From time to time I post manuscripts or works in progress
to the web. Usually the manuscripts, with abstracts, can be
found on the Social
Science Research Network.
Recent Manuscripts:
A. ECONOMIC GLOBALIZATION ASCENDANT
AND THE CRISIS OF THE STATE: AN ESSAY ON FOUR PERSPECTIVES
- 16 Berkeley La Raza Law Journal – (forthcoming 2006)
(
ABSTRACT | 
PDF
DOWNLOAD)
B. THE AUTONOMOUS GLOBAL ENTERPRISE:
ON THE ROLE OF ORGANIZATIONAL LAW BEYOND ASSET PARTITIONING
AND LEGAL PERSONALITY - 41(4) Tulsa Law Review (forthcoming
2006)
( ABSTRACT
| PDF
DOWNLOAD)
C. MULTINATIONAL CORPORATIONS AND THE
RISE OF GLOBAL SYSTEMS OF PRIVATE LAW: THE EXAMPLE OF WAL-MART
AS GLOBAL LEGISLATOR, CIVIL SOCIETY AND THE MEDIA - U. Conn.
L. Rev./Conn. J. Int’l L. – (forthcoming 2007).
( SYNOPSIS
)
D. THE RULE OF LAW, THE CHINESE COMMUNIST PARTY, AND IDEOLOGICAL
CAMPAIGNS: SANGE DAIBIAO (THE “THREE REPRESENTS”),
SOCIALIST RULE OF LAW, AND MODERN CHINESE CONSTITUTIONALISM,
16(1) J. Transnational L. & Contemp. Problems (forthcoming
2006).
(
ABSTRACT | PDF
DOWNLOAD)
E. REIFYING LAW: “LET THEM BE LIONS, BUT YET LIONS
UNDER THE THRONE” (http://lcbackerblog.blogspot.com/2006/10/reifying-law.html).
A. ECONOMIC GLOBALIZATION ASCENDANT
AND THE CRISIS OF THE STATE: AN ESSAY ON FOUR PERSPECTIVES
16 Berkeley La Raza Law Journal – (forthcoming 2006)
- PDF
DOWNLOAD
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. 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.
B. THE AUTONOMOUS GLOBAL ENTERPRISE: ON THE ROLE
OF ORGANIZATIONAL LAW BEYOND ASSET PARTITIONING AND LEGAL
PERSONALITY
41(4) Tulsa Law Review (forthcoming 2006) -
PDF
DOWNLOAD
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.
C. MULTINATIONALS AND THE RISE OF GLOBAL SYSTEMS
OF PRIVATE LAW MAKING: THE EXAMPLE OF
WAL-MART AS GLOBAL LEGISLATOR, CIVIL SOCIETY AND THE MEDIA
SYNOPSIS:
I am going to be focusing on Wal-Mart and the construction
of a global system of private law making spearheaded by
an important group of large multinational corporations.
This system of private global lawmaking by multinationals
is rising in the shadow of, and parallel with, less successful
attempts by national and international bodies to develop
a system of public law rules to govern multinational behavior.
I will use as my focus the system of rules that find expression
in supplier or supply chain agreements, its effects on conduct
of small businesses worldwide, and the relationship between
Wal-Mart as legislator and the global civil society apparatus
as monitors and stakeholders. In some ways, Wal-Mart appears
to be leading the way in effective corporate legislation,
the effects of which can at times be more powerfully felt
at the local level than national legislation. Other times
this private legislation competes less successfully with
developed systems of statutory law. More importantly, modern
global law making of the kind engaged in by Wal-Mart relies
on the participation of key elements of civil society to
help determine the content of these provisions and to act
as monitors of supplier conduct. It also relies on the participation
of media, both to publicize breaches of Wal-Mart’s
conduct norms by its suppliers and the efforts of Wal-Mart
to correct these breaches. Wal-Mart and its global systems
of supplier agreements evidences how large multinational
corporations, elements of civil society and the media increasingly
perform powerful quasi governmental roles, roles encouraged
by the human rights establishment in Geneva and loathed
by most Western states, at least as official policy. For
an example I will use the recent flap about substandard
working conditions for workers at a Wal-Mart supplier in
the Kingdom of Jordan and the recent efforts by German Wal-Mart
workers to challenge certain behavior norm provisions in
Wal-Mart’s norm codes. These episodes expose the emerging
parallel private law system quite nicely.
D. THE RULE OF LAW, THE CHINESE COMMUNIST
PARTY, AND IDEOLOGICAL CAMPAIGNS: SANGE DAIBIAO (THE “THREE
REPRESENTS”), SOCIALIST RULE OF LAW, AND MODERN CHINESE
CONSTITUTIONALISM, 16(1) J. Transnational L. & Contemp.
Problems (forthcoming 2006). -
PDF DOWNLOAD
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
(http://english.people.com.cn/constitution/constitution.html)
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 misses an important recent development
in Chinese constitutionalism—the growing importance
of writing 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 Xiaping 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.
