At the 3rd U.N. Forum on Business and Human Rights--Remarks at Side Event: "Conceptual, Structural, and Operationalization Constraints on the Right to Remedy Under the Guiding Principles"

In a prior post I noted the then upcoming Third Annual United Nations Forum on Business and Human Rights, of the Working Group on the issue of human rights and transnational corporations and other business enterprises, will be held in Geneva 1-3 December 2014. (e.g.,  The 2014 United Nations Forum on Business and Human Rights, "Advancing Business and Human Rights Globally: Alignment, Adherence and Accountability").

I have the delightful privilege of having helped organize one of the side events of this Forum, "Ensuring access to effective judicial & non-judicial remedies: progress, trends & recommendations" with colleagues from the International Corporate Accountability Roundtable (ICAR), Business and Human Rights Resource Center (BHRRC), Corporate Responsibility Coalition (CORE), European Coalition for Corporate Justice (ECCJ), International Federation for Human Rights, and Pennsylvania State University School of Law. The event will be held 1 December 2014 in the Palais des Nations Room XI, from 11:45 – 13:15.

This post includes the Session Concept Note and my remarks for this session, "Conceptual, Structural, and Operational Constraints on the Right to Remedy Under the Guiding Principles."

Daniel Ivo Odon on Privacy Rights and Search Engine Liability

Daniel Ivo Odon, my SJD student at Penn State Law and the winner of the inaugural Mauricio Correa Human Rights Award from the Brazilian Bar Association, has written about the recent Argentine Supreme Court decision in which the court rejected the effort by a prominent model,  Maria Belén Rodriguez, to hold search engines, including Google, liable for permitting the linking of her name and modeling photos to pornographic websites.  Though she had won in the inferior courts of Argentine (see HERE) the Argentine Supreme Court rejected her claim. 

This litigation is one of many that have sought to impose some sort of obligaiton on search engines to better police their spaces.  As the New Yirk Tomes noted in 2010:

Google and Yahoo won an appeal of a lawsuit brought by an Argentine entertainer, Virginia Da Cunha. Her name and some photos showed up in search results connected with sex sites. The appeals court ruled Google and Yahoo weren’t liable for defamation for third-party content.

The victory was a welcome one, but the companies face more than a hundred similar suits in Argentina. But while Internet companies struggle in authoritarian countries over what’s in search results, legal experts say that the Argentine cases are a an example of why developing countries need clear laws governing Internet content. Most of Latin America lacks legislation comparable to the United States’ Safe Harbors act that protects technology companies from liability over third-party content.. . . .

 Lawyers think it is unlikely that something similar will even be debated in Argentina. Although Google and Yahoo Argentina won the Da Cunha case and may have the momentum for change, they face many more battles from unhappy private citizens. Eric Goldman, director of the High Tech Law Center at Santa Clara University in the United States, questions that approach to regulating the Internet. “These third parties want the right to veto search results they don’t like, but it’s doubtful they will exercise that veto power in a manner that improves the information economy.” (Vinod Sreeharsha, No Safe Harbors in Argentina. The New York Times, Aug. 20, 2010)

 And indeed, this past month the Argentine Supreme Court determined that  search engines are not legally responsible for any content they index, or the consequences of that indexing. (Google victory in Argentina: search engines are not responsible for content they index, Merco Press, October 31, 2014) ("According to the justices, Google and other search engines can be taken to court if users have filed requests to remove links and have refused to comply. We praise this decision. It’s a great day for the Internet and freedom of expression,” said María Baudino, the head of Google’s Legal Department in Latin America.").  

According to this report, Ms. Rodriguez's lawyers intend to take the case next to the Inter-American Court of Human Rights. It is possible that the Inter-American Court will use the opportunity to reshape the scope of the legal obligations of search and indexing companies, especially in the context of changes in European law.

Mr. Odon's remarks are set out below.

Beth Farmer on "Resolving Competition Related Disputes Under the Anti Monopoly Law."

(Pix (c) Larry Catá Backer 2014)

I have posted the conference program of the 9th Annual Conference of the European China Law Studies Association, with its theme, “Making, Enforcing and Accessing the Law” (HERE).

My colleague Beth Farmer, Professor of Law and International Affairs, and McQuaide Blasko Faculty Scholar at the Penn State Law School delivered an excellent paper at the Conference's Panel on "Making, Enforcing and Accessing Law."

Her paper was entitled "Resolving Competition Related Disputes Under the AML." The POWERPOINT presentation may be accessed here.

A summary of the paper follows:

Ruminations 54: On the Cultural Semiotics of "Honesty" in the U.S. and "Zhi" in China and Their Consequences for Surveillance Legal Cultures

 (Zhi--ten eyes--modern form)

Over the last century national societies have been engulfed in a great debate about the acceptability of surveillance as part of the basic framework of governmental operation.  Part of the framework for this debate centers on the cultural consequences of the meaning of words.  Our political and policy arguments are always complicated by the cultural meaning of words, of the force with which words are embedded in cultural assumptions about "right," "wrong," "good", evil" and the character of the people to which these definitions apply.  

We can reference this cultural semiotics as the parallel language secreted within our discourse whose power to shape the meaning and effect of words can substantially affect the way in which people attach meaning and inference, the way in which they attach value and instructions for "right" or "proper" conduct.  This cultural semiotics produces quite distinct instructions depending on language.  This is particularly evident in the differences between instructions embedded in the meaning of English and Chinese words.

One of the most interesting examples of this cultural embedding--this secondary language of meaning that tends to drive debate from out of the sub-conscious bedrock of our culture--is attached to the meaning and cultural consequences of the word--honesty, or Zhi.  It is in that culturally compelling parallel language/instruction that one can become aware of the way that the word can implicate both personal traits and a permission to allow outsiders  to control behavior.  And one can see in the cultural semiotics of "honesty" and "zhi" the instructions for the development of a surveillance society.

Chapter 16 ( The Doctrine of Judicial Review): From "Elements of Law" to "Introduction to the Law and Legal System of the United States"--Building an Introductory Course to the Legal Curriculum for the 21st Century

(Pix (c) Larry Catá Backer 2014)

Since 2010, I have been posting on the development of a new course I have been developing for our first year law school students, "Elements of Law." The course originally had a quite modest objective--to introduce law students to legal research and reasoning through case law, statutory interpretation, and legal history, processes, and institutions. I chose to broaden its objectives within these specific parameters and development a framing and concepts course that would provide a deep foundation to law students on the legal system they were undertaking to study.

--Elements of Law 3.0: On the Relevance of a First Year Law Course Designed to Frame the Law School Curriculum).
--Developing a New Course--"Elements of Law"
--"Elements of Law" Course 2.0: A Framework Course for the U.S. Law Curriculum,  

Grounded in the principles of the sociology of law, the course has morphed into an effort to introduce students to law as a self-referencing system with its own particular structures, premises, constraints and language, with its own logic and taboos and its own means of understanding the world. That systemicity (cf. Peter Checkland, Systems Thinking, Systems Practice, Chichester : John Wiley and Sons Ltd, 1999) is then a critical element in the way in which the legal system (in this case of the United States) interacts with the world, both as a legal and as a socio-economic-political actor. The course has also expanded from its original narrow and technical focus, to a broader focus on principles and the use of language and logic to build and operate a system of law. That broadening has made it possible to offer the course not just to first year law students, but also to graduate students in the social sciences and in international affairs, as a grounding in the legal systems that are important in their respective fields.

This and the posts that follow produces some of the materials I will be presenting to the class. I offer these materials in hopes that they may prove of use and that you might share comments, perspectives and suggestions as I develop those materials on this site. Thanks.

This post includes a draft of the first chapter of Part IV ( The Role of the Courts: Judicial Review, Interpretive Techniques, and Legitimacy ) -- Chapter 16 (The Doctrine of Judicial Review).

 

On the Human Rights Obligations of Universities--Announcing a Project on Operationalization

(Pix (c) Larry Catá Backer 2014)

Influential American academics have been coming around to the notion that  the emerging international principles (and structures) of human rights norms and processes ought in some way to apply to U.S: universities--at least with respect to their interactions with their supply chains. See Michale Posner, Commentary: Universities Can Put Their Economic Clout to Good Use, The Chronicle of Higher Education (Nov. 17, 2014); Michael Posner, Remarks: Universities Not Making Enough Progress to Protect Human Rights In Supply Chain, Spending or Investments, Address given at the University of Michigan, October 10, 2014, Ann Arbor, Michigan.

I think this represents an important step in the right direction, as critical actors in the academic community begin to take up this important issue. It is a step, though, that carries with it a risk, one evident in current approaches, that may narrow the engagement of universities only to those activities between the university and outsiders (for example through their supply chains).  That itself would serve to build a wall between human rights obligations and the internal operation of universities--and that would be a real tragedy.  

This post considers those issues and announces a project to theorize and operationalize the human rights obligations of universities.

Chapter 15 ( The Federal-State Interplay, the 9th and 10th Amendments of the Federal Constitution): From "Elements of Law" to "Introduction to the Law and Legal System of the United States"--Building an Introductory Course to the Legal Curriculum for the 21st Century

(Pix (c) Larry Catá Backer 2014)

Since 2010, I have been posting on the development of a new course I have been developing for our first year law school students, "Elements of Law." The course originally had a quite modest objective--to introduce law students to legal research and reasoning through case law, statutory interpretation, and legal history, processes, and institutions. I chose to broaden its objectives within these specific parameters and development a framing and concepts course that would provide a deep foundation to law students on the legal system they were undertaking to study.

--Elements of Law 3.0: On the Relevance of a First Year Law Course Designed to Frame the Law School Curriculum).
--Developing a New Course--"Elements of Law"
--"Elements of Law" Course 2.0: A Framework Course for the U.S. Law Curriculum,  

Grounded in the principles of the sociology of law, the course has morphed into an effort to introduce students to law as a self-referencing system with its own particular structures, premises, constraints and language, with its own logic and taboos and its own means of understanding the world. That systemicity (cf. Peter Checkland, Systems Thinking, Systems Practice, Chichester : John Wiley and Sons Ltd, 1999) is then a critical element in the way in which the legal system (in this case of the United States) interacts with the world, both as a legal and as a socio-economic-political actor. The course has also expanded from its original narrow and technical focus, to a broader focus on principles and the use of language and logic to build and operate a system of law. That broadening has made it possible to offer the course not just to first year law students, but also to graduate students in the social sciences and in international affairs, as a grounding in the legal systems that are important in their respective fields.

This and the posts that follow produces some of the materials I will be presenting to the class. I offer these materials in hopes that they may prove of use and that you might share comments, perspectives and suggestions as I develop those materials on this site. Thanks.

This post includes a draft of the next chapter of Part III (Institutional Architecture of Law and Governance: The United States and Law Making) -- Chapter 15 (The Federal-State Interplay, the 9th and 10th Amendments of the Federal Constitution).

On Organizing Principles for a Collective Presidency and for a Petitioning System in China: Paper Presentations at European China Law Studies Association Conference

(Pix (c) Larry Catá Backer 2014)

I have posted the conference program of the 9th Annual Conference of the European China Law Studies Association, with its theme, “Making, Enforcing and Accessing the Law” (HERE). I will be participating in the panel, “Socialist Democracy: Theory, Practice and Innovations.”

I will be considering the theoretical and operationalization issues that touch on the development of a “collective presidency” model in China. The paper, “Crafting a Theory of Socialist Democracy for China in the 21st Century: Considering Hu Angang’s Theory of Collective Presidency in the Context of the Emerging Chinese Constitutional State” will be published by the Asian Pacific Law and Policy Journal (University of Hawaii) in 2015 and may be accessed HERE. The POWERPOINT presentation may be accessed: ENGLISH VERSION HERE; and CHINESE LANGUAGE VERSION HERE.

With my co-author Keren Wang, a fellow at the Coalition for Peace & Ethics and a PhD candidate in the Penn State School of Communication Arts and Sciences, we will also be presenting a paper, that considers the importance of the petitioning system in China, Shangfang, as a basis for developing methods for resolution of disputes relating to administrative actions within the emerging structures of Chinese Socialist Rule fo Law principles. The paper, “Institutionalizing Shangfang Within the Chinese Socialist Rule of Law Framework.” This paper also forms a part of the panel, “Socialist Democracy: Theory, Practice and Innovations.” The paper may be accessed HERE. The POWERPOINT may be accessed HERE.

The abstracts of both papers follow.

9th Annual Conference of the European China Law Studies Association, Hong Kong

It is with great pleasure that I note that the 9th Annual Conference of the European China Law Studies Association, with its theme, “Making, Enforcing and Accessing the Law” is taking place 15-16 November 2014 in Hong Kong and is sponsored this year by the Chinese University of Hong Kong.

The program, which can be accessed HERE, is rich and diverse in topics and viewpoints. It is also available below along with summaries of the plenary session presentations.

Chapter 14 ( The States and the People; Popular Referenda): From "Elements of Law" to "Introduction to the Law and Legal System of the United States"--Building an Introductory Course to the Legal Curriculum for the 21st Century

(Pix (c) Larry Catá Backer 2014)

Since 2010, I have been posting on the development of a new course I have been developing for our first year law school students, "Elements of Law." The course originally had a quite modest objective--to introduce law students to legal research and reasoning through case law, statutory interpretation, and legal history, processes, and institutions. I chose to broaden its objectives within these specific parameters and development a framing and concepts course that would provide a deep foundation to law students on the legal system they were undertaking to study.

--Elements of Law 3.0: On the Relevance of a First Year Law Course Designed to Frame the Law School Curriculum).
--Developing a New Course--"Elements of Law"
--"Elements of Law" Course 2.0: A Framework Course for the U.S. Law Curriculum,  

Grounded in the principles of the sociology of law, the course has morphed into an effort to introduce students to law as a self-referencing system with its own particular structures, premises, constraints and language, with its own logic and taboos and its own means of understanding the world. That systemicity (cf. Peter Checkland, Systems Thinking, Systems Practice, Chichester : John Wiley and Sons Ltd, 1999) is then a critical element in the way in which the legal system (in this case of the United States) interacts with the world, both as a legal and as a socio-economic-political actor. The course has also expanded from its original narrow and technical focus, to a broader focus on principles and the use of language and logic to build and operate a system of law. That broadening has made it possible to offer the course not just to first year law students, but also to graduate students in the social sciences and in international affairs, as a grounding in the legal systems that are important in their respective fields.

This and the posts that follow produces some of the materials I will be presenting to the class. I offer these materials in hopes that they may prove of use and that you might share comments, perspectives and suggestions as I develop those materials on this site. Thanks.

This post includes a draft of the next chapter of Part III (Institutional Architecture of Law and Governance: The United States and Law Making) -- Chapter 14 (The State and the People; Popular Referenda). 

 

Announcing Publication of "The Semiotics of Law in Legal Education: Signs in Law--A Source Book" (Jan Broekman and Larry Catá Backer, eds., Springer 2014)

I am happy to report  the publication of the e-book version of our book, The Semiotics of Law in Legal Education: Signs in Law--A Source Book (Jan Broekman and Larry Catá Backer, eds., Springer 2014 (ISBN 978-3-319-09837-1)).  The hardback version (ISBN 978-3-319-09836-4) will be available December 14, 2014. 

Chapter 13 ( The Administrative Branches: The Non-Delegation Doctrine, An Introduction ): From "Elements of Law" to "Introduction to the Law and Legal System of the United States"--Building an Introductory Course to the Legal Curriculum for the 21st Century

(Pix (c) Larry Catá Backer 2014)

Since 2010, I have been posting on the development of a new course I have been developing for our first year law school students, "Elements of Law." The course originally had a quite modest objective--to introduce law students to legal research and reasoning through case law, statutory interpretation, and legal history, processes, and institutions. I chose to broaden its objectives within these specific parameters and development a framing and concepts course that would provide a deep foundation to law students on the legal system they were undertaking to study.

--Elements of Law 3.0: On the Relevance of a First Year Law Course Designed to Frame the Law School Curriculum).
--Developing a New Course--"Elements of Law"
--"Elements of Law" Course 2.0: A Framework Course for the U.S. Law Curriculum,  

Grounded in the principles of the sociology of law, the course has morphed into an effort to introduce students to law as a self-referencing system with its own particular structures, premises, constraints and language, with its own logic and taboos and its own means of understanding the world. That systemicity (cf. Peter Checkland, Systems Thinking, Systems Practice, Chichester : John Wiley and Sons Ltd, 1999) is then a critical element in the way in which the legal system (in this case of the United States) interacts with the world, both as a legal and as a socio-economic-political actor. The course has also expanded from its original narrow and technical focus, to a broader focus on principles and the use of language and logic to build and operate a system of law. That broadening has made it possible to offer the course not just to first year law students, but also to graduate students in the social sciences and in international affairs, as a grounding in the legal systems that are important in their respective fields.

This and the posts that follow produces some of the materials I will be presenting to the class. I offer these materials in hopes that they may prove of use and that you might share comments, perspectives and suggestions as I develop those materials on this site. Thanks.

This post includes a draft of the next chapter of Part III (Institutional Architecture of Law and Governance: The United States and Law Making) -- Chapter 13 (The Administrative Branches: The Non-Delegation Doctrine, An Introduction).

The 2014 United Nations Forum on Business and Human Rights, "Advancing Business and Human Rights Globally: Alignment, Adherence and Accountability"

The upcoming Third Annual United Nations Forum on Business and Human Rights, of the Working Group on the issue of human rights and transnational corporations and other business enterprises, will be held in Geneva 1-3 December 2014. The theme this year is: “Advancing business and human rights globally: alignment, adherence and accountability.”

About the Forum

The United Nations Forum on Business and Human Rights is a space for representatives and practitioners from civil society, business, government, international organizations and affected stakeholders to take stock of challenges and discuss ways to move forward in carrying out the Guiding Principles on Business and Human Rights – a global standard for preventing and addressing the risk of adverse impacts on human rights linked to business activity. The Forum was established by the Human Rights Council, and is guided by the United Nations Working Group on Business and Human Rights. Last year’s event attracted around 1,500 persons from over 100 countries.

Building on the previous two fora of 2012 and 2013, the third annual Forum this year will focus on:

-Strengthening multi-stakeholder dialogue and engagement
-Discussing national action plans to implement the Guiding Principles
-Exploring access to effective remedy
-Identifying current and good practice

 The Human Rights Council established the United Nations Forum on Business and Human Rights to serve as a key global platform for stakeholders to ”discuss trends and challenges in the implementation of the Guiding Principles and promote dialogue and cooperation on issues linked to business and human rights.”

Press release: How business impacts human rights: Global event to discuss challenges and solutions UN Forum on Business and Human Rights, 1-3 December, Palais des Nations, Geneva

The Background, Preliminary Program and Concept Note follow:

Announcing "Business and Human Rights Jounal" a New Cambridge Journal and Call for Papers

It is my great pleasure to pass along an announcement of the start of what will be an excellent and much needed journal established under the aegis of Cambridge University Press--the Business and Human Rights Journal.

A description of the new Journal, on whose editorial board I serve, and the initial call for papers follows, along with a list of the editors in chief and the editorial board of the Journal. Please consider submitting your manuscripts to the BHRJ.

A More Muscular Mass Line: Shan Gao on " Reshaping the leadership of People’s Democratic Dictatorship: Mass Line Education in a nutshell"

The mass line has been a central element of the Chinese Communist line for a long time.  But it has undergone significant development, especially in the first decades of the 21st century. 

 

But the mass line itself can be understood as containing two distinct dimensions.  One dimension is normative.  The mass line references the democratic obligation of the vanguard party to be responsive to the people as it moves society toward the achievement of a communist state.  That is inherent in the General Program of the Chinese Communist Party Constitution ("The Party follows the mass line in its work, doing everything for the masses, relying on them in every task, carrying out the principle of "from the masses, to the masses," and translating its correct views into action by the masses of their own accord. The biggest political advantage of the Party lies in its close ties with the masses while the biggest potential danger for it as a governing party comes from its divorce from them.").

But equally important, and perhaps more so since the 18th Communist Party Congress, has been its intra-Party and disciplinary dimensions. That is also inherent in the General Program of the Chinese Communist Party Constitution ("The Party's style of work and its maintenance of ties with the masses of the people are a matter of vital importance to the Party. The Party will establish a sound system for punishing and preventing corruption by fighting it in a comprehensive way, addressing both its symptoms and root cause and combining punishment with prevention, with the emphasis on prevention. The Party will persistently oppose corruption and step up efforts to improve its style of work and uphold integrity." ). In this aspect, the mass line serves as a disciplinary technique, a measure of the responsiveness of party cadres to the people and a standard against which to measure corruption, an important element of f Xi Jinping's Five Key Points on Chinese Rule of Law (see HERE). 

The upcoming education campaign, including cracking down on undesirable work styles, will bring a closer tie between the Party and the people, the editorial says.

Undesirable work styles, such as formalism, bureaucratism, hedonism and extravagance, are like an invisible wall that cuts off the Party from the people, depriving the CPC of people foundation, it says.

Faced with the challenges in the new era, all CPC members should carry forward the glorious tradition of arduously struggle and make exemplary conducts, it adds. (People's Daily editorial stresses stronger ties with masses, Xinhua, July 1, 2013)

This post highlights a short essay produced by Shan Gao, a member of the research team at the Coalition for Peace and Ethics, that considers the current form of mass line education among party cadres.  The essay,  

-->Reshaping the leadership of People’s Democratic Dictatorship: Mass Line Education in a nutshell, looks in more detail at the shape and content of the current mass line education campaign.  While the effects appears solely aimed at Party discipline, its effects will likley be widely felt throughout Chinese society and business. 

Chapter 12 ( The General Government; Separation of Powers and Checks and Balances): From "Elements of Law" to "Introduction to the Law and Legal System of the United States"--Building an Introductory Course to the Legal Curriculum for the 21st Century

(Pix (c) Larry Catá Backer 2014)

Since 2010, I have been posting on the development of a new course I have been developing for our first year law school students, "Elements of Law." The course originally had a quite modest objective--to introduce law students to legal research and reasoning through case law, statutory interpretation, and legal history, processes, and institutions. I chose to broaden its objectives within these specific parameters and development a framing and concepts course that would provide a deep foundation to law students on the legal system they were undertaking to study.

--Elements of Law 3.0: On the Relevance of a First Year Law Course Designed to Frame the Law School Curriculum).
--Developing a New Course--"Elements of Law"
--"Elements of Law" Course 2.0: A Framework Course for the U.S. Law Curriculum,  

Grounded in the principles of the sociology of law, the course has morphed into an effort to introduce students to law as a self-referencing system with its own particular structures, premises, constraints and language, with its own logic and taboos and its own means of understanding the world. That systemicity (cf. Peter Checkland, Systems Thinking, Systems Practice, Chichester : John Wiley and Sons Ltd, 1999) is then a critical element in the way in which the legal system (in this case of the United States) interacts with the world, both as a legal and as a socio-economic-political actor. The course has also expanded from its original narrow and technical focus, to a broader focus on principles and the use of language and logic to build and operate a system of law. That broadening has made it possible to offer the course not just to first year law students, but also to graduate students in the social sciences and in international affairs, as a grounding in the legal systems that are important in their respective fields.

This and the posts that follow produces some of the materials I will be presenting to the class. I offer these materials in hopes that they may prove of use and that you might share comments, perspectives and suggestions as I develop those materials on this site. Thanks.

This post includes a draft of the first chapter of Part III (Institutional Architecture of Law and Governance: The United States and Law Making) -- Chapter 12 (The General Government; Separation of Powers and Checks and Balances).