Tuesday, January 15, 2019

Neutral Data and Strategic Transparency: The Legal Battles Over the Political and Governance Effects of a Census Question On Citizenship Status in "U.S. in New York v. U.S. Dept. of Commerce" (file 15 Jan. 2019)

(Pix Credit U.S. Census Bureau)

As those with authority (and the "thought leaders" that help drive their thinking)  move more relentlessly to governance ideologies of data driven governance and transparency based accountability regimes, it is important to remember that every ideology tends to be applied strategically, and thus politically, to advantage those factions that make up the ruling groups of any community. The result is a a discursive fugue with two principle lines--the idealized ideological line, and the quite cynically manipulative interpretive line.  In the absence of mediating mechanisms, the two distinct lines can sometimes substantially diverge (e.g., Data, Analytics and Algorithm as Fetish and the Semiotics of Fake Facts).   

The politics of data and of the transparency regimes through which data driven governance could be legitimated is quickly embracing its character as politics by other means.  
Surveillance in our time is being transformed from a general and undifferentiated technique of governance to the active embodiment of governance itself. Surveillance is both the repository of governance norms and the discipline of those norms within any regulatory system. Surveillance is thus a bundle of assumptions, factors, assessments, and actions incarnated on the bodies of the regulated. Surveillance in its modern form represents another step in the perfection of social panopticism, of the creation of systems of social order that are self-regulating and internalized among those regulated. It represents a shifting of coercive power from the external-the state, the police, and the institution to the internal-the individual and the private. ("Global Panopticism: States, Corporations, and the Governance Effects of Monitoring Regimes," p. 112).
The consequences of these crisscrossing currents of politics and ideology at the center of the construction of data driven governance emerge clearly in the recent efforts of the Trump Administration to include a question about the citizenship status in the 2020 Census. As is increasingly common in contemporary America, those political issues, framed in law, are left to the courts. In New York v. U.S. Dept. of Commerce,  Case 1:18-cv-02921 (SDNY,  Filed 15 January 2019), a federal district court determined that the Secretary of Commerce unlawfully exercised what discretionary authority the law allowed in the ways he went about directing the insertion of the citizenship question that unlawfully annoyed some stakeholders and threatened others, in part because the decision was not  "reasonable and reasonably explained.” Mfrs. Ry. Co., 676 F.3d at 1096. The entire 277 pages of the opinion are worth reading for the complex interplay of politics, of the legal structures within which governance through data harvesting (strategically conceived), and of the role of the courts in mediating issues of data, data analytics and governance through mechanisms of more intensive structures for caging the exercise of administrative discretion, suggest the emerging American approaches to the construction of data driven governance. For the moment, the legalization of politics, even in the form of data driven analytics, appears still firmly embraced by the governing elites of the United States.  By the end of the opinion what emerges clearly are the convictions at data is never neutral, but is instead the expression of politics which is for Congress to control, and that transparency is not a primary premise of the gathering of information that is the Census. 

Most interesting, though, is the way that the courts have begun to use traditional mechanisms to deal with quite non traditional issues. These issue include the authority to apply politics to data--its formation and determination of what to harvest and in what form).  Is this a political issue (something hinted at by the Administration), or is it more an administrative decision with respect to which discretion is both channeled and constrained (something hinted at by the court). If Congress (and administrative agencies) can regulate through data and analytics, do both acquire a legislative character (and when appropriately delegated an administrative quasi legislative character) that can subject both the formulation of data and the construction of analytics (and the algorithms that give analytics political consequence) to the traditional constraints of statutes and administrative regulation, not indirectly through authorizing provisions, but directly as legislative acts in their own right. n a sense,  New York v. U.S. Dept. of Commerce, is merely the first salvo in what will be a very long conversation articulated as law and in courts.

Perhaps now is a good time to re-read  in the quite different light of the second decade of the 21st century an interesting foreign observation of American political culture written in the beginning of the third decade of the 20th century--Édouard Lambert,  Le Gouvernement des juges et la lutte contre la législation sociale aux États-Unis. L’expérience américaine du contrôle judiciaire de la constitutionnalité des lois (Paris, Marcel Giard & Cie., 1921. 276 pp.). Lambert spoke to the issue of division of authority over the machinery of politics in the United States; those insights and perspectives may be useful going forward in considering the division of authority among the political and judicial branches over governance modalities that the American founding generation might not have recognized.

A short news report of the case and issues follows (Judge rejects citizenship question for 2020 U.S. census) along with a small portion of the opinion.  One should expect that the issues developed in this opinion will be revisited on appeal.  But will the data related issues be understood in their own right? Stay tuned.

Monday, January 14, 2019

Concept Note: "Marxist Leninism 2.0--Popular Participation, Representation, and Constitutional Reform in Cuba;" Event to be Held at Penn State University 12 February 2018

These are quite dynamic times for democracy--as theory, institution, and system.  What had once been a term whose contours and applications appeared  to converge around global certainties has encountered, in this new era of national and international relations, challenges from a number of quite distinct sources.  Though much attention has been paid to the specific challenges within the structures of Western liberal democracies, Marxist Leninist political  communities have also encountered the challenges of democracy within their own political systems.

It is with that in mind that we have organized an event hosted at Penn State University on 12 February 2019 that may be of interest to those who study democracy in action and the theories around which those actions are grounded.

The event, Popular Participation, Representation, and Constitutional Reform in Cuba,  brings together scholars from Europe, the United States, and China to consider recent developments in Cuban democratic theory and practice from a national and comparative perspective. Speakers will present the results of their study of popular participation in Cuban constitutional reform: The Democratic Constitution of Illiberal States—An Empirical Approach to Theorizing Popular Participation, Representation and Constitutional Reform in Cuba. The core object of participants will be to seek to extract the fundamental theory and characteristics that emerges from the exercise in constitutional reform that began in Cuba in 2016 and ends with a national plebiscite in February 2019. The possibilities of democratic consultation in an illiberal  democracy suggests consequences not just for Marxist Leninist states but also for liberal democratic systems.

The Concept Note Follows. This event, together with China's Socialist Democracy described earlier (see here), are the two parts of a one day international conference: Marxist-Leninism 2.0: Theory and Practice of Emerging Socialist Democracy in China and Cuba, about which more information here.

Saturday, January 12, 2019

The Revised Draft Cuban Constitution Ready for Popular Vote--Comparison of Original and Revised Drafts

As part of the Coalition for Peace & Ethics's Technical Assistance Project--Reforma de la Constitución del Estado cubano 2018/Reform of the Cuban State Constitution 2018, we have been writing about the contemporary project of constitutional reform in Cuba. That project, as I have suggested in earlier essays, is both a reflection of and constrained by the political and economic model adopted by the Communist Party and embraced by the National Assembly in 2017.  This project a larger study of the development of theories of endogenous democracy that increasingly might be used as a lens through which to understand the way that democracy might be practiced within Marxist Leninist systems (e.g., here, here, here, here, here, here, and here). These we seek to theorize and to study in local context.

Since 2011 Cuba has sought to develop, refine and practice a form of this endogenous democracy in ways that its governing party determines fits within its ideological principles. The initial initiative was undertaken during 2010 and 2011when the Cuban Communist Party (PCC) sought broad input on a project of substantial reform and opening up reflected in guidelines for PCC leadership. Broad, but substantially well constrained consultation was attempted again in 2016 as the Party and its state apparatus considered potentially substantial reform to its economic and political model in its 'Conceptualization of the Cuban socio-economic socialist development model' ("Conceptualización del modelo económico y social Cubano de desarrollo socialista")

This model of public consultation was then broadened and applied to the project of constitutional revision that began with the adoption of the Conceptualization. The PCC presented a draft revised constitution for consideration by the National Assembly (as reported in official accounts here).  Once revised, it was distributed widely for popular consultation.  These occurred over a short period of time in last 2018.  Meetings were organized all over Cuba at which small groups were assembled to give their opinion of the draft constitution. These were then summarized and delivered to the National Assembly.  Additionally there was intense debate in social media and among groups with strong interests in various provisions of the constitution, not least of which was debate about the constitutional protection of gay marriage.  The National Assembly met again to consider the popular consultation over a two day meeting (official reporting here). As revised, the draft constitution will be presented for approval.

The National Assembly's now final draft  has been distributed.  It may be accessed HERE.  

The Coalition for Peace and Ethics has also prepared a side by side comparison of the original and revised draft that may be accessed HERE.

In future posts we will provide more information about our empirical analysis of the patterns of popular engagement with constitution making.  The analysis will be made available in a forthcoming manuscript, The Democratic Constitution of the Illiberal States—An Empirical Approach to Popular Participation, Representation and Constitutional Reform in Cuba.

The revised draft follows.

Thursday, January 10, 2019

Concept Note: "Marxist-Leninism 2.0: China’s Socialist Democracy"; Event to be Held at Penn State University 12 February 2018

These are quite dynamic times for democracy--as theory, institution, and system.  What had once been a term whose contours and applications appeared  to converge around global certainties has encountered, in this new era of national and international relations, challenges from a number of quite distinct sources.  Though much attention has been paid to the specific challenges within the structures of Western liberal democracies, Marxist Leninist political  communities have also encountered the challenges of democracy within their own political systems. 

It is with that in mind that we have organized an event  hosted at Penn State University on 12 February 2019 that may be of interest to those who study democracy in action and the theories around which those actions are grounded.   

The event, Marxist-Leninism 2.0: China's Socialist Democracy brings together scholars from Europe, the United States, and China to consider recent developments in Chinese democratic theory and practice from a national and comparative perspective. The core object of participants will be to seek to extract the fundamental theory and characteristics of the emerging systems, and to point to the likely paths to further development. 

The event Concept Note follows. Updated Event information may be accessed HERE. This event, together with Popular Participation, Representation, and Constitutional Reform in Cuba (see here), are the two parts of a one day international conference: Marxist-Leninism 2.0: Theory and Practice of Emerging Socialist Democracy in China and Cuba, about which more information here.

Wednesday, January 09, 2019

A Tale of Two Speeches--Evidence From the Front Lines of Political Rupture

(Pix credit HERE)

 The current state of politics in the United States is well known. I have little to say about the substance of what marks the current fault lines of American politics that has not already been analyzed from many perspectives and ideological baselines.  Those fault lines are much in evidence in the current political divisions around immigration.  Mr. Trump has sought several billion dollars to fund a wall of some sort on the U.S.-Mexico border; his political opponents have sought to block this request.  Broader political issues, along with control of the narrative of American politics are at stake, of course, but this is merely one eruption in that longer term battle among those who drive these things.

On the other hand, the current state of discursive aspects of political communication merits far more attention. A careful consideration of the way on which figures "talk" to each other as they appeal to the masses through driving social media institutions, the federal government has effectively been shut down for lack of funding, provides insights about the way that discourse itself substantially shapes and limits the ability of people to respond in negotiation. The power of discursive tropes to hobble political discourse, especially in crisis, was much in evidence in the context of the current impasse over the border wall and the government shutdown ('I said bye-bye!' Trump storms out of Situation Room talks with Chuck and Nancy when she says he WON'T get money for his border wall even if he ends government shutdown – then tweets that it was 'a total waste of time').

The most remarkable thing about the discursive style of all speakers is the reduction of discourse to sound byte.  A careful reading of the three statements that follow below reveal an almost ritualistic pattern. Each speech can be reduced to several key phrases around which almost verbal "white noise" is inserted. In a lot of ways the discursive styles of the speeches read more like short commercials--each share the character of producing words and images that are meant to lead up to the key slogan that sums everything up.  But interestingly, shorn of their context, it is not always clear who is saying which:
"This is a humanitarian crisis, a crisis of the heart and a crisis of the soul;" "The President has chosen fear. We want to start with the facts;" "I would ask, imagine if it was your child, your husband or your wife whose life was so cruelly shattered and totally broken;"  "This is a choice between right and wrong, justice and injustice;" "Division, not unity. Make no mistake;" "The symbol of America should be the Statue of Liberty, not a thirty-foot wall;" "The only thing that is immoral is for the politicians to do nothing and continue to allow more innocent people to be so horribly victimized."  
And it is those slogans rather than the words that populate the rest of the respective addresses that then drive the interactions among actors.  

To get a better sense of the way that discourse now constrains and shapes the wiggle room of political discussion, I have included below the relatively short speeches of President Trump, and the responses of Representative Pelosi and Senator Schumer.  It is worth reading these not so much for their substantive content as for the way their discursive style reveals the quite different ways in which they view a shared reality.  That style has much to say about the state of American politics in the forms of its expression at the moment. 

Tuesday, January 08, 2019

When Private Approaches Go Public: Brazil Establishes National Guidelines on Business and Human Rights: Decree No. 9.571 (21 Nov 2018)

Especially since the start of international efforts to create a single comprehensive treaty for business and human rights (see, e.g., here, here, and here), states have started to adopt legislation that regulates some aspects of the human rights effects of economic activity. This legislation has widely varying scope and effect.

Much of this legislative effort has been directed at specific issues--so-called modern slavery and supply chain management (e.g., here, here, and here).  These tend to adopt disclosure related obligations (here, here).  The object is to create second order regulation--by imposing obligations to disclose with respect to compliance with certain (usually non legal or binding standards within a domestic legal order) the state seeks to effectively impose the underlying obligations on enterprises who wish to avoid the consequences of "bad" disclosure.  This effectively uses a form of regulatory governance in which markets provide the incentive to legalize substantive obligations within enterprises without the need to adopt law.  

Brazil has appeared to open the door to another path--one that echoes developments in private governance much more than the direction of public governance through disclosure regimes. This new approach was embedded into law in Brazil when in November 2018 it adopted a decree establishing National Guidelines on Business and Human Rights: DECRETO Nº 9.571, DE 21 DE NOVEMBRO DE 2018 (Estabelece as Diretrizes Nacionais sobre Empresas e Direitos Humanos). The text of the new regulations follows with a brief analysis produced by Leticia Sarto for Marquez Filho Advogados (Portuguese original with my crude English translation). This is preceded by my brief preliminary observations.

Saturday, January 05, 2019

New Paper Posted: "Systemic Constraints on the Human Rights Obligations of States, and State Owned Enterprises"

I take this opportunity to let folks know that I have recently posted a draft of a new essay entitled: Systemic Constraints and the Human Rights Obligations of States and State Owned Enterprises.

A little bit about the essay: In the contemporary global order constructed through markets and multilateral frameworks of regulatory governance, the state occupies a curious place.  The state retains its core function as an apex form of regulation within its territories (even as the forms that this regulation takes shifts from statutes, to administrative rules, to data driven accountability based governance).  At the same time, the state has become an important participant within the markets it itself regulates.  Through its state owned enterprises (SOEs) and other instruments, the state engages in economic activities within its territories as regulator and producer; outside its territories those instruments of state economic power operate within complex and evolving law, norms and rules functioning like other commercial ventures in global markets. SOEs also share the state's dual character--as market participant and as the projection of state power in markets. This dual character shapes the way in which it is possible to construct (and constrain) regulatory structures for the responsibilities of business to respect human rights. That tension between human rights regulatory structures and the dual character of SOEs is the object of examination of the essay. 

As always, comments, suggestions, reactions are most welcome.  A later version of this essay will appear in Research Handbook on Human Rights and Business (Surya Deva, ed., Edward Elgar forthcoming 2019).    

The essay may be accessed HERE.  The abstract and introduction follow below.

Friday, January 04, 2019

Thursday, January 03, 2019

"Globalization, Sustainability and Firm Cultures"-- Program of the AALS Section on Economic Globalization and Governance Presented at the 2019 AALS Annual Meeting

The Association of American Law Schools (AALS) sponsors an annual meeting attended by substantial numbers of academics based primarily in U.S. law schools. This year, the annual gathering is being held in New Orleans, Louisiana from Wednesday, January 2 – Sunday, January 6, for the 2019 Annual Meeting. Under the theme of “Building Bridges.”  Wendy Collins Perdue, the AALS President noted in her "President's Message", in part that:
Lawyers are not social workers, but they are, as Lon Fuller put it, architects of social structure. And in that role as architects, they can be—we can be—enormously helpful in reconnecting a fractured world. That is to say, in building bridges. So that is my theme for the year: building bridges. I hope that we can put on display our traditions of professionalism, civility, and reasoned disagreement, and inspire the next generation to “think like a lawyer” about society’s problems: to listen, consider, reason, collaborate, resolve, and even heal." (President's Message)
The AALS' many interest sections sponsor programs that tend to highlight and interrogate current issues of substantial concern to its members and of genera interest to the legal academic community.

I am a member of the AALS Section on Economic Globalization and Governance, and its chair elect.  Our current chair, Lynne L. Dallas, University of San Diego School of Law, developed a quite provocative program, Globalization, Sustainability and Firm Cultures. The program is one that highlights many of the critical issues at the intersection of law, economics, national, and international, public and private law that continue to bedevil actors and institutions within what we euphemistically call globalization. Its investigation is enriched by the scholars contributing to that discussion, Miriam A. Cherry, Saint Louis University School of Law, Virginia Harper Ho, University of Kansas School of Law, Jeff Schwartz, University of Utah, S.J. Quinney College of Law, and me.

The details of the Section Program follows below, along with very brief thoughts.

Tuesday, January 01, 2019

The Orishas Speak: The 2019 Letter of the Yoruba Association of Cuba (Letra del Año para el 2019 de la Asociación Yoruba de Cuba) (Refran: "Las raíces de IFA son amargas y el fruto es dulce")

(Pix CiberCuba Jan 1, 2019)

Every religion connects the structures of divinity to the human communities around which their worship is structured and social, political, economic, and cultural communities are organized. To that end, the priestly caste platys a very specific role as mediator, interpreter, and as the incarnation of a social order grounded in divine principles and rules.
In most states, the priestly role has been transformed.  But it is useful, as one examines the priestly role in modern western states, to consider a more traditional relationship between the priest and the state.  One of the more interesting manifestations of the role of religion within political life is that of the priests of the practitioners of the old religions of Africa as re-established in the Western Hemisphere, particularly in Marxist-Leninist Cuba.  (here)
That priestly role is exercised in very specific ways among the great traditions of Western Religions: Judaism, Christianity, and Islam.  It shows a more variegated vigor among Non-Western religious traditions.  These are well known.  Yet most of these have sought to marginalize the great traditions of African religions as a barbaric variant of primitive idol worship that had been suppressed elsewhere.  And yet those religious traditions remain as vibrant, their theologies as complex, and their practices as rich as those other religious traditions that have sought over many centuries to supplant them.  And so it was in the early hours of the 1st of January that leaders of the various branches of the Afro Cuban religious communities met. 
Babalawos de diferentes ramas religiosas de Cuba han vuelto a reunirse liderados por la Sociedad Cultural Yoruba y el Consejo de Sacerdotes Mayores de Ifá, para dar a conocer sus predicciones para el año que empieza este martes 1 de enero: la Letra del año 2019. La ceremonia comenzó este 31 de diciembre y se ha extendido hasta este 1 de enero. Del Oráculo de Ifá salen las siguientes recomendaciones y advertencias que deberían seguirse a lo largo de este año para conseguir salvar todos los obstáculos. [Babalawos of different religious branches of Cuba have returned to meet led by the Yoruba Cultural Society and the Council of Major Priests of Ifá, to present their predictions for the year that begins this Tuesday, January 1: the Letter of the year 2019. ceremony began on December 31 and has been extended until January 1. From the Ifa Oracle, the following recommendations and warnings are issued that should be followed throughout this year in order to overcome all obstacles.] (CiberCuba,  Adelanto: Letra del Año 2019 para Cuba)
And so the great priestly caste of the Cuban branch of the great West African Religions have once again come together to seek divine guidance for the nation, and its religious communities, for the year to come.  To that end, at the start of every year the leaders of the great indigenous religion of Cuba conduct, through a series of ceremonies, a general divination for the country.  The results of that divination, and its advice, is organized into a "Letter of the Year" (Letra del Año) (on the history of the Letras del año see HERE (Historia de la Ceremonia de la Letra del Año )).
La Letra del Año comenzó a emitirse en Cuba a finales del siglo XIX, sin poder precisar la fecha exacta. Por datos y documentos se revela que babalawos procedentes de las diferentes ramas religiosas existentes en el país comenzaron a reunirse para efectuar con todo rigor las ceremonias establecidas, que concluían el primero de enero con la apertura de la Letra del Año. (EcuRed, Letra del Año) (The Annual Letter was first produced sometime near the end of the 19th century.  Existing evidence suggests that the Babalawos of the different branches of the faith in the nation started to gather together  to invoke with all rigor the appropriate ceremonies that concluded on the 1st of January) with the opening of the Letter of the Year).

The object of the annual letter is to provide guidance for the nation and its people.  More specifically it is meant to provide guidance for faith practitioners otherwise unable to receive more specific guidance within their own branch. For the last seven years I have written of the annual letter of the Cuban Council of the High Priests of Ifá (Consejo Cubano De Sacerdotes Mayores De Ifá), the practitioners of traditional religion brought over from West Africa with the slave trade and now naturalized as a powerful indigenous religion throughout the Caribbean and now growing in the United States. (e.g., 2018, 2017, 2016, 2015; 2014; 2013; 2012). The 2018 Letter was particularly relevant--it stressed that 2018 was to be the year of great revelaitons that would begin to have transformative effects (more here 2018)

2019 marks the fourth year of an important change, in which many of the most important branches of the faith came together to produce a unified letter. ("El documento, que copiamos íntegramente a continuación, incluye el signo y el orisha regentes, además de la oración profética. El documento se ha elaborado conjuntamente entre la Asociación Yoruba de Cuba y la Comisión Organizadora para la letra del Año Miguel Febles Padrón." (here); more in English HERE).

This year was  different in another way.  For a few hours early on January 1st, there appeared to be two distinct letters distributed on the Internet.  The first appeared to be the full Letra del Año and was posted to two web sites, one from Miami and the other from Madrid, but both with deep connections to the religious community in Cuba.  At the same time the official sites in Cuba posted the more traditional Adelanto de la Letra del Año, de la Sociedad Cultural Yoruba de Cuba (Preliminary Letter).  This one included a quite different set of divination. This one was thereafter reported in the official press in Cuba and the U.S. (e.g., here, here, and here). One of the two websites that had posted the original full letter then switched to the Adelanto version; the other had not as of the afternoon of 1 January (here) along with one other (here), though curiously the later one posted on 31 December 2018. By the end of the day, however, the websites had all eliminated the alternative version and posted the now official version (in full HERE).

I post both versions below. Both are worth considering A copy of the Full version appeared on the Internet towards evening 1 January and also follows below along with the Adelanto.  I follow each with my own brief reflections on the very different key oddus which form the basis of the divination in both official and the "other" version.