Sunday, September 23, 2018

Data, Analytics and Algorithm as Fetish and the Semiotics of Fake Facts

 (Pix c Larry Catá Backer 2017)

Generally one ought to become worried--as one ought often to be worried in the United States--when  intellectuals start using ordinary words as fetishes.  One speaks of abstract fetishes here rather than either the traditional tangible fetish (an inanimate object revered or utilized for its connection with extra human forces) or increasingly in sex obsessed America with forms of sexual desire gratified through objects or performance (usually to an extent judged abnormal by those charged with defining the "normal").  Fetishes, then, are objects with utility; they are objects invested with properties that belie their "ordinary use" and indeed, their power comes from the extraordinary effect they might have when invoked during the course of certain rituals designed to "activate" them. Abstract fetishes, on the other hand, are activated by invocation.  And in that invocation through utterance they can be quite powerful. Americans are found of the use of  certain terms for that effect: "liberal," "racist," "Islamophobe," "antisemite," among other even more powerful invocation words projected through utterance at a specific target, have been increasingly used in that way, and sometimes with extraordinary effect.  What makes them powerful is their ability to combine data, analysis, and judgment within one word without the bother of exposing any of those elements to inspection or response.

Now ironically, data, analytics, and especially algorithm themselves may also be acquiring fetish cult status in the U.S. (and elsewhere of course). They have ceased to serve primarily to mean something in an of themselves. That original "something" might usefully be understood as the core of semiotic triadic relations between object, sign, and interpretant (for easy to read background, here). Instead they now serve as judgments which when invoked are expected to have a  calculated set of responses both against those against whom it is being used, and from those who are connected to them (employers, customers, friends, family, the state, etc.).  One sees this in a number of distinct contexts around either the value or threat posed by "big data", data analytics, and especially "algorithms." These are understood as "things" with specific powers that can be invoked by those with the technology and vision to use them (some discussion of sources here).  

This post attempts a very simple, and perhaps simpleminded dissection of the fetish of data, of analytics and of algorithms.  The object to to start, very tentatively, to consider the difficulties of extracting the meaning of each of those terms in a context in which law, policy, business are increasingly relying on the three in their regulatory structures, compliance, risk management, social control, and policy judgments. In the process one can more clearly see how carelessness--strategic or otherwise--can turn these fetishes into quite powerful tokens of misdirection, much less misinformation. I will take them one at a time.   

Saturday, September 22, 2018

"Not a Zookeeper's Culture:" Thoughts on Hispanic Heritage Month Twenty Years On

(Pix from video that may be accessed HERE)

The recognition of one of the oldest elements that make up the rich diversity of American culture came only recently in the history of the nation. Hispanic Heritage week was recognized officially during that transformative period that marked the 1960s by President Johnson, and expanded into a moth long observation during the presidency of Ronald Reagan in 1988, when legislation to that effect was enacted. Hispanic Heritage Month is now celebrated from 15 September to 15 October; the start date connected to the independence days of many Central American Republics, whose independence days are celebrated between 15 and 21 September.

This year for Hispanic Heritage Month I revisit something I wrote in 1998, “Not a Zookeeper’s Culture: LatCrit Theory and the Search for Latino/a Authenticity in the U.S.,” Texas Hispanic Journal of Law & Policy 4:7-27 (1998). I wondered whether much has changed over the twenty years that separates my thinking about the conception and self conception of this very fragile concept--of an orthodox "hispanicity" (itself  a politically sensitive term) from the political landscape within which we find ourselves now. Latcrit theory, of course, might have moved on. Beyond that, I am not sure much has changed; perhaps lines have hardened (on one end) and dissipated almost entirely on the other. I suspect that the notions of ethnic community increasing produce a contradiction--the lived experience of community is increasingly remote from its political expression, especially as it is driven by civil and political society.  And, of course, what remains the same is the scope and intensity of argument about all of this.  My principal concern--the outsider within outsider groups--still looms large and is more visible at the level of groups but not at the level of the individual. And perhaps that is the ultimate marker of our times--as the political and societal conversation continues to coalesce around essentializing markers (and lived assertions of membership, the individual is both abstracted and reconstituted as an expression of orthodox characteristics, against which individual conformity if judged and deviation disciplined. In this age n which ethnic and other non-political communities must renegotiate their relationships with dominant political structures in many places, these challenges might be more important now than they were twenty years ago. 

Wednesday, September 19, 2018

Flora Sapio: Comments on the "Zero-Draft," the first official draft of the legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.

In July 2018, the open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights released the first official draft of the legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.

The Business and Human Rights Resource Center has called this  “Zero Draft” "a key milestone in a complex and lengthy process, against the backdrop of a political context which has become increasingly challenging since the UN Human Rights Council voted by majority to begin negotiations in June 2014." (Business and Human Rights Resource Centre, Reflections on the Zero Draft).

My comments were circulated HERE

My colleague, Flora Sapio (Uni Naples and CPE) also has recently prepared comments to the Zero-Draft.  With her permission I post them below.

Tuesday, September 18, 2018

Making Sausages?: Preliminary Thoughts on the "Zero-Draft," the first official draft of the legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.

(Pix © Larry Catá Backer 2018)

"Laws are like sausages. It’s better not to see them being made" (sometimes attributed to Bismarck). Its earlier variant is attributed to lawyer-poet John Godfrey Saxe (“Laws, like sausages, cease to inspire respect in proportion as we know how they are made.”) (See, Quote Investigator).  Either way, thoughts of this quote came to mind when, in July 2018, the open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights released the first official draft of the legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises. (Text of the Zero-Draft also follows below).

The Business and Human Rights Resource Center has called this  “Zero Draft” "a key milestone in a complex and lengthy process, against the backdrop of a political context which has become increasingly challenging since the UN Human Rights Council voted by majority to begin negotiations in June 2014." (Business and Human Rights Resource Centre, Reflections on the Zero Draft).

BHRRC has also quite usefully provided a space where global thought leaders can reflect publicly on the Zero Draft. This growing conversation will enrich consideration of this effort, whatever the fate of this Zero Draft instrument. To date there have been marvelous contributions from  Phil Bloomer and Maysa Zorob, Business and Human Rights Resource Centre-  Read more (The continued implementation of the UNGPs and the development of a binding Treaty can and should advance simultaneously, and both stand to benefit from doing so); Charlie Holt, Shira Stanton and Daniel Simons, Greenpeace-  Read more  (Looking at the zero draft through the lens of how such an instrument can contribute to a green and peaceful future, there are still limitations that must be addressed); Professor John G. Ruggie, Harvard University- Read more ((...)a truly foundational challenge for the proposed treaty is how to define and operationalize “business activities of a transnational character.”); Richard Meeran, Leigh Day- Read more (If effectively translated into national laws, the provisions of the Zero Draft would lower the legal and procedural barriers to MNC parent company liability);  Dr Nadia Bernaz, Wageningen University- Read more (The Draft Treaty on Business and Human Rights stays clear of controversy surrounding corporate human rights obligations and criminal responsibility under international law); and Surya Deva, City University of Hong Kong- Read more, Part I and Part II ((...)neither voluntary initiatives alone nor measures merely at national level will ever be adequate to regulate effectively the conduct of today’s businesses). Additional news, commentaries and statements on the Treaty are available here.

My colleague Flora Sapio (UniNaples and CPE) and I both wanted to add our perspectives to this important and lively discussion.  This post includes my own preliminary thoughts about the Zero Draft.  Flora Sapio's comments may be accessed HERE.

I start from the premise that what is intended is the creation of law.  That is, after all, the object of much of this effort.  But the intent is not merely to create law, but to develop a structure of meta-law that itself  provides a coherent (and mandatory) framework for the transformation of the domestic legal orders of those states adhering to it (and at its most ambitions) also coercing those states that reject the treaty through the logic of a global regulatory governance system that effectively internationalized legal norms through the private law of global production chains. In a sense, the Zero-Draft project is a reactionary initiative--times have to some extent passed it by as the realignment of the United States and China within their bilateral multilateralism projects (Belt and Road Initiative and America First) may change the supra national landscape within which it is possible to speak about conventions and the supremacy of one binding set of international norms now transformed into legal obligations.  For all that, the Zero-Draft is worth taking seriously.     

Monday, September 17, 2018

Johnathan Kiwana: "48 Hour Rule: Right to Privilege; The Judiciary Should Let Us Know!"

There are exciting young voices coming out of Africa. They are especially strong in those areas where Africa is usually considered the perpetual student--Constitutional law and practice high among them. It has been my great pleasure to get to know some of these young lawyers during the course of their post graduate studies at Penn State.

I am delighted to highlight some of their work form time to time. For this post I include an excellent short essay, "48 Hour Rule: Right to Privilege; The Judiciary Should Let Us Know! which follows below. It considers constitutional implications of a 48 hour detention rule in Uganda.

Jonathan is currently an LLM Candidate at Penn State Law. Prior to this Jonathan practiced law with the Kampala office of Bowmans, a corporate commercial law firm operating across Africa. His practice majorly entails legal and transactional advice to financial institutions, fin-techs, multi-nationals and energy companies on their operations in East Africa. While practicing Corporate-Commercial law, Jonathan maintains a keen interest in matters of Constitutional Law, Human Rights and Social Justice. He has previously interned with the United Nations International Criminal Tribunal for Rwanda and volunteered with International Justice Mission advocating for property rights of widows in rural Uganda.

Jonathan is licensed with the Ugandan bar and a member of Uganda Law Society and the East African Law Society. He has also published an anthology entitled ‘Muselings; A Young man’s Meditations on Life, People and Growing up’ and several newspaper articles.

Sunday, September 16, 2018

The EU Parliament's "Statement on China-EU Relations"

Europe appears to be faced, again, with the hard task of balancing its relations among frenemies while retaining its wealth.  To that end it works from its strengths: it barters influence and the influence of ideas for material advantage; the influence of ideas, in this sense, may be Europe's most potent remaining basis of power.  It rides on the embers of empire, and Europe's still potent productive and consumptive capacities, to serve a a global superego. It has been seen in earlier guises through the so-called "Brussels Effect" campaign (to embed European values in European regulations to which those seeking entry in European markets would have to conform).  China, the United States, and Russia are left to squander muscle as they will, always subject to the legitimating judgment of this superego. 

All of this is much in evidence as the EU seeks to comprehensively structure its relations with China.  This is a critical task for Europe now.  To that end the European Parliament has produced a well crafted and quite complex Statement on China-EU Relations. Over the course of ninety-two (92) paragraphs (preceded by a lengthy chapeau that sets out the sources and character of the legal and policy basis of what is to come) the EU seeks to outline both a set of principles framing legitimate parameters for relations, and then prodding, begging, cajoling, praising and suggesting a very large array of actions to conform EU-Chinese relations to these structuring principles that Europe has advanced as the basis for its relations with China. 

This post includes the text of the EU Parliament's Statement on China-EU Relations (adopted Wednesday 12 September 2018) (2017/2274(INI)) along with very brief comments.

Friday, September 14, 2018

7th U.N. Forum on Business and Human Rights 26-28 November 2018: Concept Note and Program

One of the highlights of the "human rights" season is the annual meeting organized by the UN Working Group for Business and Human Rights.  It takes place at the end of November in Geneva and brings together many of the great stakeholders in the law, policy, and business of human rights in international economic activity; at least those who can afford the trip.

It has been my practice to observe and comment on aspects of this gathering every year.  Sometimes those are preceded by critical commentary on the Working Group's annual Report (see, e.g., here, and here).  Sometimes the gathering serves as an unconscious canvas on which larger movements in this field may be observed.  

This year will be no different.

For this Post I include the preliminary information just released by the Forum organizers: Concept Note, Preliminary Program, and Registration information. Each follows below.

Please register online through the Indico platform

Thursday, September 13, 2018

"Socialist Constitutional Democracy in the Age of Accountability (责)"; My Remarks for the European China Law Studies Association Annual Conference, Torino, Italy 14 September 2018

This year, a group of superb scholars will come together in Torino, Italy, to discuss a broad range of current issues touching on China and its increasingly influential role in the world. during the course of the 13th Annual Conference of the European China Law Studies Association (key topics for the 13th Annual Conference HERE). Since its founding in 2006, the European China Law Studies Association has become a major international venue for scholars and practitioners who are engaged in the study of Chinese law, from both comparative and interdisciplinary perspectives.

For this year's conference I participated in a panel,  The Emerging Structures of Chinese Constitutionalism in the New Era, organized by Flora Sapio (more on the panel here).

The text of my remarks for the panel,  "Socialist Constitutional Democracy in the Age of Accountability ()," follow below.

The Remarks (with related PowerPoint images) may be downloaded HERE (large file): Backer_Remarks_ECLSA2018-FINAL

The Remarks TEXT ONLY may be downloaded HERE: Backer_Remarks_TextONLY_ECLSA2018

The PowerPoints may be accessed HERE:  Backer_ECLSA_2018

Tuesday, September 11, 2018

Ruminations 80: Very Brief Thoughts on the Anniversary of 11 September 2001

(Pix Wikimedia)

The events of 11 September in New York, Washington, D.C., and over the skies of Western Pennsylvania caused tremendous personal suffering.  The loss of life reverberated out from the crash sites themselves to envelop family, friends and communities. It is this loss, and its effects, that ought to be at the center of the commemorations of the day.  That memory, and that pain, will mellow with time, though its significance will remain undiminished. But those were not the only lives lost. Equally important, and also worth commemorating today, are the lives lost from this day forward, as the United States sought to protect its honor, its interests, and dignity of the lives initially lost.  That has been an equally painful series of events for individuals, families and communities that will be affected for generations. I lack the power of eulogy for a tragedy so great and so long lasting.   I can grant no peace to those who have died and those who remain, nor power to bless and heal. But I like others do what we can by marking the day as a public sign of inward solidarity, by contemplating its significance, and by considering the relationship of this tragedy to us all.  

11 September commemorates something else as well. 

Monday, September 10, 2018

Thoughts on John Bolton: Address to the Federalist Society, Washington, D.C. on US policy toward the International Criminal Court

On 10 September, John Bolton, who serves as the 27th National Security Advisor of the United States, delivered a speech to the Federal Society in Washington, D.C. Mr. Bolton is a senior administration official and an influential advisor.  He is also a senior leader among the factions within the U.S. and global intelligentsia now fighting a quite aggressive war for control of the narrative, agenda and context of orthodoxy in the "political line" of the West, even as the West confronts a number of challenges from other orthodoxies abroad.  He is speaking to issues at the core of the projects of a generation or more of global elites who saw in the International Criminal Court a critically important component in the move toward the regulation of state and state based conduct and the judicialization of broad categories of conduct that, at least at a theoretical level, had been deemed beyond the bounds of civilized society (however that is defined). And Mr. Bolton offers an action plan, sweeping in its rejection of the positions of prior U.S. administrations:
* We will negotiate even more binding, bilateral agreements to prohibit nations from surrendering US persons to the ICC. And we will ensure that those we have already entered are honoured by our counterpart governments.
* We will respond against the ICC and its personnel to the extent permitted by US law. We will ban its judges and prosecutors from entering the United States. We will sanction their funds in the US financial system, and we will prosecute them in the US criminal system. We will do the same for any company or state that assists an ICC investigation of Americans.
*  We will take note if any countries cooperate with ICC investigations of the United States and its allies, and we will remember that cooperation when setting US foreign assistance, military assistance, and intelligence sharing levels.
* We will consider taking steps in the UN Security Council to constrain the court's sweeping powers, including ensuring that the ICC does not exercise jurisdiction over Americans and the nationals of our allies that have not ratified the Rome Statute. (Aljazeera, Full text of John Bolton's speech to the Federalist Society)

It will come as now surprise, then, that this speech will produce a substantial amount of reaction (e.g., press reaction here, here, here, here, here, and here).  More will follow in the coming days, especially as states, international organizations, civil society, and aggregations of the intelligentsia on every side of this issue marshals their forces for their discursive fusillades.  

This post includes Mr. Bolton's speech and some brief reflections. The Reflections may be downloaded here as a CPE Background Brief.

The Video of the speech may be accessed HERE.

The White House "Fact Sheet" may be accessed HERE and below.