Monday, May 22, 2017

Sexual Assault at the American Law Institute (ALI)--The ALI and its Model Penal Code at the Center of the Controversies on the Sexualization of Criminal Law and the Criminalization of Sexual Rules

For the last several years, the American Law Institute has been embroiled in a quite lively controversy over the specific language of proposed structures of the criminal law of sex and sexual conduct.  This controversy reflects not merely the technical issues of drafting a fair set of statutory provisions that reflect a consensus of underlying principles of sexual conduct.  Rather, the controversy masks the real, and substantially unresolved societal framework for understanding what is sexual and what is not, and more importantly, for determining the extent of the legitimate authority of the state to extend its criminal law to conduct deemed both sexual and, by its nature, also criminal. What makes the conflict especially noteworthy is the way it marks a great shift of emphasis from the middle of the last century.,  In the 1950s, the ALI also faced great conflict in its approach to the Model Penal Code.  But the conflict revolved around decriminalization (e.g., here).  Today, the reverse appears to be true--conflicts revolve around two trends that are conflated in current discourse.  The first is the broadening of concepts of sexualization touching on the character of of conduct (see, e.g., here, here, here, and here).  The second is the criminalization of conduct now sexualized (e.g., here, here, and here).

I explained the context of the current controversy last year (here):
In 2012, the American Law Institute (in which I am a member), agreed to launch a revision of its famous and quite influential Model Penal Code to focus specifically on rising issues of "sexual assault and related offenses." The project It was acknowledged at the time that the issue of the decriminalization of certain conduct around sexual activity "deals with some of the most controversial matters on the current public agenda." (Richard L. Revesz, Director ALI in Forward ALI Model Penal Code: Sexual Assault and Related Offenses (Tent. Draft No. 2 (April 15, 20916). The project has been overseen by its reporter, Stephen J. Schulhofer and its associate reporter, Erin E. Murphy, both of NYU Law School. But it has been highly controversial as I reported in 2014 (see, Sexual Assualt at the American Law Institute--Controversy Over the Criminalization of Sexual Contact in the Proposed Revision of the Model Penal Code).
 The controversy is well evidenced by the history of this project before the ALI. In 2013, a draft on procedural and evidentiary principles applicable to the sexual assault provisions (¶ 213 of the Model Penal Code) and on collateral consequences of conviction was presented to ALI for discussion but no vote. For the 2014 ALI meeting, a tentative draft containing substantive material for discussion and an evidentiary section (proposed revision ¶ 213.7) for approval was submitted but no vote was taken. Again, for the 2015 meeting a draft on substantive and evidentiary material was presented for discussion but no vote. For its 2016 meeting, the ALI is asked to consider for approval two key provisions: ¶ 213.0(3) (definition of consent) and ¶ 213.2 (sexual penetration without consent).
The issue produced substantial controversy and opposition at the ALI's 2016 meeting (here, and here). Now a revised version is back, and the controversy remains lively.  This post includes the text of the Memorandum circulated to ALI members in opposition to the revised  provisions introduced at the 2017 ALI Meeting. Additional background materials may be found here and here.

Thursday, May 18, 2017

Podcast Interview Maastricht LawTalk on U.S. Law, "the Anglo-American legal order really that different?"

During a visit to Maastricht University faculty of Law this week I was invited to spend some time to speak about U.S. law, its peculiarities and operation in the United States.  The interview has conducted as part of the Maastricht LawTalk series.  Maastricht LawTalk is an independent student run enterprise that describes itself this way:
Legal topics are not always easy to understand, even though they should be. Yet everyone engages in legal activities, be it in a criminal sense, in contractual agreements, or performing a duty. Knowing how to behave and what to do is indeed very useful.

Maastricht Law Talk offers talks about comparative law in the context of the European Union since October 2016. What is law and why do we – as a State – harm others with sentencing? The title honours the importance of the Treaty of Maastricht for the European Union.
It was a rare privilege to speak to European students about the basic nature of U.S. law and its legal system.  It was refreshing to find interest in the fundamental ordering of our system of law and government, and then to speak to the way in which that core theory informs the day to day operation of a law system "on the ground." My thanks to Benedikt Schmitz for putting this together and for his excellent questions. 

The podcast interview may be accessed here.

The narrative introduction follows.  Much of the discussion is drawn from ideas I have further elaborated in an forthcoming book,  More information about the topics discussed here may be accessed here

Conference: Accountability and International Business Operations: Providing Justice for Corporate Violations of Human Rights, Labor and Environmental Standards

(Pix © Larry Catá Backer 2017)

Sponsored by the Utrecht Center for Accountability and and Liability Law (UCALL), the upcoming conference, Accountability and International Business Operations: Providing Justice for Corporate Violations of Human Rights, Labor and Environmental Standards, as its name suggests, brings together a great group of individuals to consider one of the most dynamic areas of law and policy today--the normative and methodological issues, in economics, politics and law, that touch on the ramifications of business responsibility for human rights, labor and environmental standards in their operations. I am pleased to pass along more information about this upcoming conference, including a conference concept statement and more detailed program.

Conference Fees: Regular: 150 euro*; PhD Candidate: 75 euro; Student: 35 euro. * Under exceptional circumstances, we can grant a partial waiver for the conference fee to NGO’s registrations. In order to apply for this waiver, a motivated request should be send to

Organization: The conference is organized by a team of researchers from the Utrecht Centre for Accountability and Liability Law:
Prof. Ivo Giesen (private law)
Dr. Liesbeth Enneking (private law)
Prof. François Kristen (criminal law)
Anne-Jetske Schaap, LLM (criminal law)
Prof. Cedric Ryngaert (international law)
Lucas Roorda, LLM (international law)

The Conference Concept Note and full Program follows:

Wednesday, May 17, 2017

Interview with Mehr News (Iran): On the Strategic Importance and Ramifications of China's One Belt One Road Initiative

(Old Silk Road; Source here)

I was recently interviewed by Payman Yazdani for Mehr News Agency (Iran). We discussed the strategic importance and ramifications of China's One Belt One Road (OBOR) Initiative, with an emphasis on its significance for Turkey and Iran.

The text of the interview, موفقیت چین در احیای جاده ابریشم چشمگیر است/نقش ایران و ترکیه
("China's dramatic success in reviving the Silk Road dramatic / the role of Iran and Turkey") (with English translation) follows below.

Friday, May 12, 2017

Text of My Remarks, "Transnational Legal Orders and Global Regulatory Networks": to be delivered as part of the 2017 Global Law Week and the International Francqui Symposium on Global and Transnational Law Today

I have recently posted (here) about the third edition of the Brussels Global Law Week to be held from 15 to 19 of May 2017 and hosted by the Perelman Centre for Legal Philosophy (Université libre de Bruxelles Faculty of Law)

Posted below is the text of my remarks, Transnational Legal Orders and Global Regulatory Networks, to be delivered as part of the 2017 Global Law Week and the International Francqui Symposium on Global and Transnational Law Today.

Just Published: "Shaping a Global Law for Business Enterprises: Framing Principles and the Promise of a Comprehensive Treaty on Business and Human Rights"

I am happy to announce the publication of an article, "Shaping a Global Law for Business Enterprises: Framing Principles and the Promise of a Comprehensive Treaty on Business and Human Rights," that appears in the North Carolina Journal of International Law 42(2): 417-504 (2016).

The introduction follows; comments and engagement always welcome. This is the fourth in a series of recently published work that explores the legal ecology of globalization, the first within the private sector regulatory systems, the second in Marxist Leninist systems, the third within emerging constituting structures of transnational ordering beyond the state, and this fourth considering the approaches to embedding international norm systems within the great legalization projects of international law. 

Thursday, May 11, 2017

Announcing Conference: Brussels Global Law Week

From 15 to 19 of May 2017, the Perelman Centre will run the third edition of the Brussels Global Law Week. The conference concept note states
Reuniting theory and practice, the Brussels Global Law Week is an annual forum open to academics, researchers, students, NGOs, legal practitioners, regulators and decision-makers to discuss issues of law & globalization. Each year, special attention will be drawn to both research in global and transnational legal theory and practical issues in specific sectors. The short 2017 programme is attached hereby.
My thanks to the excellent job of the organizing committee: 
Prof. Benoît Frydman, Université libre de Bruxelles
Prof. Gregory Lewkowicz, Université libre de Bruxelles
Prof. Hugues Pirotte, Université libre de Bruxelles
Prof. David Restrepo Amariles, HEC Paris & Université libre de Bruxelles
Prof. Arnaud Van Waeyenberge, HEC Paris & Université libre de Bruxelles
Tilen Cuk, Université libre de Bruxelles
Joséphine Woronoff, Université libre de Bruxelles

For those interested in attending Registration is mandatory to attend the Brussels Global Law Week. Places are limited. Please register on EventBrite here. Attendance is free of charge for speakers and for faculty, staff & students of the Université libre de Bruxelles and KULeuven.  Registration fee is € 250 for the whole week. The daily rate is € 75. Please contact philodroit(at) The fee is not refundable. Students and foreign participants may apply for a reduced fee by email. The registration fee includes admission to the Brussels Global Law Week, admission to the cocktail, lunches, coffee, tea and water during the breaks. Please see the brochure attached for further practical information concerning your stay, accommodation and transport.

Most of the interventions will take place at Solbosch Campus ULB, av. Franklin Roosevelt 50, 1050 Bruxelles.

The 2017 Programme follows

Wednesday, May 10, 2017

New Draft Paper Posted: "Sovereign Wealth Funds, Capacity Building, Development, and Governance"

(Pix © Larry Catá Backer 2017)

I am pleased to let those interested know that I have posted a draft of my essay, "Sovereign Wealth Funds, Capacity Building, Development, and Governance."

The paper considers the way that SWFs may be transformed by and are transforming the framework of global finance and production relationships. SWFs have already started moving well beyond their idealized form, established within the parameters of the Santiago Principles. SWFs now advance the political and economic projects of states, they serve to strengthen governance, they are the focal point for the normalization of global human rights in economic activities projects, and they also serve to advance the development goals of states. The old issues of the commercial character of these mechanisms, and of their effects of the financial markets and ownership structures of rich home states remains important, but may no longer be the central element pushing the development of SWFs. Law and regulatory structures lag far behind the realities that are taking shape on the ground. The public-private divide, the constraining structures of national principles of taxation and sovereign immunity are now ripe for contestation and change. But on what basis?

The final version is expected to be published with the Wake Forest Law Review whose staff I look forward to working with. In the meantime, comments, engagement and the like deeply appreciated. The abstract and introduction follow.  

No.200 许章润 |先天不足,后天失调 (No. 200 Xu Zhang Run "congenitally deficient, acquired disorders")

This is another in the series of essays that were presented at the “来华外国人与近代中国法” 国际学术研讨会 "Foreigners and Modern Chinese Law" International Symposium Conference and then continued thereafter in the same spirit.

No.200 许章润 |先天不足,后天失调 (No. 200 Xu Zhang Run congenitally deficient, acquired disorders). This contribution is particularly interesting for its reflections by Xu Zhang Run.  Beautifully written.

The essay was posted to 叁會學坊, the San Hui Fang Workshops microblog and it follows below 中国语文 only.

Tuesday, May 09, 2017

The Battle Between Regulatory and Managerial Approaches Within the Norwegian Sovereign Wealth Fund--The Case of Corruption

The Norwegian Pension Fund Global made public a set of recommendations on May 5.  Most are unremarkable in and of themselves.  What draws attention is what appears to be a difference in appears between the Ethics Council, on the one hand, and Norges Bank, on the other., on the more sensitive issue of corruption (with respect to which I have written critically here, here, and here
On 5 May 2017, the Council on Ethics issued four recommendations relating to gross corruption and one recommendation relating to serious environmental damage.
Norges Bank decided to place under observation two companies that the Council had recommended be excluded due to their involvement in cases of corruption. Furthermore, Norges Bank decided to exercise shareholder rights with respect to two companies involved in corruption cases, where the Council had recommended observation. Norges Bank decided to abide by the Council’s recommendation to exclude a company on the grounds of its involvement in serious environmental damage. (HERE)
This post considers some consequences of that rift and provides links to the decisions.