouvernmentalité, the paper suggests the ways in which governance is increasingly elaborated through the techniques of its own power. The attention lavished on surveillance in its many forms evidences the ways in which law, in a sense, is now expressed through different forms.

multinational corporations, surveillance, monitoring, disclosure, regulation, globalization, transnational law

Abstract:
The financial crisis that started in 2007 has brought into sharper focus a set of rising global financial actor - the sovereign investor. In the form of sovereign wealth funds (SWFs), sovereigns have become an important player in global financial markets and its stability. Over the last decade they have become more visible and more aggressive in the scope and form of their interventions in global finance. In the form of state owned enterprises, sovereigns have begun to operate indirectly through subordinate legal persons that operate like privately held multinational corporations. In that form, sovereigns are becoming a more significant presence in global markets as owners as well as investors. More importantly, sovereign owners have begun to coordinate their economic activities for economic and sovereign goals. Consequentially, crisis has produced a dynamic element in the evolution of the global economic system. The Chinese efforts to coordinate sovereign investing directly by the China Investment Corporation and its principal subsidiaries, and indirectly through its subsidiaries and supported SOEs investing abroad, suggest the more complex organization of sovereign investing in which profit maximization is blended with a pronounced set of political objectives, grounded in development goals. This presents a potentially substantial advance in the integration of programs of sovereign investing, public policy and private markets. A responsive regulatory framework has not followed. The rise of sovereign market participatory entities, operating as both sovereign and private actors, will require a responsive regulatory framework substantially different from those currently in gestation. The Chinese experience suggests that while there is fundamentally little to fear from well operating public-private constructs, that model requires a different regulatory approach, and one that recognizes and rethinks the relationship of public and private sectors and the limitations of the state’s role in both in the context of protecting the integrity of global markets and the free movement of capital and economic activity. This essay examines these fundamental issues of sovereign investing. Section I contextualizes the problem as a function of the character and control of large aggregations of wealth, Section II focuses on sovereign wealth funds as projections of public economic power in private form. It focuses on issues of the conceptual dissonance in the definition and operation of sovereign wealth funds. The section ends by connecting those issues to policy debates about sovereign investing, especially in the form of sovereign wealth fund activity. Section III then considers the expression of the conceptual dissonance of sovereign investment regulation. It considers national and supra national approaches to regulation and regulatory reform. Section IV considers state owned enterprises as another vehicle for sovereign investment abroad. It considers state owned enterprises (SOEs) as a fundamental component of innovative multi-vehicle deployments of sovereign wealth outside the national territory as part of the implementation of coordinated national development goals. Section V critically examines these issues in context. It considers the approach of China in the use of its state wealth through SWFs and SOEs.

sovereign wealth funds,state owned enterprises, santiago principles, sovereign investing, private markets

Abstract:
The promise and challenges of Chinese law, economy, and foreign relations is nicely framed within the Chinese Constitution. From the time of the leadership of Deng Xiao-Ping, China has invested tremendous resources on the modernization of all sectors of its society while attempting to remain true to the founding ideology of the People's Republic. Chinese ideological and political systems ultimately shape the social, political, and economic culture of the People's Republic of China. In a state that takes political theory very seriously (at least officially) but in which development is still not at an advanced stage, theory and practice, aspiration, and reality serve as critical sites for study. This paper discusses a number of important contributions to the study of Chinese law, economy and foreign relations produced in connection with a symposium sponsored in February 2006 by the University of Iowa College of Law. Taken together, these articles paint a picture of a sophisticated state in substantial transition in its internal governance and its external relations. Examining various aspects of this transition, from both American and Chinese perspectives, these contributions touch on a range of important current issues, including the role of ideology in governance, to the state of the regulation of the finance sectors, the development of administrative law mechanisms, the evolution of rights in property, the delivery of "justice" services, and the construction of a policy on Taiwan, these contributions suggest the possibilities of Chinese-American dialogue. Both the United States and China remain ideologically dynamic in this latter sense. Their conversations, both internal and between them, will have tremendous effects. These effects will touch not only on the state of global norm making, but also the way in which the United States and China each comes to understand the other, and themselves.

China, Taiwan, rule of law, constitution, Communist Party, administrative law, courts, securities markets, banks

Abstract:
The issue of sovereign debt - its character and effect - is really part of the much larger battle between two fundamentally opposed visions of the nature and character of the nation-states in general, and debtor states in particular, and of the global system that maintains the market for such transactions. The dominant vision, firmly grounded in private law, posits that growth can occur only in a tightly integrated global economy founded on trade liberalization, privatization, and macrostability. When the state fails to pay its debts, it ought to be treated like any other failed corporate enterprise -- a stay on debt collection efforts, broad enforcement of absolute priority, creditor approval of the proposed reorganization plan, and well protected new interim financing pending restructuring. Opposing the dominant vision is an anti-corporatist approach grounded in public law and the subordination of economics and markets to political control in the furtherance of deliberate state public policy and planning. States fail because it is in the interest of dominant states to use sovereign debt as a means of perpetuating subordination and a hierarchy of power among states. When a state fails to pay its debts, the focus ought to be on the creditor, and the fairness of the debt in terms of the larger public policy concerns - development, and the maximization of living standards for all individuals through state planning. The paper first explores the normative foundations of each vision and its consequences for dealing with the borrowings of nation-states. For this purpose, the paper concentrates on two actors who most starkly highlight the opposing views. For the dominant vision, the focus is on Anne Krueger, the First Deputy Managing Director of the International Monetary Fund, and specifically on her proposal to create a bankruptcy model for sovereign state debt restructuring. For the opposing vision, the focus is on Fidel Castro Ruz, the President of the Republic of Cuba and specifically on his elaboration of a critique of the dominant vision of global economic development championed by the IMF. These actors nicely distill the positions subject to analysis in this paper. The implications of each for the shape and character of international regulation, and of the state as an actor in the context of the emerging global system of economic and political regulation, are then explored. In particular, the paper contextualizes the Castro vision within the developing positions of the United Nations Human Rights establishment in Geneva and the Roman Catholic Church on globalization and sovereign debt in opposition to the market driven system elaborated through the IMF and well illustrated by Krueger's proposal for state discipline through bankruptcy.

Sovereign debt, IMF, Cuba, globalization, neo-liberalism, labor policy, immigration

Abstract:
One of the great current debates in Chinese constitutional law is the role of constitutional review within the Chinese legal-political system. This paper looks at the recent work of Chinese constitutional scholars to analyze the thrust of that debate. It suggests that this modern scholarship rightly focuses on the institutionalization and bureaucratization of politics as a hallmark of the scientific development of rule of law notions within China’s political system. This bureaucratization and institutionalization has important ramifications for institutionalizing constitutional interpretation as a viable legitimating tool within this developing Chinese constitutionalism. However, the paper criticizes the current approaches because they tend to focus on state institutions, principally the National People’s Congress, as the place from where the constitutional interpretation function ought to be exercised - whether implemented in the form of a court or some other collective. The paper proposes a different focus. Reading modern Chinese constitutionalism holistically supports the idea that the constitutional interpretation function ought to be exercised from the highest level of political authority in China. The Chinese Constitutional framework provides an important insight, one that is worth emphasizing - under the Chinese Constitutional system, the CCP is and ought to be recognized as the authoritative institutional interpreter of the constitution and the constitutional order over which it presides and under which it is bound. The highest institutional body within the Chinese constitutional system is the Chinese Communist Party rather than the state institutions, like the NPC, that have been the object of the current debate. As the institutional embodiment of the highest political authority in the nation, the CCP may be best suited for the role of authoritative interpreter of the constitution. An institutionalization of that function in the form of a constitutional court or similar collective organization within the CCP may thus represent the most appropriate way of further legitimating constitutionalism within the Chinese legal order.

china, constitutionalism, constitutional court, judicial review, communist party of china

Abstract:
Many law schools are now wrestling with issues relating to the incorporation of a transnational legal component — including elements of international, comparative, foreign and transnational law — within their teaching and scholarship missions. These changes mirror discussions within the legal academy over a move from a "national law practice" to a multi-jurisdictional practice model of legal education. There is a sense that, just as American law schools shifted from a local to a national legal orientation about a century ago, today law schools must shift from a national to a transnational focus in this century. The paper suggests a possible structure for analysis of the value of integrating the transnational element within the teaching, research and service of law school stakeholders. It will then propose a set of framework structures for incorporating the transborder element in law school curricular, research and service activities. The paper will consider three traditional models for incorporating the transborder element into law school curricula: the integration, aggregation and segregation models. Each seeks to modify existing resources and teaching/research models to incorporate a transnational element into the curriculum. The paper then considers two emerging framework structures for the incorporation of transnational elements in legal education. The first, the immersion model, depends on the ability of a law school to forge effective networks with law schools in other states. The second, the multi-disciplinary departmental model, is based on the idea that the transnational element in law is distinct enough to merit a substantial treatment in its own right. This last approach represents a substantial departure from traditional approaches to law teaching and research. The paper ends with a consideration of implementation issues for developing a multi-disciplinary departmental approach to incorporating the transnational element in legal education.

transnational law, legal education, international law

Abstract:
American constitutional jurisprudence has entered a period of decadence. The characteristics of this decadence is much in evidence in the constitutional jurisprudence of the American Supreme Court: judicial arbitrariness, the use of interpretive doctrine as an end rather than a means, disregard of existing interpretive doctrine and hyper-distinctions of fact, doctrine as a smokescreen for personal preference, and an inclination to permit the juridification of everyday life. Indeed, these characteristics of decadence are made worse by a bloated and ill-defined catalogue of interpretive doctrines that veils all distortion of constitutional principle in the service of personal politics. Here is a jurisprudence in decline, increasingly noted more for arbitrariness than principle. In this context, it is worth inquiring whether there might be a suggestion for improvement in the juristic traditions of European or supra-national constitutional systems. This article examines the latest example of the modern phenomenon of jurisprudential decline through an analysis of two First Amendment cases decided during the American Supreme Court's 1999-2000 Term. It then looks to the French and German systems of constitutional review, and the jurisprudence of the European Court of Human Rights, to determine whether other systems provide translatable lessons for a more effective and democratically based supervision of the interpretive function of the American Supreme Court. It suggests that European traditions of hierarchies of fundamental constitutional values provide at least a basis for the policing of judicial interpretation. In the absence of regularization and restraint, the American system of constitutional jurisprudence (like any other system relying on judicial interpretation) will collapse of its own weight. Equally likely is the possibility that such a system will be abandoned because, having become so engorged in detail, point and counterpoint, thrust and counter-thrust, rule and exception, it will prove useless to all but the theoretician and the pedant.

Abstract:
The decisions in Bush v. Palm Beach County Canvassing Bd. ("Bush I") and Bush v. Gore, ("Bush II") evidence the extent to which it now appears unremarkable for courts to play a role in even the most basic of political issues. While the doctrinal value of the Bush decisions is certainly important, the Bush decisions are far more valuable for their endorsement of methodologies available to anyone seeking political advantage under the cover of judicial legitimacy. This article explores those principles, practices and procedures. I start with an appropriate theoretical context. For that purpose I look to LatCrit theory rather than more ideologically traditional or doctrinal theory. Ironically, this expression of critical theory, grounded in progressive political programs, provides the best conceptual basis for interpreting the ostensibly traditionalist Bush cases. I use this theoretical context to identify eight core methodological lessons of the Bush cases: (1) "Be Consciously Political;" (2) "Be Literal;" (3) "Attack Precedent;" (4) "Create Contradiction;" (5) "Appropriate;" (6) "Exploit Uncertainty and Sentimentality;" (7) "Recruit Legitimacy;" and (8) "If All Else Fails, Overwhelm Law Through its Own Devices." I then explore the way these lessons have been internalized by the courts and applied in nearly one hundred published and unpublished judicial opinions issued since the publication of the Bush cases. Those opinions are windows through which one can see the ways in which litigants have attempted to extract meaning from the Bush decisions far beyond their officially sanctioned reading, and the ways in which judges have attempted to situate the Bush decisions within the body of American case law. In their least dangerous sense, the lessons, as applied, suggest the ways in which the juridification of politics has become institutionalized in federal and state courts. The courts now rival the legislature as the venue par excellence for the resolution of political issues of every description. But the lessons also suggest the naturalization, within an ostensibly conservative political jurisprudence, of methodologies of legal perversion, of the use of law against itself. Having made a vocation of criticizing the political left for the nihilistic evils of critical and other progressive approaches to law, a so-called conservative court has gone a long way to implement a jurispruence of ultimate relativism and indeterminacy. Now that is irony!

constitutional law, constitutional litigation, jurisprudence

Abstract:
The Carnegie Foundation's Report, Educating Lawyers: Preparation for the Profession of Law reminds us that the challenge for legal education requires a linking of the interests of legal educators with the needs of legal practitioners and with the public the profession is pledged to serve - in other words, fostering what can be called civic professionalism. Educating Lawyers would reverse the drift of American legal education towards a purely academic orientation, recasting legal education as fundamentally professional rather than academic, outward and not inward looking. Educating Lawyers' focus is almost completely devoted to domestic law. Yet, civic professionalism does not end at the borders of the United States, and American lawyers long ago stopped thinking of national borders as the borders of their professional lives. The law schools have been responding. Many law schools are now wrestling with issues relating to the incorporation of a transnational legal component - including elements of international, comparative, foreign and transnational law - within their teaching and scholarship missions. These changes mirror discussions within the legal academy over a move from a national law practice to a multi-jurisdictional practice model of legal education. Yet these two great reform efforts have developed along parallel tracks. This paper looks at the development of these parallel discussions of reform of legal education. The framework is described in Part I. The paper then turns to a critical review of Educating Lawyers, focusing on its basic assumptions that serve as the foundation for the suggestions for the changes proposed. Part III examines the parallel development of the several strands of proposals for the incorporation of non-domestic legal education in American law schools, suggesting first an analytical framework for evaluating these proposals and then evaluating the several forms of incorporation that dominate incorporation of the transborder element in law school curricular, research and service activities. These are divided into five categories¿three are elaborations of traditional models and two others, an immersion model and separation model, represent emerging framework structures. Part IV considers these models of integration in light of the foundational model of apprenticeship proposed in Educating Lawyers. It suggests that transborder legal education can be integrated in legal education within the framework of Educating Lawyers but that not all emerging models of such integration are compatible with that framework.

legal education, Carnegie Foundation, Educating lawyers, international law, curriculum

Abstract:
This paper focuses on an area of study largely neglected in feminist theory - the development of gender differentiation within masculinity, and its application in law in three socio-culturally distinct communities. In the United States, rumors of homosexuality surfaced in the non-elite press to demonize and explain the motivation of Mohammed Atta, one of the suicide pilots of September 11, 2001, Jonathon Walker Lindh, the American Taliban and John Mohammed and Lee Boyd (John) Malvo, the D.C. snipers of 2002. In Zimbabwe, the sodomy trial of Zimbabwe's first President provided a focal point for the campaign to de-colonize the law of Zimbabwe from an effeminate corrupting foreign law and reinforce rulings on the gendered consequences of a reconstituted customary law. In Malaysia, the Deputy Prime Minister, Anwar Ibrahim, was convicted of corruption and sodomy, in actions instigated by the Prime Minister, after Anwar had criticized him for political and economic corruption. Within a variety of very distinct cultures, certain male wrongdoers are also represented as homosexual. This characterization draws upon a locally powerful logic, which varies with the cultural context. The insertion of allegations of sexual deviance in each case serves to amplify and fix the other allegations of consequentially bad behavior. This process reiterates the deviant nature of homosexuality, and reinforces the association of homosexual behavior with characteristics that are undesirable in men specifically and people in a more general sense. Since proscriptions of homosexuality at their core seek to prohibit particular behavior that appears to invert a natural order based on conceptions of appropriate gender behavior, the homosexual accusation functions to conflate undesirable characteristics - weakness, illness, corruption or impurity - with defective manhood, and thus with the not-male. Ironically, strengthening this association enables the gendered foundations of behavior regulation without a loss of its regulatory power. Thus, the gendered character of behavior norms disappears, in neutral discourse: science in the U.S., customary law in Zimbabwe, and Islam in Malaysia. Though such systems of conflation appears to affect only relations between men, in actuality, the power of gendering behavior among men has strong spillover effects on all social ordering. Behavior or expectations unreasonable for men will be generalized for the population as a whole as necessarily undesirable and gendered female or not-male. Because each of these episodes takes place on a legal stage, they each give force to a system based on gendered behavior and the association of that gender system with locally powerful logics. This in turn authenticates and legitimizes the resulting conduct system in the neutral terms of the culture in which it is served up. Memorialized as law, the political system can then embrace gendered behavior in culturally acceptable non-gendered terms.

Gender, comparative law, sodomy, feminist theory, cultural studies

Abstract:
The enforcement framework for the MNE Guidelines has long been the subject of criticism, especially by representatives of private and public actors. But two recent cases have suggested the ways in which enforcement actions arising from civil society efforts to utilize the national contacts points complaint system may be slowly influencing the emerging discourse of corporate behaviour in ways that will have substantial effect. Beyond evidence of a more muscular institutional transnational enforcement structure for soft law codes, the cases serve to outline a framework for the interaction of transnational and national systems of corporate regulation. The multilateral system for governing multinational corporate behaviour will affect not only that behaviour but also the rules through which corporations may be governed as to their internal affairs and with respect to the character of their legal personality. This essay first briefly describes the institutional and regulatory framework within which the cases arose. It then reviews the cases themselves, drawing out the more relevant arguments. Lastly, it contextualizes those arguments and positions within national and transnational corporate and international legal regimes. The cases illustrate the way in which advances in governance issues are being crafted, step-by-step, from out of a system that, while formally non- binding, is increasingly developing the characteristics of a binding governance system. The cases suggest the parameters within which the MNE Guidelines are beginning to serve as the focal point for the construction of an autonomous transnational governance system that, in turn, is meant to serve as the touchstone for corporate behaviour in multinational economic relationships.

Rights And Accountability In Development (Raid) V Das Air, Global Witness V Afrimex, Transnational Law, OECD, Guidelines for Multinational Corporations, soft law, Multinational Corporations, Global Compact

Abstract:
The Alternativa Bolivariana para los Pueblos de Nuestra América (ALBA), the command economy alternative to the free trade model of globalization, is one of the greatest and least understood contributions of Cuba to the current conversation about globalization and economic harmonization. Originally conceived as a means for forging a unified front against the United States by Cuba and Venezuela, the organization now includes Nicaragua, Honduras, Dominica, and Bolivia. ALBA is grounded in the notion that globalization cannot be left to the private sector but must be overseen by the state in order to maximize the welfare of its citizens. The purpose of this paper is to carefully examine ALBA as both a system of free trade and as a nexus point for legal and political resistance to economic globalization and legal internationalism sponsored by developed states. The paper starts with an examination of ALBA’s ideology and institutionalization. It then examines ALBA as both trade organization and as political vehicle for confronting the power of developed states in the trade context within which it operates. ALBA remains embedded in a large web of trade arrangements among its member states that bind them in different ways under different arrangements. That context highlights differences, especially in relation to MERCOSUR and the abandoned FTAA. It also produces both cooperation and challenge. This is most acutely felt in ALBA’s relationships with CARICOM and in the rising network of bilateral investment treaties among regional states. Taken together, for the moment, at least, ALBA’s greatest contribution might well be its ideology. Its mere existence serves as a basis for challenging assumptions in the creation and implementation of methods of integration. It provides a base through which this distinctive ideological voice can be leveraged by its state parties in Hemispheric integration debates. It seeks to balance the tensions between post colonial nationalism, internationalism and state sector dominance by substituting for private markets and private actors, state actors and tightly controlled markets. It is no longer focused on eliminating borders for the production and management of private capital; instead it is focused on using borders as a site for the assertion of public authority to control all aspects of social, political, cultural, and economic activity. Understood as an ideological joint venture among its participants, ALBA represents a space within which a consensus on alternatives to the existing preeminent economic model of globalization might be constructed. As such, it may represent one of Cuba’s greatest triumphs and also its greatest challenge to the normative tenets of the current framework of economic globalization. Thus contextualized, ALBA serves as a nexus for six great points of tension and connection within both modern trade theory practice and the construction of state system frameworks in Latin America. ALBA implicates tensions between integration and nationalism; between public and private models of integration; and between internal and external regional trade norms. It also highlights connections between the current form of trade frameworks and the construction of alternative forms of trade arrangements; between anti-Americanism and integration; and between conventional frameworks of Latin American trade and it challengers. These are summarized in the conclusion.

ALBA, Alternativa Bolivariana para los Pueblos de Nuestra América, regional trade agreements, Bilateral investment treaties, Cuba, Venezuela, CARICOM, MERCOSUR, Petrocaribe, grannacional

Abstract:
Americans have been obsessed about the mechanics of perfectibility. Perfectibility is built into the constitutive documents of the American Republic. The expression of that perfection is Law, and Government provides the means. The mechanics of perfectibility lies in philosophy and theology. Through these mechanics Americans can discern the spirit of perfection - as God or as the genius of the American community made manifest. The essay considers these notions in the context of two cases, Swift v. Tyson (1842) and Erie Railroad Co. v. Tomkins (1938), which provide both the antipodes of American conceptions of the sources and hierarchy of law, and also suggest the mechanics of a mandatory perfectibility in American. But the judge is not the only intermediary between perfection and its expression in law. The essay suggests the way the political branches also seek the role of privileged (and uniquely privileged) intermediaries between the people and perfection. The essay ends with a consideration of the value of the theology of faith and reason in the elaboration of American jurisprudence.

jurisprudence, constitutional law

Abstract:
Like legal systems, economic systems grounded solely on rational activity without a grounding in normative systems of values, are either incomplete or subject to perversion. This paper focuses on the values of substantive economics developed recently through application of Catholic theology. It focuses on the Catholic critique of consumerism, its understanding of a necessary labor policy and its sense of a just global economics. It will suggest a number of places where socio-economics and theology share common ground, and even something of a common framework of analysis, and that consequentially, there may be some force to arguments that some values may be trans-religious, as well as trans-cultural. The paper starts with a short consideration of the approach of economics in its modern globalized context, and the contribution of socio-economics to that approach. It then briefly suggest the contours of an economic critique of that modern approach-focusing on the attacks on globalization by Fidel Castro in the name of an alternative global economic model-substantially Marxist in character. It then turns to the development of Catholic social thought as it touches on the issues raised by global economic activity in three respects: materialism, labor rights and globalization.

Catholic social thought, globalization, economic policy, binary economics, socio-economics, economics and religious values

Abstract:
Indigenous peoples have been quite useful to political elites in Latin America almost since the time of the conquests by Spanish and Portuguese adventurers in the fifteenth and sixteenth centuries. In the nineteenth and early twentieth centuries, indigenous people supplied the foundations for a trope, both literary and political, essential for the construction of cultural, ethnic, racial, and political identities distinct from the traditional colonial masters of emerging Latin American states, as well as from that great power to the north. This paper looks at one aspect of this rich development by focusing on the noble savage, the construction of Caribbean (and principally Cuban) political identity, and the formation of governance ideals. The focus will be on three people, separated by hundreds of years but all connected by the parallels of their lives and their place within Caribbean literary and political thought. I will start with the great archetypical figure of Cuban history - a Taino Indian from the island of Hispaniola - el indio Hatuey. The heart of the paper examines essays of Jose Marti in the broader context of Latin indigenismo. Marti, like the Spanish before him, confronts the Indian in Cuban life. But unlike the Spanish, Marti deploys the Indian in the service of the construction of Cuban national indigenismo. The last great figure considered in the development of Cuban indigenismo is Fidel Castro Ruz. Castro served as the leader of Cuba from the successful conclusion of the Cuban Revolution of 1959 until early 2008 when illness forced his retirement. The indigenismo of Marti finds rich embellishment in the great speeches of Fidel Castro. With Fidel Castro we witness the maturation of the process of denaturing the Indian from indigenismo. The essay ends with a consideration of the U.N. Declaration on the Rights of Indigenous Peoples from the perspective of this constructed Cuban indigenismo without Indians. In a Cuba without Indians, but where the memory of the Indian is revered, Cuba can seek to assert the rights of indigenous peoples everywhere without having to confront the issue of its own Indians. In a construction of a social and ethnic order in which the Indian has disappeared, to assert the right of indigenous people in Cuba is to assert the rights of the Cuban nation as a singular but blended mass.

Cuba, Declaration on the Rights of Indigenous Peoples, Jose Marti, Indians, Che, Fidel Castro, Taino, Indians. indogenous

Abstract:
The recent federal Supreme Court opinions in Bush v. Gore cast in stark light the manner in which constitutional interpretation is preparing the way for constitutional transformation: a federalization based on devolution of authority from the central government to the states, a shift in interpretive authority from the state to federal courts, and a narrowing of what it means for a court to say what the law is, with a resulting transfer of interpretive authority from the courts (and ultimately even the federal Supreme Court) to the political branches of the central government. These transformations are tinged with irony. The changes are being made possible by jurists who - though paragons of the strictest traditional interpretation of Constitutional norms - now embrace the philosophy of judging they have spent a lifetime fighting. Yet, in their hands, the activist and evolutive jurisprudential philosophy utilized by the Supreme Court since the mid-20th Century is used to unmake the substantive results for which it was crafted. It seems, then, that the authentic heirs of the activist mantle of the Warren Court are those jurists who, though professing a desire to destroy the Warren Court's legacy, have actually taken the work of the Warren Court to new heights, opening the way for another mutation of the Republic. Thus the ultimate irony: per curiam, concurrence and dissents have made it possible for others, at their leisure, to find, within the arcana and lacunae of the Constitution, other places from which it can be divined that states and their governments, that courts and their judging, can be limited or controlled.

Constitutional law, jurisprudence, race, judicial activism

Abstract:
The recent federal Supreme Court opinions in Bush v. Gore cast in stark light the manner in which constitutional interpretation is preparing the way for constitutional transformation: a federalization based on devolution of authority from the central government to the states, a shift in interpretive authority from the state to federal courts, and a narrowing of what it means for a court to "say what the law is," with a resulting transfer of interpretive authority from the courts (and ultimately even the federal Supreme Court) to the political branches of the central government. These transformations are tinged with irony. The changes are being made possible by jurists who - though paragons of the strictest traditional interpretation of Constitutional norms - now embrace the philosophy of judging they have spent a lifetime fighting. Yet, in their hands, the activist and evolutive jurisprudential philosophy utilized by the Supreme Court since the mid-20th Century is used to unmake the substantive results for which it was crafted. It seems, then, that the authentic heirs of the activist mantle of the Warren Court are those jurists who, though professing a desire to destroy the Warren Court's legacy, have actually taken the work of the Warren Court to new heights, opening the way for another mutation of the Republic. Thus the ultimate irony: per curiam, concurrence and dissents have made it possible for others, at their leisure, to find, within the arcana and lacunae of the Constitution, other places from which it can be divined that states and their governments, that courts and their judging, can be limited or controlled.

constitutional law, federalism, states rights, jurisdiction, political theory