Sunday, August 29, 2010

From Theory to Practice: Scientific Development (科学发展观) As Applied Within China

Recently I have been exploring the development of the fundamental principle of scientific development (科学发展观) as a constitutional and normative concept within Chinese law and political organization.  The initial consideration focused on the nature of the concept.  "The concept of Scientific Development (科学发展观) as both constitutional doctrine and leadership principle of Chinese Communist Party doctrine continues to play a foundational role in the emergence of Chinese Party-State meta constitutionalism.  The concept is particularly interesting both as an articulation of "higher law" that informs both the approach to the leadership (领导) role of the Chinese Communist Party under the Constitution and the substantive principles under which the state apparatus (the National People's Congress system) operates."  Larry Catá Backer,  Studying the "Higher Law" of Scientific Development (科学发展观) in Chinese State-Party Constitutionalism, Law at the End of the Day, July 5, 2010.

For this brief essay we turn to a few bits of summary evidence of the use of the concept in practice. My research assistant, Ma Lian recently provides a review of some applications of the concept within Chinese intellectual and Party circles--at least to the extent that such development is available publicly. 

Applications of Scientific Development
Ma Lian

Largely when a new ideology was promoted in a high-profile way nationwide in China, it is expected to see a series of actions oriented toward the new ideology following its adoption. The case of the Scientific Development is no exception. Recalling what this new “higher law” advocates, one can find consistent development in the application of the Scientific Development in various aspects of political and economic life. From state legislation to party building and regulation of economic behaviors, Scientific Development has been applied in a top-down approach.

“People first”, as a core principle of Scientific Development, has been reflected in some newly adopted laws that are designed to protect individual’s human rights in China. The first tort law in China and an amendment to the electoral law are examples of acts in applying “people first.” The Tort Law – a key step toward a civil law code

For the first time China now has a tort law that is primarily protecting people’s private rights. Effective on July 1, 2010, The Tort Liability Law of the People’s Republic of China, along with the Property Law, effective in 2007, is believed to be fundamental to the goal of having a civil law code in China.1

Wang Liming, who is one of the drafters of the tort law, believed that the law was a very important step toward having a civil law code. He also said the law was a reflection of the current world trend – people first. People’s rights are superior to property rights.2

The tort law regulates liabilities in environmental pollution, medical malpractice, product defect, and other areas where people’s rights might be harmed. Most importantly, the law is a reflection of the principle of equal rights among people despite China’s special urban-rural disparity. In the past there were cases where victims of traffic accidents and mining accidents were compensated differently because of their urban or rural identity. Urban victims got more compensation than rural victims. The difference of compensation has caused an issue of “equal life but unequal values.” The newly effective tort law at least superficially put an end to the unfairness between rural and urban citizens.3

The tort law also regulates infringement against one’s reputation and privacy. The law is very important in awakening social awareness in protecting every individual’s rights. The adoption of the tort law is also a response to the increasing social conflicts and various social issues arising on a daily basis. In a larger context, the law is an application of what the Scientific Development calls for – put people’s interests and rights first. Nevertheless, the fundamental goal of Scientific Development is supposed to benefit people. Compared with previous ideologies and principles that have been guiding China’s reform in the past 30 years, the Scientific Development is aimed at making adjustment and rectification over what has been proved inadequate in social and human development in the previous 30 years.

Amendment to Electoral Law – addressing China’s dichotomy politically.

At a session of the National People’s Congress in March 2010, an amendment to the electoral law was adopted, which indicates an equal electoral right for both rural and urban citizens in China. The amendment allows a 1:1 ratio in the number of population that each people’s representative represents in rural and urban areas. Previously, the ratio was 8:1 and then 4:1. The newly adopted change to the ratio was according to the Report of the Party’s Congress in 2007 about giving equal electoral rights to all citizens regardless of their rural or urban identities.4

The amendment was made following three principles: “One, guarantee the equal right of all citizens to vote. Electing deputies based on the same population ratio in urban and rural areas reflects equality among people. Two, guarantee the equal right of all localities to participate in the organs of state power. Every administrative area, regardless of the size of its population, should have the same base number of deputies and be able to elect a fixed number of deputies to reflect equality among regions. Three, guarantee an appropriate number of deputies for every ethnic group. Ethnic groups with the smallest populations must also have one deputy in order to reflect equality among ethnic groups.”5

It is noteworthy that China is making progress in respecting and protecting people’s basic rights and starting to address the urban-rural disparity. The amendment to the electoral law at least ensures Chinese rural citizens to have equal electoral rights to that of their urban counterparts.

Regarding actions to implement “people first”, China has also issued a National Human Rights Action Plan (2009-2010) in 2009.6 This is the first plan of its kind since the birth of the People’s Republic. One blogger pointed out that the plan was a positive thing in itself because human rights had been put in quotation marks in various official documents and publications before and the official media depicted human rights as something against China’s political stability.7 The blogger was reasonable in assessing the pace of China’s human rights development, calling for more speedy action because human rights are universally accepted values that should be respected and protected regardless what country it is.

The publication of such a plan indicates that discussions about human rights have become open and acceptable in China.8 Scholars of human rights were also very excited about the development of human rights in China. Li Buyun, director of human rights center in Guangzhou University, said that the Scientific Development which advocates people first will lead the country to respect and protect human rights. He also said that the rights listed in the Report of the 17th Party Congress in 2007, i.e. the right to be informed, the right to express ideas, and the right to participate decision making, etc, were more specified and beyond the rights listed in the State Constitution. Xu Xianming, president of Shandong University, believed that the Report of the 17th Party Congress reestablished China’s human rights framework, listing a broad range of specific human rights covering all aspects of people’s life.9 The two scholars of human rights were confident that the pace of human rights development will be faster in the years to come.

New Rule for Foreign Investment: good or bad news?

The State Council earlier this year issued a View about utilizing foreign investment.10 The View calls for raising the quality of using foreign investment, indicating that the Chinese government is shifting foreign investment toward high-end manufacturing, service, new energy and energy saving industries from traditionally high-pollution and high energy-consumption industries. In addition, the view is directing foreign capital toward China’s under developed Western area.

The View, which listed 20 rules about using foreign investment, implies two things, according to an interpretation by a lawyer.11 One, foreign investment gained national treatment status. From now on, foreign investment will be given national treatment status, the same as what other forms of investment enjoy. The state will not give special treatment to or have restrictions on foreign investment. This implies that China’s opening to the outside has deepened. Two, China has improved its ability to use foreign investment. In a sense, China has become more confident in using foreign capital to its own benefit. Foreign capital, along with other capital, shall be used to serve China’s economic development, including the near term goal of industrial upgrading, which is a clear task set by the Scientific Development – developing in a new way, i.e. innovation, high tech, low pollution, low resource consumption.

Another article believed that the new rule about using foreign investment sent out a signal that China now values more about the quality of foreign investment, not quantity.12 It pointed out that foreign investment has been focusing on manufacturing sector in China over the past 30 years, which has caused high pollution and high resource consumption. Now it’s time to change the situation. The new rule is restricting investment on high-pollution industries but encouraging investment in high-end and resource saving industries. These are all conforming to the principle of Scientific Development.

Reporting Officials’ Information pertaining to …

As a widely called for measure against corruption, the latest version of a property reporting rule was unveiled recently. The new rule requires officials of mid level and above to report their personal information with regards to income, spouse and non-adult children’s information, including their marriage status, residence, income and properties. 13

Regarding this new rule, critical opinions are overwhelming. Bloggers have voiced their strong doubt and questions about its real effect. Without publicizing the report, it is hardly an effective way to curb corruption among officials.14Some say the new rule is applied to officials of a certain level and above, which is not exhaustive. The very basic level, the lowest level officials are not included, but those officials are said to be the most corruptive.15 Others say the reporting rule is not compatible with Chinese culture, in addition to some technical obstacles. 16 Chinese officials traditionally assumed a role of taking care of citizens as parents are taking care of their children. In this type of society, how could “children” demand their “parents” make their income information public? Technically, the income of officials is not clearly defined. Most officials have an official salary, but they also have illegal incomes such as bribery, commissions, etc. The income that comes from what is called a gray area, is not easy to monitor.

A blogger pointed out that the new rule has three defects.17First, it is a rule with no outside checks. It is not a law, but a rule set by the Party itself. This indicates that there is still no consensus on setting up a law about officials reporting properties. Second, most likely, officials will only report their salaries. Other types of income that are called gray and black income will not be reported. Even though this is a very incomplete report, it is still not going to be publicized, which makes it hardly effective. Third, there is no effective and stern punishment. The rule did not break any new ground in term of punishment for those who violate the rule.

Despite numerous critical voices, Ren Jianming, a scholar of anti-corruption, believed that the new rule indicates that the focus of anti-corruption has been transitioning from combating to preventing.18 The new property reporting rule requires that official’s appointment decision should be based on his property reporting. This implies that property reporting will become part of the requirement in selecting and promoting officials. Ren said this new rule shows that China’s official appointment mechanism will become “more scientific.”

Group Decision Making in SOEs

On the heel of the new official property reporting rule, the Party’s Central Office joined the State Council’s Office in issuing a View about decision making in SOEs in mid of July. This View requires that any important decisions, important personnel appointment and replacement, important projects and operation of huge amount of capital (san zhong yi da) must be made through a group of leaders, in a way to avoid power abuse and corruption in this process.19 However, san zhong yi da is not a newly coined term. It first was reported in 1996 at a CCDI meeting aimed at restricting power abuse among top leaders in State-owned enterprises.20 The term was reiterated this time and the fact that it was issued by the two offices meant that the implementation of san zhong yi da has not been very well as the country keeps witnessing huge corruptive cases among SOEs in recent years. Meanwhile, the reissuance of san zhong yi da meant that it will become an institution for preventing and fighting against corruption.21

Scientific Development Corporations: zero

A commentator criticized sharply following the oil leak accident in Dalian that there was no single corporation in China that had Scientific Development.22 Qiu Feng made the comment about the irresponsibility of corporations in terms of protecting environment. Qiu said the key to implementing Scientific Development lies in the fundamental change of the current institution. In his view, two things must be done. First, cut the intimate relations between corporations and governments. Second, government should give up GDPism and take social justice and reducing income gap as its top priority.

A media outlet made a special report about a series of pollution issues following the Dalian oil leak accident, questioning that Scientific Development remains to be a slogan by far as it has been largely ignored by corporations.

When a country like China is making an overall transition from the past 30 years of economictake-off to modernization and middle-income country in the world in the next few decades, Scientific Development seems to have pointed out the direction and set up a goal. However, given the size and gravity of this country, it promises to be a tough job.


1Cheng Yifeng, “An interview with Wang Liming”,

2 Ibid.

3 Tan Hao, et al, “Tort Liability Law fills blanks of rights," Xinhua, 12/29/2009.

4 Zhou Tingyu, et al, “Amendment to Election Law to address urban-­‐rural disparity,” 03/08/2010, Xinhua

5Wang Zhaoguo, “Explanation on drafting amendment to electoral law,”

6 Official Text of the National Human Rights Action Plan, 04/13/2009.

7 人权、行动、计划之感想、联想和遐想

8 Bach, Bill, “Concept and history of national human rights plan PPT”.

9 Tang Bingtao, “Interpreting National Human Rights Action Plan (2009-2010)”

10“View about better utilization of foreign investment” State Council Document No. 9 2010

11 Li Shoushuang, “Interpreting China’s new rule of using foreign investment,"  04/20/2010,
FT Chinese.

12 Qin Fu, "Understanding the new rule about using foreign investment from the perspective of scientific development,"Wenming,

13 “Regulation about officials reporting personal matters”, Xinhua, 07/11/2010

14 “Unpublicized report means no report” blog article by Gao shan hou tu, 07/12/2010

15 Du Zi, “How far is the '23 articles' to property publicity?

16Zhang Ming, “Dilemma between the black and the white."

17 “A tough job” blog on hexun.

18 Xing Shiwei, Expert says anti-­‐corruption transitioning from fighting to prevention, 07/12/2010, Xinjing bao.

19 “View about implementing decision making mechanism in State Owned Enterprises," Xinhua 07/15/2010

20 Gao Fusheng, “Implementation of san zhong yi da needs a set of measures” 07/19/2010.

21 Gao Fusheng, supra.

22Li Yang, “Fenghuang’s exclusive dialogue with Qiu Feng: No single Chinese corporation that has Scientific Development,” 07/18/2010

This review presents an interesting, and necessarily incomplete picture. It suggests 科学发展观 as protean and under developed, There is a greaty danger of having scientific development become all things ot all people--a cudgel that may be used freely by people but representing nothing more than an instrument for personal or political advantage.  Yet to the extent it can serve as a framework for normative discussion, scientific development might be quite useful.  In this sense, its best use may be more as a means of preventing excess than of directing people to a very specifically visible set of objectives or suggesting a distinct set of normative methods.  Perhaps its most important use, though, may be as a framework through which serious discussion of significant political issues facing the Chinese state may be approached without suggesting disloyalty.  And, indeed, one of the great benefits of the move toward a well developed set of higher law principles--of a maturing set of Party principles--is that through their careful invocation, political discussion may be possible in China.  That this is a political discussion necessarily and firmly limited by the presumptions of these principles should come as no surprise given the founding presumptions of the Chinese state.  Yet, that it does permit an important space for discussion, that both defines the borders and shape the character of that discussion, suggests a dynamism to the evolution of Chinese governance that is usually absent from Western discussion of the Chinese political system.

Friday, August 27, 2010

Italo Calvino's City of Clarice: On the Mummification of Law, Peoples, Cultures and Time

Almost a generation ago Italo Calvino wrote  Invisible Cities (William Weaver, trans., New York: Mariner Books; 1978, First Harvest/HBJ Printing edition (May 3, 1978) ISBN-13: 978-0156453806).  It has been described as a "strange, fantastic book, Invisible Cities describes dialogues between Marco Polo, the Venetian traveler, and Kublai Khan, the oriental emperor. It has no plot as such -- no beginning, no development of characters (no characters, for that matter, except for the two mentioned above) -- but it does have a sad, bittersweet ending."  Tal Cohen, Invisible Cities / Italo Calvino, Tal Cohen's Bookshelf, March 18, 1999.  The book is framed as a conversation between Kublai Khan and Marco Polo in which Polo describes a series of fantastic cities he has purportedly visited, and about which the Khan and Polo converse.  Each description of a place visited is meant as a gateway for reflection, and the aggregate of fantastic cities described meant to conjure the bits and pieces of communal reality that describes the world.    

Invisible Cities has a particular utility for those who like to think about law (especially in its governance aspects).  The descriptions suggest the difficulties of the descriptive matrix within which  the positivist mania of law has been used to direct this or that form of human behavior.  Not that text itself is difficult to use to construct appropriate representation of desires.  And commands are the simplest desires to reduce to the imperative form (though obedience is another matter).   Rather it is the framework of assumption, the structural edifices that make up the forms of the cities of "law" that remain ephemeral.  Depending on the phantasmagorical city one constructs, on can fit one's command structure within it in a way that appears cohesive and reasonable from within it, but which  appears as insubstantial outside. But even internal cohesion may be difficult.

And thus the city of "Clarice" (Invisible Cities, supra, pp. 106-108).
Clarice, the glorious city, has a tormented history.  Several times it decayed, then burgeoned again always keeping the first Clarice as an unparalleled model of every splendor, compared to which the city's present state can only cause more sighs at every fading of the stars. 

In its centuries of decadence, emptied by plagues, its height reduced by collapsing beams and cornices and by shifts of the terrain, rusted and stopped up through neglect or the lack of maintenance men, the city slowly became populated again as the survivors emerged from the basements and lairs, in hordes., swarming like rats, driven by their fury to rummage and gnaw, and yet also to collect and patch, like nesting birds.  They grabbed everything that could be taken from where it was and put it in another place to serve a different use:  brocade curtains ended up as sheets; in marble funerary urns they planted basil; wrought-iron gates torn from the harem windows were used for roasting cat-meat on fires of inlaid wood.  Put together with odd bits of the useless Clarice, a survivors' Clarice was taking shape, all huts and hovels, festering sewers, rabbit cages.  And yet, almost nothing was lost of Clarice's former splendor; it was all there, merely arranged in a different order, no less appropriate to their inhabitants' need than it had been before.

The days of poverty were followed by more joyous times:  a sumptuous butterfly-Clarice emerged from the beggared chrysalis-Clarice.  The new abundance made the city overflow with new materials, buildings, objects; new people flocked form outside; nothing, no one had any connection with the former Clarice, or Clarices.  And the more the new city settled triumphantly into the place and name of the first Clarice, the more it realized it was moving away from it, destroying it no less rapidly than the rats and the mold.  Despite its pride in its new wealth, the city, at least, felt itself incongruous, alien, a usurper.
And then the shards of the original splendor that had been saved by adapting them to more obscure needs, were again shifted.  They were now preserved under glass bells, locked in display cases, set on velvet cushions, and not because they might still be used for anything, but because people wanted to reconstruct through them a city of which no one knew anything now.

More decadences, more burgeonings have followed one another in Clarice.  Populations and customs have changes several times; the name, the site, and the objects hardest to break remain.  Each new Clarice, compact as a living body with its smells and its breath, shows off, like a gem, what remains  of the ancient Clarices, fragmentary and dead.  There is no knowing when the Corinthian capitals stood on the top of their columns:  only one of them is remembered, since for many years, in a chicken run, it supported a basket where the hens laid their eggs, and from there it was moved to the Museum of the Capitals, in line with other specimens of the collection.  The order of the eras' succession have been lost; that a first Clarice existed is a widespread belief, but there are no proofs to support it.  The capitals could have been in the chicken runs before they were in the temples, the marble urns could have been planted with basil before they were filled with dead bones.  Only this is known for sure: a given number of objects is shifted within a given space, at times submerged by a quantity of new objects, at times worn out and not replaced; the rule is to shuffle them each time, then try to assemble them.  Perhaps Clarice has always been only a confusion of chipped gimcracks, ill assorted, obsolete.
In thinking about the physicality of the representation of Clarice, one can see in it a description of every surviving old European city from Barcelona to Rome.  Indeed, some have made a lucrative business of the excavation of the past with a simultaneous overlay of modern interpretation and order.  There are constant reminders of new Clarices even in the smallest reporting from the most remote corners of the settled world.  Consider a recent entry from the popular "News of the Weird" series with wide circulation in American newspapers.  "One of the more famous cultural landmarks in Britain's South Tyneside is an 1890 toilet, 'Westoe Netty,' commemorated in a 1972 painting and which remained on display at the Beamish Museum.  In March, it was relocated within the building because, as New of the Weird has reported about other museum display toilets, a visitor could not resist using it.  The toilet will be moved to a nonpublic part of the building and be hooked up to public plumbing." News of the Weird, August 27, 2010. As Calvino suggested--it becomes impossible to determine the order of succession--toilet-art-toilet-?, and therefore its consequences for "knowing what it is and what it can be used for.

Yet Clarice also describes a golden city of law, abandoned, buried, reconstituted, rearranged, and suffering an endless nostalgia for a past to which it has no connection but which is essential for  the legitimacy of the present..  The first Clarice of Roman law (first only because its progeny cannot extract though they retain a hazy memory) of those legal Clarices before the Imperial Roman version of the age of Justinian.  But it also describes the American movement from a common-law-state to a regulatory law-state, with a short if intense cycle as a statutory law-state.  Nostalgic over the bits and pieces of the "first" American Clarice, we even continue to teach its relevance to law students within the typical first year curriculum, even as we realize the extent to which the American law-state has displaced it.  What survives is shifted, reused or moved to museums where they might be admired and mis-identified to the greater glory of the current version of the law-state.  Indeed, to some great extent, American law schools serve as the sort museum, preserving under its own metaphorical glass bells the bits and pieces of what survives,  not because these bits are useful but to appear to connect to legitimate the present by its connection to the past.  Yet in the act of preservation, the modern keepers of these artifacts acknowledge their disconnect and worse, the impossibility of knowing much about any of these preserved things.  The same over-layering haunts the legal systems of all other major systems.   Its acolytes--lawyers, judges, priests, imams, legislators, regulators--devote as much time to the preservation of their cities as they do to its elaboration  effectuated by the deployment of ancient and modern governance objects to purposes legitimated by their connection somehow to the old--to the great ur-textual Clarice. 

This is not meant as a call to abandon Clarice.  It is a reminder that mummification--of cities, law, people, cultures, and the like--are a fool's errand.  The connection to a past is both necessary and necessarily metaphorical.  The harder society seeks to preserve, to reduce the  destructive effects of the present to preserve the past, the farther we move from past to future disconnected from that we seek most passionately to preserve.           

Tuesday, August 24, 2010

The American Bar Association is Considering Accrediting Foreign Law Schools: Globalization, Harmonization, Communication, Satisfaction of Market Needs, Advancing Legal Knowledge, or Neo-Colonial Project?

Elites for some time have amused themselves by disparaging both the coherence and relevance of American law. Yet American law and legal education continues its march across the globe, triumphantly displacing indigenous forms of approaches to law and legal education in the most unlikely of places.     And now this triumphant march through the world has wended its way home.  Building on the heels of an earlier report, the 2009 Report of the Special Committee on International Issues (chaired by Justice Elizabeth Lacy), that highlighted the need for the appropriate assimilation of foreign lawyers into the American system, a special American Bar Association committee has suggested that the ABA accredit foreign law schools.  See  American Bar Association, Report of Special Committee on Foreign Law Schools Seeking Approval Under ABA Standards, July 19, 2010.
This Special Committee was appointed on June 10, 2010 and asked to report to the Council of the Section of Legal Education and Admissions to the Bar at its August 2010 meeting on the policy questions surrounding the question whether law schools located outside the United States or its territories, which have modeled their educational programs on the American model, should be allowed to seek accreditation under the governing Section Standards and Rules of Procedure for Approval of Law Schools. Id., at 1.
The Committee, composed of Mary Kay Kane (Chair), Elizabeth Lacy, Dennis Lynch, Randall Shepard, and David Tang, divided its Report into three parts.
The first discusses the policy implications and justifications for expanding the accreditation role of the ABA Section to encompass law schools located outside the United States or its territories. The second considers what special rules or concerns might need to be addressed should the Council determine to proceed to consider applications coming from such law schools. . . . Finally, the report concludes with a series of recommendations.  Id., at 1-2.
 The Committee made four recommendations.  First, the accreditation project should go forward.  Second, the actual accreditation standards should be reviewed and revised to avoid any barriers to this geographic expansion.  Third, a policy statement ought to be drafted to ensure the central place of American law, the English language, a faculty made up primarily of recipients of U.S. J.D.s, and an American pedagogy in these foreign accredited schools.  Lastly, the Committee recommended to trail run from a model school that might provide the acceptable template for this form of expansion.  Report, supra, at 8.

The Committee offered six justifications for this expansion and three and three creations against expansion.  Report, supra, at 3-7. The justifications included aiding state supreme courts in their bar admissions functions, controlling the route to and the acculturation required for bar admissions, avoiding the shortcut to bar preparation for foreigners offered through the lucrative markets for LL.M. degrees, deepening the influence of American law and American legal education as the gold standard for global legal education "to improve the training of lawyers globally and contribute to the modern economy and the international legal profession."  Id., at 4. In addition, the Committee advanced the notion that such programs of accreditation would aid in the process of global legal harmonization. "Expanding accreditation to schools outside U.S. borders that focus on U.S. law will allow these schools to be in a position potentially to develop cutting-edge curricula to address these trends and the Section thus will be in a position to be an active player in the dialogue about how to develop high quality legal training for the global economy." Id. Lastly, it would permit American law schools to become multinational operations by reducing barriers to the establishment of branch campuses abroad. 

The reasons cautioning against expansion included reducing barriers to entry of foreign lawyers into American legal markets, permitting foreign governments an indirect voice in accreditation through state controlled law schools, and failing in a rigorous enough acculturation process that might require visits to the United States itself.  Id., at 5.

The Report is both interesting and challenging.  From an economic perspective the thrust of the Report makes sense for thew United States.  It represents a recognition of the character of markets in legal education, and seeks to privilege the American participation by removing regulatory barriers to expansion of market share.   From a political perspective there is much to commend the Report from the perspective of American policy.  In an era when soft power is sometimes more effective than military intervention, dominating cultural markets and markets in legal ideology, methods and substantive law substantially leverages American power.  From an internal power dynamics perspective it also works to benefit the richest, most influential and powerful actors within legal academia.  Not every law school has the resources to open branches or establish the sort of ties that might lead to US accredited joint ventures with foreign law schools--and don't be surprised if many of these foreign ventures are not at least initially structured as joint ventures between U.S. law schools and foreign academic units.  The rules would tend to cement the privilege of the upper tier of American law school and deepen the divide between the haves and "have-nots" of a formally egalitarian but functionally class structured system of American legal education.  Lastly the emphasis on English also produces a strong soci-cultural effect by deepening the power of English as the global language.  Values are easier to transmit through a common language than in translation.  

Yet some of these powerful incentives to move forward with this enterprise from the American perspective might provide a caution to those on the receiving end of the transaction.  It is not too long a path from harmonization to subordination and from guidance to domination.  These efforts can be as intrusive in host states as the erection of military bases--and more effective because they are meant to be open and inviting rather than walled off and secured.  On the other hand, the process suggests partnership.  It is as likely that a great infusion of foreign voices into American programs will change the Americans as it will acculturate the foreigners.  American culture is particularly susceptible to foreign influence--but American tend to absorb foreign influences and naturalize them within its own culture rather than avoid them as threats, at least int he long run. Yet its effect on domestic markets for law and legal education within host states remains a topic that is sorely neglected in the Report-
The Council on Legal Education and Admissions to the Bar will consider the recommendations in December, and is seeking comment. Comments should be e-mailed by Oct. 15 to under the heading of "Foreign Law Schools." I would urge those interested, especially members of faculties from foreign (non-U.S. jurisdictions) to participate in the conversation this report has opened by responding to the ABA and broadening the discussion to those stakeholders not necessarily privy to the ABA's governance project. 

Sunday, August 22, 2010

Ruminations 31: The Human Capacity for Self-Debasement Through Theory

(Pix (c) Larry Catá Backer)

The only way for the individual to become centered is to reduce society to a managed anarchy which is itself contrary to the social position maximizing behavior of individuals.   The paradox of this age-- a social world in which individuals can't help themselves (theory) to manage their management (act anti-systemically) for upward  advancement within the very systems that theory can neither explain completely nor which can be deployed for fully effective control. More to the taste of this age of academics is the 'scientism' of B.F. Skinner, one that inverts the relationship of people to their surroundings and suggests the infinite malleability of the former by the later.

Friday, August 20, 2010

Course Syllabus for "Actors, Institutions, and Legal Frameworks in International Affairs"

I will be teaching a course this semester as part of the core curriculum of the Penn State School of International Affairs:

Actors, Institutions, and Legal Frameworks in International Affairs
This course introduces students to the various levels of international interaction and exchange (supranational, state-to-state, state-to-private, private-to-private); the sources and limitations of law and regulation at each level; and the variety of actors and institutions characteristic of each level. The course explores the roles, authority, and limitations of the institutions and actors at each level and the implications of these for domestic and transnational governance, development, human rights, commerce, migration, and civil society.   (INTAF 801, 3 credits)

The course presents an interesting opportunity to bridge the gap between law and international relations without losing the coherence of either  Still, this is easier said than done, since lawyers and non-lawyers speak with different vocabularies--in part in aid of precision, in part to solidify field boundaries within a clearly defined linguistic space and in part to erect barriers to entry by outsiders not committed to the preservation of the field.  Lawyers and non-lawyers also privilege different objectives, in part on the basis of the ideologies of their fields.  Lawyers tend to reify law, and presume a law-state connection that focuses on institutionalization of rule systems over  other events.  Others privilege those portions of human conduct that, segregated as a presumptively distinguishable set of conduct vectors, can be used to explain the world. This can range from politics, to economics, class, religion and the like.  Putting these world view systems, then, requires that the student unmask the ideologies of a variety of approaches then then consciously apply them from the perspective of a field-outsider.  This approach may not endear one to academics, but it tends to provide a more balances and critical perspective on the variations of what passes for a presumption-based truth.

That said, I am not sure it is possible to achieve inter-disciplinary coherence generally, much less in a course syllabus. Yet it is worth a try. So, without further hedging, I provide  the relevant  portions of my syllabus, with the hope that those of you so inclined can let me  know what you think.

Actors, Institutions, and Legal Frameworks in International Affairs
Course Syllabus

From the Course Catalog:
This course addresses the principal actors at various levels of interaction in international affairs: supra-national bodies, States, quasi-States, international organizations and institutions, non-governmental organizations (NGOs), transnational corporations, and individuals. Emphasis will be placed on the sources and the limitations imposed by various legal regimes (general and regional international law, national (or municipal) legal systems, internal administrative regulation (for international organizations), and attention given to the roles and authority of actors and limitations on those roles and authority in the domains of development, human rights, international transactions, migration, public health, and civil society generally.
What does this mean?

First, students will be introduced to the range of organizations that populate the landscape of international affairs. In line with the current global framework of hierarchies of political power, that means a focus on the state. The students will consider the state system—that is, the state as a political organization and as an actor among other states and non-state actors. They will be introduced to notions of differences between governors and governed and hierarchies of authority. They will also be introduced to the distinctions between international and domestic law systems, and non-law systems. Together these provide the framework within which international actors operate.

Second, students will learn about each of these entities. Students start with the state. All other international actors are then considered from the perspective of this touchstone entity—quasi-states (e.g. Somalia, Palestine, Kosovo); international organizations (e.g., United Nations); supra-national organizations (regional trade organization, ); transnational corporations (e.g. Nike) and non-economic corporate actors (e.g., Oxfam); and individuals. The focus of this exploration with respect to each of these actors will be similar: how are they constituted, who are their stakeholders, what is the extent of their authority (internal and external), to which other entities are they dependent, how to they operate.

Third, students will consider how each of these entities operates within the global context. They will consider the “rules of engagement” among these institutions. They will also explore the ways in which these institutions communicate with each other (notions of structural coupling), how or to what extent they retain autonomy with respect to internal and external activity), and how their interactions affect policy, culture, economics, and globalization.

Fourth, the context of these investigations will be grounded in the legal frameworks within which these institutions operate, or against which they might function. Students will be expected to acquire a rudimentary knowledge of the international law system, and its distinction from domestic law systems. Students will also explore the quasi-legal nature of governance systems—rules that have the functional effect of “law” but are not produced through the organs of state actors.


Many of the readings for the semester will be drawn from these texts. While they are available at the bookstore, you might consider buying them either used or elsewhere to save money.


José E. Alvarez, International Organizations as Law-Makers, Oxford University Press, 2006, ISBN 978-0-19-876563-9 (Paperback)

Networked Politics: Agency, Power, and Governance (Miles Kahler, ed.) Cornell University Press, 21009. ISBN 978-0-8014-7476-7 (Paperback).

Materials to be distributed electronically.


Dan Sarooshi, International Organizations and Their Exercise of Sovereign Powers, Oxford University Press 2005. ISBN 978-0-19-922577 (Paperback).

Jan Klabbers, An Introduction to International Institutional Law 2nd ed. Cambridge University Press 2009. ISBN 978-0-521-73616-9 (Paperback).


Generally speaking, the course will be conducted along the lines of a graduate level seminar, consisting of a mix of lectures and presentations led by teams of students. The course will only be as successful as the efforts student teams put into their presentations. Together we will seek to leverage the diversity of experiences and backgrounds among us to derive greater insights from the materials and their application to current issues. Each of you is a valuable resource in this effort. The fundamental goal is to better equip you to work effectively within an increasingly diverse system of institutions and governance organs that now play a significant role in policy, politics, religion, culture and economics.

Seating is assigned. To make seat selection somewhat less arbitrary, the seat you choose on the second day of class will be your assigned seat. I will circulate a seating chart on the second class day for you to fill in.

Class Notes and Recording of Class. Please feel free to get together with your classmates for studying and sharing notes. It is sometimes efficient. Take such notes as you desire. In addition, all of my classes are taped. You may review the tapes from your computers through ANGEL. No personal recording of class.


Student grades will be based on class participation and two take home examinations (both administered through the Penn State ANGEL system).

Participation: you are expected to have completed the readings indicated for each class and to actively participate in class discussions and exchanges. You are expected to be an active and contributing member of your team.

Exams: THE EXAMS ARE OPEN BOOK. You must work alone.

You will have 24 hours to complete the exam from the time you pick it up. Students will be given the option of choosing the time to take the exam.

In calculating the final grade I will ascribe the following weights:

Participation 20%
Mid Term 30%
Final Exam 50%

Academic honesty and integrity is expected under the rules of the DSL Honor Code, available


August 23: Course Introduction
--Course Information & Syllabus memo
--Alvarez, pp. 1-57

August 25: International Institutional Law as Transnational Law
-- Larry Catá Backer, Principles of Transnational Law: The Foundations of an Emerging Field, Law at the End of the Day, March 9, 2007, available
-- Philip C. Jessup, Transnational Law (New Haven: Yale University Press, 1956), pp. 1-16.
-- Peer Zumbasen, Transnational Law, CLPE Research Paper 09/2008 Vol. 04(2). Available
-- Craig Scott, “Transnational Law” as Proto-Concept: Three Conceptions, 10(7) German Law Journal 859 (2009). Available at
-- Reza Dibadj, Panglossian Transnationalism, 44 Stanford Journal of International Law 253 (2008). READ PP: 256-72 (PART II).
-- Anders Esmark, The Functional Differentiation of Governance: Public Governance Beyond Hierarchy, Market and Networks, Public Administration Vol. 87(2): 351-370 (2009). READ PP. 353–356

August 30: Strong States and their constitutions
--Larry Catá Backer, God(s) Over Constitutions: International and Religious Transnational Constitutionalism in the 21st Century. Mississippi Law Review, Vol. 27, 2008. Available at SSRN:
--Larry Catá Backer, Economic Globalization Ascendant: Four Perspectives on the Emerging Ideology of the State in the New Global Order. University of California, Berkeley La Raza Law Journal, Vol. 17, No. 1, 2006. Available at SSRN:

September 1: Weak States
-- Peter T. Leeson and Caludia R. Williamson, Anarchy and Development: An Application of the Theory of Second Best, Law & Development Review 2009.
-- Ken Menkhaus, Governance Without Government in Somalia: Spoilers, State Building and the Politics of Coping, International Security 31(3): 74- 106 (2007). READ PP: 83-93
-- Larry Catá Backer, Of Somali Pirates, Global Corporations and the State: Governance Without Government, Government without a State and Military Power, Law at the End of the Day, June 28, 2009
-- Larry Catá Backer, Regulating Global Capital Markets: Somali Pirate Capital Markets, the South Sea Bubble and the Limits of Law, Law at the End of the Day, Jan. 1, 2010.
( )
-- Christopher Jasperro, Somalia’s Piracy Offers Lessons in Global Governance, Yale Global Online, April 6, 2009.
--Team presentations:
Team A—Kosovo
Team B—Palestine
Team C—Congo
Team D—Afghanistan
Team E—Lebanon
Team F—Haiti
Team G—Mexico

September 6: NO CLASS

September 8 International Institutional Law: Autonomy of Actors
--Alvarez, Chapter 2.

September 13: International Institutional Law: IO Law Making
--Alvarez, chapter 3.

September 15: International Institutional Law—Specific Examples
--Alvarez, chapter 4
--Team presentations:
Team A—IAEA Standards, FAO
Team B—Codex Alimentarius, ICAO
Team C—IO Advisory Opinions
Team D—ILO Recommendations
Team F—World Bank Guidelines
Team G—IMF Conditionality

September 20: Dispute Settlement—Non judicial Actors
--Alvarez, Chapter 7.

September 22: Dispute Settlement—Judicial Bodies
--Alvarez, Chapter 8.

September 27: The International Court of Justice
--The ICJ at a Glance
--ICJ General FAQs
--ICJ Advisory Opinion FAQs
--Medellin v. Texas,
--Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, ICJ, July 22, 2010, Gen, List No. 141 (Advisory Opinion). Available

Optional Reading
-- Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory Advisory Opinion 2004 July 9 General List No. 131 (July 9, 2004) (available The opinion is very long. Please read Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Request for advisory opinion) Summary of the Advisory Opinion of 9 July 2004 ( and then focus on
1. Jurisdiction: Paragraphs 14-15, 24-25, 36, 38, 40.
2. Consent: Paragraphs 46-47, 49.
3. Legal Basis: Paragraphs 86-89, 102-111 (especially 89 on jus cogens)
4. Application of Law: Paragraph 115 (de facto annexation) versus Paragraph116 (proportionate anti-terrorism measures).
5. Legal Consequences: Paragraphs 148-158.
6. Remedies: Paragraph 159-160.

September 29: The International Criminal Court System
-- ICC Overview.
-- ICC About the Court.
-- ICC – Structure of the Court.
-- ICC Frequently Asked Questions.
-- ICC Activity Report
-- Background Materials (for reference only)
     a. Rome Statute
      b. Elements of Crimes
      c. Rules of Procedure and Evidence
      d. Regulations of the Court
      e. Agreement on Privileges and Immunities
      f. Regulations of Prosecutor
     g. Regulations of the Court
-- Bashir Case: Read by Groups A-D
     a. Summary of Situation in Darfur
      b. Arrest Warrant
      c. Summary of Arrest Charges
     d. Al Bashir case: The Appeals Chamber directs Pre-Trial Chamber I to decide anew on the genocide charge
-- Dyllo Case: Read by Groups E-G
      a. Dyllo Arrest Warrant
      b. Dyllo First Appearance
      c. Dyllo Jurisdiciton
      d. Dyllo Decision Conforming Charges

October 4: International Human Rights Institutions: European System
-- Thomas Buergenthal, The Evolving International Human Rights System, 100 Am. J. Int'l L. 783 (2006). READ INTRODUCTION AND PARTS I & IV.
-- The ECHR System:
     A. ECHR History Information
      B  ECHR Brochure
      C. ECHR Questions & Answers
      D. ECHR FAQs
      E. ECHR Facts & Figures
     G. ECHR Treaty
      I. ECHR Rules of Court
     J. ECHR Addendum to Rules
      K. ECHR General Measures
-- Frank Hoffmeister, Germany: The Status of European Convention on Human Rights in Domestic Law, 4(4) International Journal of Constitutional Law 722 (2006).

October 6 : VISITOR—Class Exercise Human Rights: Analysis and Evaluation of African and OAS Systems in comparison to European System. TEAMS A-C focusing on African system, and Teams D-G focusing on OAS systems. Be prepared to discuss differences in organization, jurisprudence, effectiveness and involvement of other state and non- state actors.

October 11 VISITOR—Class Exercise: ICC Action Against Former President Bush
--Each Team to divide into two groups, one seeking to indict and the other resisting indictment.

October 13 NO CLASS

October 18: States as Private Actors—Sovereign Wealth Funds and SOEs
--Larry Catá Backer, Sovereign Investing in Times of Crisis: Global Regulation of Sovereign Wealth Funds, State Owned Enterprises and the Chinese Experience. Transnational Law & Contemporary Problems, Vol. 19, No. 1, 2009; Penn State Legal Studies Research Paper No. 12-2009. Available at SSRN:
--International Working Group of Sovereign AWealth Funds, Generally Accepted Principles and Practices (GAPP)—Santiago Principles. Available for download at
--OECD Guidelines for SOEs. Available,3343,en_2649_34847_34046561_1_1_1_1,00.html.

October 20: Class Exercise—Applying the Norwegian Ethics Rules
--Larry Catá Backer, Sovereign Wealth Funds as Regulatory Chameleons: The Norwegian Sovereign Wealth Funds and Public Global Governance Through Private Global Investment (May 4, 2009). Georgetown Journal of International Law, Vol. 41, No. 2, 2009. Available at SSRN:

October 25: International Organizations as Financial Institutions: IMF & World Bank
-- IMF History
-- IMF Overview
-- IMF Governance and Organization
-- IMF Surveillance
-- IMF Lending and Conditionality
      A. IMF Conditionality Statement (SKIM)
      B  IMF Conditionality Statement Addendum (SKIM)
-- IMF Technical Assistance
-- Current Challenges
-- IMF Articles of Agreement (BACKGROUND; SKIM)
--World Bank Overview and History

October 27: Class Exercise: Negotiating a National Agreement with IMF.
-- Pakistan: Request for Stand-By Arrangement—Staff Report; Staff Supplement; Press Release on the Executive Board Discussion; and Statement by the Executive Director for Pakistan (READ PAGES 1-19).
-- International Bank For Reconstruction And Development And The International Development Association And The International Finance Corporation Country Assistance Strategy For The Islamic Republic Of Pakistan For The Period Fy06-09 (April 4,2006) (READ 12-32).

November 1: Regional Trade Organizations
-- Jo-Ann Crawford and Roberto Fiorentino, The Changing Landscape of Regional Trade Agreement, World Trade Organization Discussion Paper No. 8 (2005). READ PARTS I& II pp. 1-16.
--Daniel Lederman, William F. Maloney & Luis Servén, Lessons From NAFTA for Latin America and the Caribbean, Stanford University Press, 2005. PP. 1-27.
-- Welber Barral, Dispute Settlement and Legal Harmonization in MERCOSUR, in Harmonizing Law in an Era of Globalization: Convergence, Divergence and Resistance (Larry Catá Backer, ed., Durham, NC: Carolina Academic Press, 2007).
--Larry Catá Backer and Augusto Molina, Cuba and the Construction of Alternative Global Trade Systems: ALBA and Free Trade in the Americas (May 20, 2009). University of Pennsylvania Journal of International Economic Law, Vol. 31, No. 3, 2010. Available at SSRN:

November 3: World Trade Organization
-- Understanding the WTO
-- WTO Governance
-- WTO Dispute Resolution
-- WTO Dispute Resolution Chart
-- WTO Viet Nam Accession documentation

November 8: NGOs
--Peter R. Baehr, Non-Governmental Human Rights Organizations in International Relations (Palgrave 2009) ISBN 978-0-230-20134-7 (hrdbk) pp. 1- 48.
--Networked Politics, pp. 127-170.
-- We the peoples: civil society, the United Nations and global governance Report of the Panel of Eminent Persons on United Nations–Civil Society Relations (2004) (Cardozo Report) READ 7-13; 23-31.

November 10: Criminal and Clandestine Actors—From Mafia to al Qaeda
Networked Politics, pp. 79-124

November 15: Multinational Corporations as IOs
-- Larry Catá Backer, Multinational Corporations as Objects and Sources of Transnational Law, 14 ILSA Journal of International and Comparative Law499 (2008). 

November 17: VISITOR—Class Exercise Designing a supply chain regulatory system for a Multinational Corporation.



November 29: Multinational Corporations as Objects of IO Regulation: OECD and UN
--Larry Catá Backer, Rights and Accountability in Development (Raid) V Das Air and Global Witness V Afrimex: Small Steps Toward an Autonomous Transnational Legal System for the Regulation of Multinational Corporations (June 30, 2009). Melbourne Journal of International Law, Vol. 10, 2009. Available at SSRN:
--Larry Catá Backer, On the Evolution of the United Nations’ 'Protect-Respect- Remedy' Project: The State, the Corporation and Human Rights in a Global Governance Context (June 3, 2010). Santa Clara Journal of International Law, Vol. 9, No.1, 2010. Available at SSRN:

December 1: Class Exercise—Using the NCP Complaint process against a Multinational enterprise

December 6: Introduction to Polycentricity in Governance
--Larry Catá Backer, Private Actors and Public Governance Beyond the State: The Multinational Corporation, the Financial Stability Board and the Global Governance Order,17 Indiana Journal Global Legal Studies (forthcoming 2011). Available
-- Anna di Robilant, Genealogies of Soft Law, 54 AMERICAN JOURNAL OF COMPARATIVE LAW 499 (2006).

December 8: Complexity: Trade, States, Corporations and Human Rights
--Larry Catá Backer, Globalization and the Socialist Multinational: Cuba and ALBA’s Grannacional Projects at the Intersection of Business and Human Rights (August 1, 2010). Available at SSRN:

Wednesday, August 18, 2010

The Shape of the Chinese Communist Party in 2009 -- From Workers and Peasants to Structural Post-Revolutionary Leadership

The People's Daily recently reported on demographic information of Communist Party membership in China. China's CPC Members near 78 m, People's Daily (Aug. 2010). The roughly 78 million members includes the addition of 2.065 additional members over 2008. Id. Most of the numbers should not come as a surprise. What is noteworthy is the division among the occupations of CPC members. In some respects, CPC membership is more clearly beginning to reflect the maturity of a party in power rather than a revolutionary party of outsiders. Thus, while about 31 million CPC members were peasants and workers, almost 18 million were professionals and another 6.5 million were workers in Party and government offices. In addition, almost 28 million cadres, about 35.7% of the membership  were highly educated (junior college or higher).

This suggests the application of one of the great insights behind the often criticized framework underlying Jiang Zemin Theory (Sange Daibiao or Three Represents).

I have discussed some of the repercussions elsewhere.  See, Larry Catá Backer, The Rule of Law, the Chinese Communist Party, and Ideological Campaigns: Sange Daibiao (the 'Three Represents'), Socialist Rule of Law, and Modern Chinese Constitutionalism. Journal of Transnational Law and Contemporary Problems, Vol. 16, No. 1, 2006.

Sange Daibiao cannot be understood as another isolated instance of mere rhetoric; the importance of the connection between Deng Xiaoping Theory and Sange Daibiao, and their relationship to opening the membership of the CCP to previously excluded people cannot be underestimated. It is generally well understood that Sange Daibiao developed in the context of a campaign to open membership in the CCP to the emerging capitalist class in China. Related to that was the campaign to provide some protection for property rights, which saw significant amendments to the CCP Constitution. A number of commentators have noted that an important CCP goal is to co-opt the capitalist or market elements of Chinese society by offering a place in the CCP in return for adherence to CCP norms, including the basic socialist foundation of state organization. This is an important point—it suggests the very real ways in which membership in political society in China is structured around the leadership of the CCP, and that the nature of CCP leadership is more normative than political. This represents a great theoretical leap from the very structured vanguard theory of CCP membership, looking towards the conflation of a “rights rich” citizenship and with CCP membership. Id.

See also 三个代表, a gateway site to a collection of essays on the Three Represents Theory.

The CPC also faces issues that are becoming problems among the voting polities of Western democracies.  Among the more significant of these is the increasingly large portion of the group that are aging. In China, almost 15 million CPC members were retired, but only 2.3 million members were students. Close to 20 million CPC members were older than 60 years of age. Those numbers ought to cause some worry. It is likely necessary for those numbers to be reversed to maintain the effective leadership role for the CPC in the coming decades. While there is nothing wrong with a large number of aged members, and indeed, retired members provide stability and a connection with a vital past, the CPC cannot remain vigorous where its interests are skewed to meet the peculiar needs of the aged. To some extent the CPC appears to have been conscious of this, noting that about half of its members joined after the discrediting of the post Mao Zedong "Gang of Four" (四人帮). Also, about 18 million members were younger than 35.  And like large multi-ethnic states seeking to embrace gender equality, the CPC has a way to go.  Female CPC members are still less than 25% (almost 17 million members) and minorities  make up less than 7% of membership (5.13 members).

And, of course, the statistics do not answer a number of questions that will become more important as the CPC continues to mature as a governance institution.  The constitution of CPC membership in the western regions (自治区) merits special attention.  Failure to pay attention to the ethnic mix of membership, not merely at the cadre level but also in positions of authority may have lasting effects on the character of governance in the regions. The effects of corruption probes have been felt within the CPC apparatus as well as within state organs.  There were no statistics relating to the number of CPC members stripped of membership, the reasons for  removal from Party membership or the status of the cadre at the time of removal.   Lastly, the movement from pre- to post-revolutionary Party suggests that Party membership among the leadership economic enterprises might be as important as membership among functionaries within state organs.    

Monday, August 16, 2010

Developing a New Course--"Elements of Law"

Last year the law faculty at Penn State approved the creation of a new concept course, to be named "Elements of Law".  Its description was  meant to be general, to provide faculty with some space to develop concepts and ideas for a course on "meta-principles" either of the applied or theoretical kind.
Elements of Law orients students to legal research and reasoning through caselaw, statutory interpretation, and legal history, processes, and institutions.  The course covers topics across many substantive areas of law, and addresses legal methodology as it arises in the legal profession. Penn State Law, Course Descriptions.
These efforts are in line with those of many other American law schools that  seek some sort of bridge course between the undergraduate studies of most of its students and the peculiar norm-world of law.  In many places, these sorts of efforts focus on the lawyer's craft, offering courses in statutory interpretation, legal methods, legislation, legislation, or the like.  In other places the focus is more theoretical,  focusing on theories of law, justice or jurisprudence. 

Few of these efforts, however, seek to integrate the elements of jurisprudence and interpretation within the larger context of humanities studies.  Law's strong connection to sociology, political science, international relations, philosophy, rhetoric, and logic, for example, are difficult to ignore.  To segregate Law, and the law student, from the richness of humanities, ill-prepares the law student to serve his clients and society.  Thus, without establishing the connection between the humanities and the more pragmatically oriented "craft" aspects of the first year curriculum, students will be unable to understand the that law and the lawyer's role in society is embedded.  The lawyer does not sit apart from the society she serves; neither should she be educated as if this were the case.

Establishing these connections is critical for the first year law student.  In shaping this course, then, I wanted to blend an admittedly necessary focus on the lawyer's craft and the "language" of the law with a strong humanities focus.  That focus will help the law student grasp the connection between law and world in which the lawyer practices and in which law makes itself felt. The heart of this approach centers on an integrated analysis of a case study--the movement from the legal protection of segregated education to the constitutionalization of racial integration in education.  This requires the students to work through law in its sociological, political, philosophical, jurisprudential, cultural and other elements, all of which were critical components in the movement from segregation to desegregation in public education. Law--as constitution, statute, and cases--is woven into the larger historical, sociological, and political context.  At the same time, the role of philosophy, political theory, rhetoric and discursive tropes are examined both for their contribution to the development of "law" and to their instrumental role in that progress.

This course is still very much a work in progress.  However,  I wanted to share my initial syllabus in hopes of garnering suggestions, reactions and the like.  Without further introduction, here it is:


Elements of Law orients students to legal research and reasoning through caselaw, statutory interpretation, and legal history, processes, and institutions. The course covers topics across many substantive areas of law, and addresses legal methodology as it arises in the legal profession.


Reading assignments are set forth below in the syllabus. Specific reading assignments will also be announced from time to time in class. Additional readings and problems may be added or substituted throughout the semester. Please bring readings with you to each class.

1. William N. Eskridge, Jr., Philip P. Frickey & Elizabeth Garrett, Legislation and Statutory Interpretation. 2nd Edition. West Publishers. ISBN-13: 9781599410784. List Price $43 from the publisher.
2. Additional materials set out in the syllabus below. These materials may be accessed either through ANGEL or directly from the Internet sources specified.

1. Materials may be identified from time to time in class as supplemental materials for further reading by students.
This is a graduate level course. The nature of the interaction between faculty, students and the assigned readings may be different from the pattern of engagement to which the undergraduate student might be accustomed. You are responsible for the readings. The faculty member’s role is not to summarize the readings but to work from them to lead the student to larger insights or application of the materials to the course themes. Understand that there is no guarantee that we will be able to cover in class all material assigned for that class session. We may not get through all the readings identified in the syllabus. Anticipate, therefore, that there may be occasions when you will have read ahead or read material not covered in class but for which you will be responsible. . . . .

The course grade will be based on a take home exam. THE EXAM IS OPEN BOOK. You must work alone. You will have 24 hours to complete the exam from the time you pick it up. Students will be given the option of choosing the time you take the exam. The exam may be picked up on any day from the first day of final exams to 5:00 P.M. on the last day of the final exams period (Wednesday December 8, 2010 through Friday, December 17, 2010). . . .

LL.M. candidates will have 48 hours to finish the exam.

The awarding of grades is based on the curve system adopted by the faculty of the Law School and is subject to the limitations of those curve rules. I am required to adhere to this system. Students interested in discussing the curve system itself, its wisdom, or making proposals with respect to the system, are advised to consult their academic dean.

Law School rules require me to notify students of my attendance policy. First year and introductory classes provide the basis for your legal education. It is important for you to attend class. Also, I remind you that material not in your readings and for which you will be responsible will likely be covered in class from time to time during the course of class discussion (and may find its way into the final exam). . . . . 

Class participation is required. All students are expected to be prepared for each class session (that is, to have carefully read the materials assigned). That does not mean that you are expected to ‘know’ any particular ‘answers.’ Participation does not mean having the ‘right’ answers to the questions we discuss. Participation requires only that you have read and thought about the materials to be discussed and that you are prepared to engage in a give and take about the ideas, problems and conundrums raised by the issues we investigate. I reserve the power to adjust your final grade to reflect what in my sole judgment will have been either outstandingly good or bad participation.
Class Notes and Recording of Class. Please feel free to get together with your classmates for studying and sharing notes. It is sometimes efficient. Take such notes as you desire. All classes will be recorded and all of the recordings will be posted on the course ANGEL site for access by any student enrolled in the course. You are authorized to use class recordings only for your own study and review. However, you may not copy or download any class recording. Copying, downloading, dissemination, publication in any format or alternation of any class recording constitutes unauthorized use, is not permitted, and is a violation of the Honor Code. No personal recording of class.


I maintain an open door policy. I encourage you to see if me should you have any questions or concerns. Sometimes I may not be in my office. That does not mean I am unavailable. I will try to be in my office for walk-ins Mondays and Wednesdays from 4-5:30 P.M. or otherwise by appointment.

Technology has made it easy to communicate.  Please take advantage of it.

You are encouraged to contact me by e-mail. I will respond promptly.

Preface to Materials

This “Elements of Law” course is meant to provide a general foundation for your law studies. It is meant to provide you with an introduction to the basic issues of this field of study and the basic approaches to a successful understanding of its nature. It is designed to provide students with the basic analytical and conceptual tools necessary to understand both the more specifically focused courses they will take and to provide the “big picture.” As the course description suggests, Elements of Law “orients students”. That orientation is grounded in core questions: “what is it that lawyers research?”; “How do lawyer’s reason?”; “what are the appropriate sources for information, reasoning, and the rules lawyers are meant to consider, and apply?”; “what is and how does a lawyer use opinions written by judges to justify a decision on a case, or statutes and regulations written by authoritative governmental bodies?”; “why should a lawyer care about legal history, processes, and institutions?”

For our purposes, Elements of Law will concentrate on five topics that are meant, together, to get to the questions raised: (1) What is Law; (2) Sources of Law, Hierarchies of Law and the Role of Law; (3) Division of Power: The Organization of the American Federal Union and the U.S. in a Global Context; (4) The Role of the Courts; (5) Application: An Introduction to Constitutional Interpretation; and (6) Application: An Introduction to Statutory Interpretation.

What is Law? The course starts with a short introduction to the basic issues that form the undercurrent of virtually all every lawyer will undertake throughout their career. For students seeking to spend the rest of their professional lives engaged in law, or law related endeavors, it pays to sketch out, early on in the preparation for that sort of career, the basic parameters to which their professional lives will be confined. Thus, the course starts with the basics—considering the question, what is law? The answer is more elusive than a student might first consider. And the answer is important, because the extent of the law determines the borders of the sorts of undertakings to which a lawyer will be asked to provide services for clients. For our purposes, we will consider first the basics of law under Anglo-American legal systems, and principally the common law. We then consider the issue more broadly by considering the extent to which norms and social ordering can be considered law or affects law. We then turn to contemporary forms of potential law—surveillance, monitoring and disclosure, that is, the governance role of assessment. Lastly we consider the most diffuse forms of law under the concept of “governmentality.” In this section we consider modern forms of governance.

Sources of Law, Hierarchies of Law and the Role of Law. Having considered the nature of law, the class will then turn to a consideration of the sources of law, that is, from where is law produced. We will consider the various forms that law may take—constitution, statute, treaty, judicial decision, administrative regulation, procedural rule, etc. Having considered the multiple sources of law, we then consider how one goes about ordering these sources. For that purpose we consider hierarchies of law—is it possible to rank order these sources of law to determine which one is more authoritative than others? For that purpose we are introduced to the idea of the state as a principal center of law, and its relationship with the law or rules created among states—international law. The point is to see if one can determine rules for applying law when more than more rule might serve that purpose. Lastly, this section considers can issue that most lawyers take for granted without stopping long enough to consider—does law (and law making) have a purpose? We will consider two principal schools of thought—that law is meant to memorialize the customs and habits of the population, or that law is meant to reform, fix or change people and their habits (for the greater good). Most people assume one or the other position (and many judicial opinions do this without stating their position). This has a significant effect on how one understands and applies law.

Division of Power: The Organization of the American Federal Union and the U.S. in a Global Context. Having considered the object of our study—law—we then turn to a consideration of those institutions our society has created to wield law. We will briefly review the basics of the organization of the American state. We engage in this review not for purposes of civics but to acquire a more sophisticated understanding of the places where law originates and the ways in which societies can divide the power to make, apply and enforce law. We start with the General Government, considering the division of its power into three “bundles”—(a) Executive; (b) Legislative; (c) Judicial. We then consider the way in which these power divisions are policed by introducing the concepts of separation of powers and checks and balances. We then consider the division of authority in states, and its relationship to federal power. Lastly we briefly consider the authority of administrative agencies under our system of government.

The Role of the Courts. With this section the student arrives at the heart of the course materials. Because we are lawyers, and we will spend a great deal of time defending the rights of our clients before tribunals set up for that purpose, it is critical to consider the role of courts and their relationship to law. Indeed, the law-courts relationship is at the heart of our common law system, though the power of that direct relationship has been softened in recent years. It follows that a lawyer ought to be intimately acquainted with the role of courts in law and its relationship to the legislative and executive power. The section starts with the idea of judicial review and its limits, that is, the nature of the judicial authority to “say what the law is.” The enhanced relationship between courts and law leads to the critical issue of law--the way in which courts engage with law. This will serve as an introduction to theories of judicial interpretation—if courts have broad power to say what the law is, how do they go about that business? This is important not merely because it helps with case reading; a sensitivity to judicial interpretation is crucial to helping a lawyer anticipate how courts will approach novel issues. Thus, the remainder of this section turns to theories of statutory interpretation. We start with the role of text and precedent and the controversy over resort to extrinsic sources (that us, to materials other than the text of the statute itself). We then consider whether constitutional interpretation presents a special case. For that purpose we consider the major schools of constitutional interpretation: originalist theories (textualism and original understanding), legal process theory, and evolutive theories of legitimate constitutional interpretation. We end by considering the role of stare decisis in interpretation.

Application I: An Introduction to Constitutional Interpretation. Having considered theories of legal interpretation in the abstract, this section presents these theories in action. For that purpose students will consider constitutional interpretation through the development of the constitutional law of racial discrimination and the application of the 14th Amendment. This section has two principal purposes, first to apply the theoretical materials of the prior sections and second to introduce students to the development of an important substantive area of law. We start with a consideration of the 14th Amendment—from idea to law—by briefly considering historical materials. We then look at the construction of the initial interpretation of the 14th Amendment in matters of race, and the move toward the constitutionalization of race discrimination through the development of the doctrine of “separate but equal.” We then consider the way in which “separate but equal was reconstructed over half a century and the abandonment of the “separate but equal doctrine” in school desegregation cases. We then chart the course of reform from desegregation to integration as a constitutional policy and consider the limits of judicial power to force the issue. What makes this study particularly interesting is that this century long process of interpretation, marked by substantial shifts in constitutional meaning, was accomplished without changing a word of the 14th Amendment.

Application II: An Introduction to Statutory Interpretation in context--legislation, federal and state power and the intervention of the courts. Time permitting, the last section of materials considers issues of interpretation of statutes. A number of problems of interpretation will be considered. These may include: considering the interpretation of statutes defining race at the time of Plessy, considering the appropriate interpretation of the Judiciary Act of 1890 considered in Marbury v. Madison, and considering the appropriate interpretation of the Florida elections statute at issue in Bush v. Gore. It is anticipated that students will take an active role in these exercises.

Overall Course Objectives. You will be introduced to a wide variety of materials throughout this course. The purpose of the materials is to expose the student to a number of important concepts that form part of virtually all law study. In addition, the student will be expected to begin to master methods of approaching law and legal studies that ought to prove useful in their careers. More specifically, by the end of the semester the student will be expected to have a working knowledge of the following:

(1) The differences between customary or common law, statutory or positive law, and emerging forms of governance;
(2) A working knowledge of basic sources of law (constitutions, statutes, treaties, etc.), hierarchies of law (the relationship between constitution, statutes, caselaw, treaties, etc.), and the role of law) and the role of law (as a function of state action or as an autonomous set of norms);

(3) A general knowledge of the legal basis for the organization of the American Federal Union and the U.S. in a Global Context; there will be a substantive component—the student will be expected to master the Non-delegation doctrine;

(4) A substantial knowledge of the role of the Courts in the American system—the extent of the judicial authority to say what the law is (that is the doctrine of judicial review)

(5) A working knowledge of how courts engage with the law—theories of judicial interpretation of statutory and constitutional law.

(6) A substantial knowledge of the substantive law of the 14th Amendment as it evolved from the 19th century and applied to racial segregation of public schools, including the constitutional limits of the remedial power of courts.

(7) Working knowledge of issues of statutory interpretation.

A detailed syllabus, with readings is provided below. Additional materials may be distributed. Please refer to the Angel site for readings other than those in the required text. Specific assignments will be posted ot the Angel site before each class.

Detailed Syllabus
I. What is Law

A. The Common Law
--Arthur R. Hogue, Origins of the Common Law (Indianapolis, Liberty Fund 1986 (1966)); Chapter 1 (3-29) and Chapter 8 (185-190).

B. Custom versus Statute: The Norm, The Social Order, The Legal Order
--Larry Catá Backer, Chroniclers in the Field of Cultural Production: Interpretive Conversations Between Courts and Culture, 20 Boston College Third World Law Journal 291 (2000). READ pp. 291-305.
--John Henry Merrymen et al., The Civil Law Tradition: Europe, Latin America, and East Asia. Michie 1994. READ pp. 447-454; 476-485.
Optional Text:
--Hans Kelson, Pure Theory of Law (University of California Press, 1967); pp. 3-54.

C. The Administrative function.
--Edward L. Glaeser and Andrei Schleifer, The Rise of the Regulatory State Journal of Economic Literature XLI:401-425 (2003). READ ALL BUT SECTION 3.
--Larry Catá Backer, Surveillance and Control: Privatizing and Nationalizing Corporate Monitoring after Sarbanes-Oxley. Law Review of Michigan State University-Detroit College of Law, 204(2) Michigan State Law Review 327. READ pp. 333-353; 432-37.

D. Surveillance, Monitoring, Disclosure, Governmentality
-- Backer, Larry Catá, Global Panopticism: States, Corporations and the Governance Effects of Monitoring Regimes. Indiana Journal of Global Legal Studies, Vol. 15, 2007. READ pp. 101-138
Available at SSRN:
--Michael Reed, From the ‘Cage’ to the ‘Gaze’? The Dynamics of Organizational Control in Late Modernity, in Regulation and Organizations: International Perspectives 17 (Glenn Morgan & Lars Engwall eds., 1999). READ 28-31.
Optional Text
--Michel Foucault, Governmentality, in The Foucault Effect: Studies in Governmentality 87 (Graham Burchell, Colin Gordon & Peter Miller eds., 1991).

E. The Role of Law—What Roles Does Law Serve: Class Exercise
—law as an instrument of the state/government with authority to enact it; Law as the product of the national will.
--law as autonomous of government.
--Larry Catá Backer, Reifying Law: Understanding Law Beyond the State, 26(3) Penn State International Law Review 521 (2008). READ 521-46.
--John Locke, Second Treatise on Government (Thomas P. Pearson, ed., New York: MacMillan 1952) Chapter XI (Of the Extent of the Legislative Power).
--Carl Schmitt, Legality and Legitimacy 18 (Jeffrey Seitzer trans., Duke U. Press 2004) (1932). READ pp. 17-26.

II. Sources of Law, Hierarchies of Law and the Role of Law in the United States

A. Sources of Law: Constitutions, Statutes, Treaties, Regulations, Judicial Decisions, other sources.
--K. Zweigert & H. Kötz, An Introduction to Comparative Law 3rd ed. Oxford 1998. Read pp. 249-255.
-- U.S. Constitution, Art. VI. Cl. 2.
--German Basic Law, arts.20-25; 31.
--Constitution of South Africa, arts. 2, 39, 146-150.

B. Hierarchies of Law Within the Domestic Legal Order and Between National and International Law
--Edward S. Corwin, The “Higher Law” Background of American Constitutional Law (Cornell U. Press 1955). READ pp. 72-89.
--Charles McIlwain, Constitutionalism, Ancient and Modern (Cornell U. Press, rev. ed. 1947).
--Medellín v. Texas, 128 S.Ct. 1346 (2008) READ MAJORITY OPINION and skim concurring and dissenting opinions).
--Pruneyard Shopping Ctr. V. Robins, 447 U. S. 74 (1980). Read pp 74-81. A

C. CLASS EXERCISE—Regulating Gasoline Consumption; applying concepts of Parts I & II.

III. Division of Power: The Organization of the American Federal Union and the U.S. in a Global Context

A. The General Government
1. Division of Power: (a) Executive; (b) Legislative; (c) Judicial
2. Separation of Powers and Checks and Balances
--Youngstown Sheet & Tube Co. v. Sawyer (The Steel Seizure Case), 343 U.S. 579 (1952).
B. The Administrative Branches: The Non-Delegation Doctrine, An Introduction
--Mistretta v. U.S., 488 U.S. 361 (1988).

C. The States and the People
Popular referendums:
--K.K. DuVivier, Out of the Bottle: The Genie of Direct Democracy, 70 Alb. L. Rev. 1045 (2007). --Clayton Gillette, Is Direct Democracy Anti-Democratic?, 34 Willamette L. Rev. 609 (1998). READ 620-636.

D. Constitution, 9th & 10th Amendments
--Gonzales v. Raich, 5454 U.S. 1 (2005) (medical marijuana).

IV. The Role of the Courts:

A. The Doctrine of Judicial Review: Judicial Authority to “say what the law is”
--Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)
--McColloch v. Maryland, 17 U.S. 316 (1819)
--Cooper v. Aaron, 358 U.S. 1 (1958)
--Edwin Meese III, The Law of the Constitution, 61 Tul. L. Rev. 979 (1987).

B. CLASS EXERCISE—Are Officials required to follow Supreme Court Interpretation Beyond the Law of the Case?

C. How Courts Engage With Law: Theories of Judicial Interpretation
--Larry Catá Backer, Retaining Judicial Authority: A Preliminary Inquiry on the Dominion of Judges, 12 William & Mary Bill of Rights Journal 117 (2003). READ 152-72. Available

1. Theories of statutory interpretation
--William N. Eskridge, Jr., Philip P. Frickey and Elizabeth Garrett, Legislation and Statutory Interpretation (2nd ed., Foundation Press, 2006). READ Chapter 6.

2. The Role of Text and Precedent
--William N. Eskridge, Jr., Philip P. Frickey and Elizabeth Garrett, Legislation and Statutory Interpretation (2nd ed., Foundation Press, 2006). READ Chapter 7.

3. The Controversy Over Resort to Extrinsic Sources
--William N. Eskridge, Jr., Philip P. Frickey and Elizabeth Garrett, Legislation and Statutory Interpretation (2nd ed., Foundation Press, 2006). READ Chapter 8.

C. Constitutional Interpretation; A Special Case?
Readings: Application of Eskridge, et al. Chaps 6-8 to constitutional context
--James Bradley Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 Harv. L. Rev. 129 (1893).
--Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (The University Center for Human Values Series; Princeton University Press (July 27, 1998) (ISBN-9780691004006))
--Poe v. Ulman (Harlan)
--John Hart Ely, Democracy and Distrust: A Theory of Judicial Review, (1980) pp. 88-103. 
--Gary Minda, The Jurisprudential Movements of the 1980s, 50 Ohio St. L.J. 599 (1989)

D. A Note on Stare Decisis in Constitutional Cases and Under State Law
--Planned Parenthood of SE PA v. Casey, 505 U.S. 833 (1992) (federal)
--Auto Equity Sales, Inc. v. Superior Court, 57 Cal. 2d 450 (1962) (state).

V. Application: An Introduction to Constitutional Interpretation in Context.
This long portion of the course will consider constitutional interpretation through the development of the constitutional law of racial discrimination and the application of the 14th Amendment. It introduces the student to textual interpretation and to the development of complex judicial glosses on text. This requires the students to work through law in its sociological, political, philosophical, jurisprudential, cultural and other elements, all of which were critical components in the movement from segregation to desegregation in public education. Law--as constitution, statute, and cases--is woven into the larger historical, sociological, and political context.  The role of philosophy, political theory, rhetoric and discursive tropes are explored examined both for their contribution to the development of "law" and to their instrumental role in that progress.

A. The 14th Amendment—From idea to law
Historical background materials

B. Initial Meaning:
--The Slaughter House Cases, 83 U.S. (16 Wall.) 36 (1873)
--Strauder v.West Virginia, 100 U.S. 303 (1879)
--The Civil Rights Cases, 109 U.S. 3 (1883)

C. Constitutionalizing Race Discrimination
--Plessy v. Ferguson, 163 U.S. 537 (1896)

D. Reconstructing the meaning of “separate but equal.”
--McCabe v. Atchison, Topeka & Santa Fe Railway, 235 U.S. 151 (1914)
--Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938)
--Sipuel v. Board of Regents, 332 U.S. 631 (1948)
--Fisher v. Hurst, 333 U.S. 147 (1948)
--Sweatt v. Painter, 339 U.S. 629 (1950)
--McLaurin v. Oklahoma State Regents, 339 U.S. 637 (1950)

E. Abandoning “Separate but Equal” as Constitutional Doctrine
--Brown v. Board of Education, 347 U.S. 483 (1954)
--Bolling v. Sharpe, 347 U.S. 497 (1954)

F. Aftermath—From Desegregation to Integration; Race and Education
--Griffin v. County School Board, 377 U.S. 218 (1964)
--Green v. New Kent County School Board, 391 U.S. 430 (1968)
--Swann v. Charlotte-Mecklenburg Board of Educ., 402 U.S. 1 (1971)
--Milliken v. Bradley, 4178 U.S. 717 (1974)
--Freeman v. Pitts, 503 U.S. 467 (1992)

G. The limits of Judicial Remedial Power
--Missouri v. Jenkins (Jenkins II), 495 U.S. 33 (1977)
--Missouri v. Jenkins (Jenkins III) 515 U.S. 70 (1995)

VI. Application: An Introduction to Statutory Interpretation
This long portion of the course looks at the different approach to statutory interpretation by examining a number of statutory issues . Each of these sections is designed to serve as a class discussion problem in which students apply the materials learned to each of these different interpretive contexts.

A. What is Race:
Problem—interpreting the Louisiana Statute under which Plessy was barred from the train.

B. Statutory Interpretation: Marbury and the Judiciary Act of 1790.
Problem—avoiding the constitutional issues in Marbury through alternative interpretation of the statute at issue.

C. The Saga of Bush v. Gore: litigation over the outcome of the 2000 Presidential Election and the interpretation of Florida’s Election Law.
Problem—the limits of court authority to interpret statutes: when does (lawful) interpretation become (illegitimate) legislation?
--Backer, Larry Catá, Using Law Against Itself: Bush v. Gore Applied in the Courts. Rutgers Law Review, Vol. 55(4): (2003).
--Backer, Larry Catá , Race, 'the Race', and the Republic: Re-Conceiving Judicial Authority After Bush v. Gore, 51 Catholic University Law Review 1057 (2002).
--The Cases: Bush v.Gore 531 U.S. 98 (2000).