Passing this along for those interested:
|
|
|
Monday, June 30, 2025
Just Published: Telos 211 (Summer 2025): Dispatches from the Culture Wars
University of Seattle School of Law 3rd Annual Supreme Court Rapid Response Webinar: Trump v, Casa
I am delighted to pass along a message from the marvelous Tony Varona, Dean and Professor of Law at Seattle University School of Law of an event that may be of interest:
I write with a reminder that our third annual Supreme Court Rapid Response Webinar will be tomorrow, Monday, at 10 am PT/1 pm ET on Friday’s decision in Trump v. CASA – the controversial and impactful birthright citizenship case. We have assembled some of the nation’s top experts in law and history – several who are members of our Minority Groups Section/Listserv – to discuss the case and its various effects on immigration law, federal courts, administrative law, the role of the judiciary, and other important topics. These annual Supreme Court Rapid Response Webinars have attracted thousands of participants from across the country, and attracted positive and useful media coverage to the webinars’ topics. Please join us, and share this message with interested colleagues and students who may not be on the listservs. All are welcome, and the webinar is free.
To access the webinar, please click here: https://lnkd.in/g9PWRuYT
The Supreme Court's slip opinion may be accessed HERE and may be accessed below. My own reflections follow later.
Sunday, June 29, 2025
IFI Conditionality Matures and Perhaps Withers: A View From Uganda
 |
| Pix credit here |
There was a time when universal convergence of core principles was within sight. A complex of international institutions, interlinked with a tightening network of global trade, all tied together by a rising cadre of functionally differentiated techno-bureaucrats embedded within the institutional organs of critical institutions in public and private life appeared to make the forward movement along the Globalization Path unavoidable. A significant element in this convergence movement was the emphasis on capacity building, and guidance, by the representatives of global convergence especially within developing states. Capacity building had a social and a financial dimension. It required resources, and it required training--that is the naturalization of the outlooks and cognitive baselines necessary to the cultivation of ideological solitary necessary to project capacity as a normative as well as a technical object.
IFIs became an important instrument in this effort. And a fundamental element of convergence capacity building was an alignment to what IFI's do--lend money and protect their interests in the financial capacity of the borrower and the fulfillment of the purposes toward which funds were made available. IFI conditionality became a "thing", and then it acquired breadth and depth, and then it also acquired a smoldering resentment among borrowers who began t find it hard to distinguish between IFI conditionality guidance and control with that of former hierarchs. Resistance resulted--and not just the usual heroic performance of the3 theater of anti-domination mass agitators. That resistance acquired more than rhetorical utility as the conceptual structs of the old system of convergence struts gave way ironically because of the temporal convergence of a number of factots that had been simmering for a while, including but not limited to cultural revolution in OECD States, a resurgence of more traditional sovereignty-nationalism in the Global South, and the rise of alternative universal systems.
It is on this context, then, that one might begin to see cracks in the authority of conditionality, and the power of IFIs to more or less effectively use them to achieve their goals. Among these cracks, and one that ought to matter to elites in the liberal democratic center whose views tend to drive these things, is Uganda.
On June 5, 2025, the World Bank resumed lending to Uganda, ending a two year suspension triggered by the Anti-Homosexuality Act (AHA) of 2023. The Bank cited "mitigation measures" intended to protect marginalised groups. Ironically, Uganda has not repealed AHA, and the appeal against it remains stalled. This isn't progress; it's surrender in slow motion. The World Bank blinked, revealing the crumbling foundation of conditionality, the once powerful notion that global financial institutions could influence domestic policy through aid. . . . (Mark Umona, Uganda, World Bank and the quiet collapse of conditionality, Monitor (Uganda) 23 June 2025).
The full reporting may be accessed here; the future of conditionality remains to be seen. Perhaps conditionality shopping, rather than the end of conditionality, will become normalized--as AIIB and IMF/World Bank diverge, at least to some extent, and new IFIs or IFI substitutes with a "mission" emerge. Very grateful to my former student Jonathan Kiwana for bringing this to my attention.
Barne- og familiedepartementet: Evaluering av åpenhetsloven (Evalueringsrapport 26. juni 2025) [Norway Ministry of Children and Family: Evaluation of the Transparency Act (Evaluation report June 26, 2025)]
the legalization of Human rights due diligence systems has been a matter of significant debate and action within Europe from the 2nd decade of this century. And it has produced some legislative programs. The French and German versions are well known (see essays here). The Norwegian version less so. But the need to show (scientifically) that these are good things (however good is evaluated) remains at or near the top of the agenda of its advocates. And rightly so, especially given the intensity (and at least partial success) of counter efforts (see, e.g. Simplification: Council agrees position on sustainability reporting and due diligence requirements to boost EU competitivenes).
It is in that context that Norway's Ministry of Children and Family (Barne- og familiedepartementet) published its report: Barne- og familiedepartementet: Evaluering av åpenhetsloven (Evalueringsrapport 26. juni 2025) [Norway Ministry of Children and Family: Evaluation of the Transparency Act (Evaluation report June 26, 2025)]. The 26 June 2025 Press Release nicely summarized its scope and point:
The Transparency Act is intended to contribute to a responsible business sector and ensure that consumers have information about how businesses safeguard fundamental human rights and decent working conditions. The Ministry of Children and Family has now conducted an evaluation of the act. The Transparency Act entered into force on July 1, 2022. It requires that larger businesses, among other things, conduct due diligence assessments to promote respect for fundamental human rights and decent working conditions. – As Minister for Consumer Affairs, I am concerned that consumers should be able to make sustainable choices. By setting requirements for ethical production, consumers can contribute to a more responsible business sector. Although it is early to evaluate a law after a couple of years, the evaluation nevertheless gives us an important insight into the experiences that businesses, consumers, organizations and others have had so far, says Minister for Children and Family Affairs Lene Vågslid (Labour Party). The evaluation shows that consumers are concerned about ethical production of goods, but that they do not consider themselves informed about these matters. Consumers' knowledge of the Transparency Act is low. From the perspective of businesses, the evaluation shows that the act has contributed to increased attention to and more systematic work with due diligence assessments. Businesses report better internal anchoring of the work with responsible business, and experience the act as largely clear and feasible. At the same time, businesses also experience challenges with the act. Increased administrative work is pointed out, both in the form of reporting and responses to questionnaires. There is also a desire for more guidance. – The Transparency Act should not be a reporting act, but a law that sets requirements for actual work to promote human rights and good working conditions. The fact that businesses experience more administrative work is something we take seriously and will continue to work on in the future. It should be a competitive advantage, not a disadvantage, for businesses to work well with due diligence assessments. We also see that we need to reach consumers better with information, says Vågslid. The evaluation report is based on knowledge obtained through various external reports, written input and input meetings with a wide range of stakeholders. The findings in the evaluation report will be an important knowledge base for further work on possible regulatory changes to the Transparency Act.
The Press Release in the original Norwegian and English follow below. The Report may be accessed (in Norwegian) HERE. The Report Table of Contents (Innhold) and its Introduction may be found below in the original Norwegian and in a crude English translaiton.
Beyond the Hong Kong National Security Law: Situating Ma Chun Man (馬俊文) v. Commissioner of Correctional Services CACV 4/2025, [2025] HKCA 585 in Global Conversaitons on Law as the Administration of Discretion and Political Judgment
 |
| Pix credit here; also China Daily here |
It has become fashionable to speak of law--and the courts through which they are sometimes administered, as well as the more general, aspirational, and sometimes magically formulaic conception of "Rule of Law"-- the way it was once fashionable to speak of physics, and perhaps as well of jurisprudence (the science of law's nature). That "speaking" (however it is that one engages in speech acts these days) starts from the iron principle of "L"aw as a set of invariable rule/principles (whether expressed or not in any specific form) that are in or serve as the manifestation, or as the expression, of some sort of higher nature (sometimes though not always human nature) which, except for the interference of those who would thwart its operation, would inevitably and flawlessly operate in ways that produce what nature or the natural might judge (assuming any interest in a specific matter on Nature's part) as just, correct, right.
This understanding of law is tied to an equally ancient notion of justice (for example from Justinian's Institutes as "the set and constant purpose which gives to every man his due") as always lawful (full of or expressed within law) in the sense that (1) justice (what one is due) follows the law (as the expression of a perfect alignment between the ideal and its representation in social relations), and that (2) following the law is natural (in the sense of the fixity of its character), and that (3) the natural is inescapable (in the sense that things and events follow the law to which they are bound), and that (3) the great struggle of humanity is to "return to" or "attain alignment with" to this "state of nature" (and yes I am deliberately inverting its sense from generative theories of Anglo-American political theory from the time of the English religious-political wars of the 16-17th centuries), and that (4) this struggle is undertaken through a rigorous and scientific process of discovery, rationalization, and internalization of the fundamentals of nature (stability, prosperity, peace, human autonomy and self-actualization, human collectivity and collective actualization, the nation, the person, the reception of instruction in these matters from an external divinity or from the clues left through observation of what occurs, has occurred and is occurring, or as the culmination of desire form generation to generation or person/collective to person/collective--it doesn't really matter except to those who embrace them); and that (5) their manifestation in those rules through which the state of nature can be maintained or achieved is undertaken through law as text or expression; and that (6) those texts are bound up in and as the institutions of humanity charged with their elaboration, perfection and administration; and that (7) it is in those spaces that humanity both evidences its own flaws and imperfection, and yet strives to develop subsystems of correction for the detection and correction, from time to time, of the imperfect relationship between human expressions of law their administration, and their application in specific instances; and that (8) therefore all law may be understood as a textualized rationalization of administrative discretion divided within an apparatus built for managing and directing human behaviors singly and collective.
That, at any rate, is a theory; a cognitive baseline, around which human institutional behavior may be understood, and, perhaps, judged.
And it is a theory a part of the expression of which was considered and elaborated in the quite interesting (I use that term in its neutral sense) of the judges of the High Court of the Hong Kong SAR in Ma Chun Man (馬俊文) v. Commissioner of Correctional Services CACV 4/2025, [2025] HKCA 585. The High Court summarized the core issues well (¶¶ 2-5):
This appeal concerns the decision made by the Commissioner of Correctional Services (“the Commissioner”) dated 25 March 2024 of not referring the applicant’s case to the Post-Release Supervision Board (“the Supervision Board”) for consideration of early release under section 6(3A) of the Post-Release Supervision of Prisoners Ordinance (“PRSPO”) (“the Decision”). In the Amended Form 86, the applicant contends that section 6(3A) of the PRSPO and rule 69(1A) of the Prison Rules(“PR”), which were introduced by the Safeguarding National Security Ordinance (“SNSO”) on 23 March 2024, are unconstitutional, contrary to various articles of the Basic Law and the Hong Kong Bill of Rights (“BOR”). He further complains that the Decision (1) is in breach of his legitimate expectation that an early release would be granted subject to disciplinary penalties;[9] (2) is tainted by procedural unfairness, (3) is Wednesbury unreasonable and entails a breach of the Commissioner’s Tameside duty;and (4) is irrational and disproportionate. The Judge granted leave to apply for judicial review on the ground of procedural unfairness only but dismissed the judicial review after considering the evidence and the parties’ submissions. He refused to grant leave on other grounds, finding that none of them is reasonably arguable. Before us, the applicant limits the constitutional challenge to section 6(3A) of the PRSPO only. The contention now advanced is that it infringes his right to liberty in breach of article 5(1) of the BOR (“BOR 5(1)”) because it falls foul of the “established by law” requirement. He maintains his complaints that the Decision is tainted by procedural unfairness and in breach of his legitimate expectation.The judgement was equally clear.
First, the Court re-enforced its judgment that early release was entirely a matter of discretion vested in the Commissioner. That is set out mostly at text (¶¶ 39-43; 46) the key points of which might be these (with my emphasis) added:
C7. Early release not a right but discretion: 39. It is well-established that early release on supervision is not a sentence as such but a measure of executing a sentence. The former involves the court’s exercising its judicial power in its sentencing jurisdiction. The latter involves executive clemency, as a form of justified non-judicial intervention in appropriate cases to pursue legitimate policy aims, to encourage rehabilitation and re-integration into society of offenders who have been sufficiently punished and who no longer continue to be a risk to the public. * * * It is entirely a matter of the executive’s discretion and, in the present context, to be exercised by the Supervision Board under the PRSPO scheme. 40. As a form of indulgence, the executive clemency to grant early release does not confer on a prisoner any right or automatic entitlement to early release or remission upon serving two-thirds of the actual term of his sentence. * * * .
D. The PR scheme: 41. For completeness, the scheme of remission of sentence may be briefly described thus. It is contained in rule 69 of the PR. 42. Under sub-rule (1), a prisoner serving a sentence of imprisonment of an actual term of more than 1 month may be granted remission in accordance with rule 69 on the ground of his industry and good conduct. * * * [B]efore the addition of an offence endangering national security to Schedule 1 of the PRSPO on 23 March 2024, rule 69 did not apply to an OENS PIC such as the applicant. Thereafter, it does only if section 7(3) of the PRSPO is triggered.
43. Similar to the PRSPO scheme after the enactment of SNSO, an OENS PIC is treated differently: “69. Remission of sentence … (1A) However, if a prisoner serves a sentence in respect of the prisoner’s conviction of an offence endangering national security, the prisoner must not be granted remission under subrule (1) unless the Commissioner is satisfied that the prisoner’s being granted remission will not be contrary to the interests of national security. * * * (1C) If a prisoner is not granted remission because of a decision made by the Commissioner under subsection (1A), the Commissioner must, after making the decision, review the decision annually. ” * * * 46. Like an early release on supervision under the PRSPO scheme, remission is a measure of executing a sentence. It is entirely a matter of executive discretion which does not confer any right or entitlement on a prisoner to be released upon serving two-thirds of his sentence.
And yet the Court's generalization is not entirely correct by the Court's own terms. The Court itself recognized that both the granting of the Commissioner's discretionary authority, and the manner of its exercise were intimately bounded by law:
"45. Similar to an assessment under sections 6(3A) to (3C) of the PRSPO, in making a decision under sub-rule (3), the Commissioner carries out an evaluative and predictive assessment according to all the relevant information available to determine if remission to the OENS PIC would or would not be contrary to the interests of national security. Since in making that decision the Commissioner has a duty to safeguard national security, he must regard national security as the most important factor, and give appropriate consideration to it accordingly, as required by section 8(3) of the SNSO.The question in these cases, as one is beginning to see, in cases of the exercise of administrative discretion worldwide, is not whether the official may make the discretionary decision--but whether that decision was made under law. And that determination consists of two determinations: (1) whether the exercise of discretion was one vested in the official by law, and (2) whether the exercise of discretion was undertaken lawfully (that is in the manner prescribed by law). One might imagine that had the Commissioner asked a Tarot Card (with no offense meant to those practitioners skilled in this art) reader to make an assessment if the national security risk of the petitioner, that the judges of the High Court might have been moved to consider whether the Commissioner abused his authority. On the other hand, perhaps a Tarot Card reading meets the criteria of evaluative and predictive assessment within the meaning of the previsions. That question may be resolved sometime in the future. And, indeed, there may be much space for development in the Hong Kong SAR of codification of rules of public misconduct (e.g., Sin Kam Wah v HKSAR (2005) 8 HKCFAR 192) into rules of abuse of discretion beyond the ancient application to corruption. One might imagine a scheme in which it is possible to understand corruption to the integrity and public working of the Chinese rule of law system as itself a serious element of corruption and within an offense. But that lies well into the future when it comes to official misconduct under law. And that brings us back to the image with which this post starts--that of Tang Dynasty Judge Di Renjie. In a system where discretionary decision making gives expression to the law, the corruption of officials becomes an increasingly important responsibility for the judge who must see to it that the law is properly applied by officials.
 |
| Pix credit here |
The Court, following counsel's lead, took the point up this way--by considering the petitioner's argumen that "As required by BOR 5(1), the applicant’s right to liberty can only be deprived on such grounds as established by law. However, the threshold in section 6(3A) of the PRSPO based on the interests of national security falls foul of the “established by law” requirement." (Ma Chun Man, supra, ¶49).
In developing his argument, Mr Kwan contends that the fatal flaw in the definition of “national security” in section 4 of the SNSO, applicable to section 6(3A), is that it relies on the statutory definition of national security alone to satisfy the “established by law” requirement. It does not have any other safeguards. It requires no prior judicial supervision. It does not involve assessment by an independent board with professional or lay members such as the Assessment Board. It does not state on what basis and evidential threshold must the Commissioner be satisfied that any early release of prisoner will not be contrary to the interests of national security. It does not have any internal review or appeal mechanism.(Ibid., ¶63).
The Court opined that the definition of national security " is broad but not inherently vague or arbitrary as complained" (Ibid., ¶ 66). More importantly, it sketched, if only abstractly, the outer parameters of the constraints against which abuse of discretion (or public official misconduct) might be brought:
68. Lastly, contrary to Mr Kwan’s submissions, the definition in section 4 entails evaluations and assessments based on relevant facts and information objectively available. The result is not as subjective, arbitrary or capricious as contended. * * * 70. Take prior judicial scrutiny first. It is axiomatic that the executive, and not the court, is constitutionally tasked with the responsibility for assessing and addressing risks to national security. The executive, and not the court, is also the best institution to carry out the evaluative and predictive assessment on national security. For it has the requisite experience, expertise, resources and access to information and intelligence for the exercise. See Secretary for Justice v Persons Conducting in Acts Prohibited Etc (274/2023, 303/2023) (Use of Protest Song) [2024] 3 HKLRD 32, per Poon CJHC at [52]. For these reasons, there is nothing objectionable not to engage any prior judicial scrutiny for the assessment under section 6(3A). 71. Turning to an independent board, as we understand his submissions, in drawing the comparison with the Supervision Board, Mr Kwan seems to have suggested that the Assessment Board should also include judges, legal professional and lay members. However, as seen, the executive is the only authority qualified to carry out the assessment on national security. Those suggested non-government individuals lack the requisite expertise or experience to do so. Not including them in the Assessment Board is quite understandable. 72. The complaint about lack of basis and evidential burden for the assessment ignores the nature of the evaluative and predictive assessment on national security. In terms of basis, the Commissioner must take into account all the relevant information in carrying out the assessment. Further, as is well-settled, such an assessment does not engage any evidential burden as such: Secretary of State for the Home Department v Rehman, per Lord Steyn at [29]. 73. Finally, on review, section 6(3C) of the PRSPO does in fact require the Commissioner to carry out a review of his decision of non-referral under section 6(3A) annually. Mr Kwan again seems to have suggested that the review should be done by an independent board consisting of non-government members like the Supervision Board. However, that suggestion cannot stand for the reasons set out at [71] above. Moreover, if aggrieved, an OENS PIC may apply for judicial review against the Commissioner’s decision provided that he can bring his case within the permissible parameters for so doing: see generally Secretary for Justice v Persons Conducting in Acts Prohibited Etc (274/2023, 303/2023) (Use of Protest Song), supra, at [59] – [61]. That would provide a useful check over any arbitrary exercise of the power by the Commissioner.
Pix credit here
This is a high bar indeed, especially if the HKSAR Courts defer to the assessment of evidence by officials and defer as well to the choices made about which evidence to include and exclude in such assessments. The reference to the deference standards in Secretary for Justice v Persons Conducting in Acts Prohibited Etc (274/2023, 303/2023) reinforce the deference standard and now clearly apply it broadly to all aspects of all areas touched ny the National Security Law.
As a general matter, and with varying degrees of where the deference line is drawn, that is not unique to HK or as a basis for creating a system of protection of discretionary decisions of officials (eg here)--these officials are free to be wrong, or rather to make less than the perfect judgement, as an absolute matter and protected in their right to make bad as well as good decisions--because the law shifts the risks (and burdens/benefits) of a large amount of administrative incompetence (and competence to be sure) onto the objects of judgment. That is also fairly common--and it is certainly the basis for the enterprise of judging as well. The only question--and it is the perennial question--is the outer boundaries of the tolerance of imperfection. Sometimes that is clothed in the language of plausibility--that is that a decision is plausibility based on a minimally satisfactory gathering of evidence and reasoning. But it does tend to hide (and at the borders protect or encourage) incompetence--or worse--something that systems have long determined is worth bearing collectively, for some version of the greater good.
In this case, of course, HKSAR has an alternative should it choose to value, for reasons inherent in its own system and from its own political values, some disciplinary element in the assessment of administrative decisions. It is one that the Court itself appeared to hint at. The burden here, to protect against incompetence, or worse, and to ensure the proper functioning of the law through exercises of discretion by officials rests not with the courts but with the Executive to which the courts now defer. It is to the system of discipline, inspection and supervision that it may be that an aggrieved individual must protest. And yet that is something for the future--perhaps the near future--for the HKSAR. Still, the forms and practices of inspection and supervision are not unknown (eg here). It may be time for Hing Kong, within its own systemic parameters, to develop a robust variation of the model offered by China's Central Commission for Discipline Inspection (CCDI), one where corruption might be understood to include abuse of administrative authority, and discipline might be extended to performance discipline and supervision, with a facility for citizen complaints.
We end back where we started--the necessary disjunction between the aspirational perfection of the idea of law and its incarnation in humans and human institutions, and its reality that reflects and is embedded in all things human. Perhaps the machines and silicon based intelligence is the way to resolve this fundamental contradiction between aspiration and capacity, that is between what our nature aspires to and what it is capable of (see a much longer theoretical discussion here). Certainly the move to smart cities, smart courts, and perhaps smarter humans points in that direction. And yet all things touched by the human are also touched (and sometimes animated by) the human spirit. This case suggests the way that this human spirit finds itself embedded in the great human machinery in which aspiration are molded into reality.
The full text of the opinion in Ma Chun Man v. Commissioner of Correctional Services CACV 4/2025, [2025] HKCA 585 follows below.
Thursday, June 26, 2025
Call for Proposals: "Research Roundtable on Law and the Allocation of Risk" Law & Economics Center, George Masin University
I am happy to share the announcement that the Henry G. Manne Program in Law & Economics Studies, a division of the Law & Economics Center at George Mason University Antonin Scalia Law School, invites paper proposals for the Research Roundtable on Law and the Allocation of Risk.The Announcement explains:
This roundtable explores the challenges of managing and allocating risk within legal frameworks, particularly focusing on the tension between compensating victims and deterring harmful behavior. This tension is well-known in the insurance context as the "insurance-deterrence tradeoff," but it extends across various areas of law and risk management. As risk landscapes evolve, legal systems face increasing complexity in balancing these objectives, requiring innovative approaches to risk management and allocation.A non-exhaustive list of potential topics includes (1)Insurance and Risk Allocation; (2) Public Sector Risk Management; (3) Behavioral Barriers to Optimal Deterrence and Compensation; (4) Catastrophic Risk;
(5) Climate Risk and Property Insurance; and (6) Quantifying Non-Monetary Harms.
Details follow below. The Call for Propisals may be accessed HERE. The Roundtable FAQs may be accessed HERE.
Tuesday, June 24, 2025
Changhao Wei and Ying Sun, "Why Did China Amend Its Law Governing Delegates to People’s Congresses?" and 習近平在慶祝全國人民代表大會成立六十周年大會上的講話 [Xi Jinping, Speech at the meeting celebrating the 60th anniversary of the founding of the National People's Congress]]
 |
| Pix credit Qiushi here (1st Session of the NPC 1964) |
Changhao Wei and Ying Sun, recently published a quite useful article: "Why Did China Amend Its Law Governing Delegates to People’s Congresses?" (The Diplomat 10 April 2025). The institution of peoples congresses, like other institutions in China, change with the times and reflect the Basic Line of the vanguard Communist Party as it formulates policies for implementing Marxist-Leninism in every stage of historical development of the nation. Wei and Sun provide a powerful description of that evolution in this portion of the historical development of China in its present "new era."
In recent years, the Chinese Communist Party (CCP) under General Secretary Xi Jinping has directed – and the people’s congresses have experimented with – various reforms, both procedural and institutional, to improve “delegates-related work,” though the specifics vary across jurisdictions. The overall goal is to make sure that delegates can – and do, in fact – effectively discharge their representative duties within politically acceptable bounds. Last month’s Delegates Law amendments codified many of those reforms, thereby both placing them on a strong legal footing and upgrading them to statutory requirements that apply nationwide. We highlight a few in this article. (Wei and Sun, "Why Did China Amend Its Law Governing Delegates to People’s Congresses?").Wei and Sun make several important points. The first touches on the cultures of responsiveness of NPC delegates within the parameters of the political system. The second is the role that NPC delegates play both in giving effect to the overall leadership of the Communist Party of China, and as a key element of the recently elaborated whole process people's democracy (for discussion on WPPD see, e.g. here). The alignment of the two gives efforts at elaborating a structure of Chinese socialist democracy its contemporary character. The third touches on the way in which delegates contributes to the four organs theory of the NPC system (which Wei and Sun nicely summarize)--as political organs [政治机关] responsive to CPC guidance and leadership, as that conscientiously adhere to the leadership of the CPC; as state organs [国家权力机关] that give effect to the administrative elaboration of political policy and direction; as mass line organs [工作机关] that give effect to the core policy of people being the masters of the state; and as representative [代表机关] that undertake the duties vested in them by the State Constitution in their function as organs of popular power. Wei and Sun also do an excellent job of describing the nature and fiction of the two contacts principle around which delegate duty may be elaborated--that state organs must maintain close contact with NPC delegates and that NPC delegates must maintain close contacts with the people. This principle is hardened into a set of rules. These rules, in turn, become part of a function of performance measures against which delegate 's work is measured. "The Delegates Law has long required directly elected delegates to keep the voters informed of their work and obligated the delegates’ supervisory bodies to organize regular briefing sessions with their constituents. The amendments not only extended the reporting obligation to cover all delegates (however selected), but also tasked their supervisory bodies with “keeping records on their performance of duties” and “disclosing delegates’ basic information and performance information to the public.”" (Wei and Sun, "Why Did China Amend Its Law Governing Delegates to People’s Congresses?").
For those seeking an excellent summary of NPC reforms the article is worth a read. It may be accessed in the original HERE, and follows below.
For those seeking to delve a little deeper into the theoretical basis of these reforms, it may be worth considering an official English translation (published 2020 from the Chinese version published in 2019 No. 18) of Xi Jinping, Speech at the Ceremony Marking the 60th Anniversary of the National People's Congress (5 September 2014) and published in Qiushi and available online HERE. It is edited from the original Chinese version which also follows below. The General Secretary laid out the pathways to reform that have appeared with regularity over the last decade, and the conceptual structures under which such reform is undertaken.
A country's political system is determined by and reacts to its economic and social foundations. Among all of a country's various institutions, its political system plays the key role. Therefore, to boost confidence in the system of socialism with Chinese characteristics, we must first boost our confidence in the Chinese socialist political system, and enhance our confidence and determination in following the Chinese socialist path of political advancement. [一個國家的政治制度決定於這個國家的經濟社會基礎，同時又反作用於這個國家的經濟社會基礎，乃至於起到決定性作用。在一個國家的各種制度中，政治制度處於關鍵環節。所以，堅定中國特色社會主義制度自信，首先要堅定對中國特色社會主義政治制度的自信，增強走中國特色社會主義政治發展道路的信心和決心。]
* * *
Developing socialist democracy is an essential part of our efforts to modernize China's governance system and governance capacity. The overall goal of comprehensively furthering reform, which was set at the Third Plenary Session of the 18th CPC Central Committee, is comprised of two parts: improving and developing the system of socialism with Chinese characteristics, and modernizing China's governance system and capacity. The first part designates the fundamental orientation, which is the path of socialism with Chinese characteristics and no other path. The second part makes clear the direction we will take to improve and develop the system of socialism with Chinese characteristics under the guidance of this fundamental orientation. Together the two parts constitute a whole. [發展社會主義民主政治，是推進國家治理體系和治理能力現代化的題中應有之義。黨的十八屆三中全會提出的全面深化改革總目標，是兩句話組成的一個整體，即完善和發展中國特色社會主義制度、推進國家治理體系和治理能力現代化。前一句規定了根本方向，我們的方向就是中國特色社會主義道路，而不是其他什麼道路。后一句規定了在根本方向指引下完善和發展中國特色社會主義制度的鮮明指向。兩句話都講，才是完整的。]
The key to developing socialist democracy is to increase and expand our strengths and unique qualities, rather than weaken and reduce them. We must uphold the core role of the Party in exercising overall leadership and coordinating overall initiatives, enhance its capacity to govern in a scientific, democratic, and law-based manner, and ensure that the Party leads the people in governing the country effectively, so as to prevent the Chinese people from becoming aimless like a ship with nobody at the helm or divided like a heap of loose sand. We must uphold the principle that all power in the country belongs to the people, guaranteeing not only law-based democratic elections but also law-based democratic decision-making, democratic management, and democratic supervision, so as to avoid the phenomenon of politicians making wild promises in the elections process that they are unable to deliver later on. We must uphold and improve the system of multi-party cooperation and political consultation under the leadership of the CPC, and strengthen cooperation and coordination of various social forces, so as to avoid factional strife between different political parties. We must uphold and improve the system of regional ethnic autonomy, consolidate socialist ethnic relations of equality, solidarity, mutual assistance, and harmony, and enable people of all ethnic groups to live together happily, work together for a common cause, and develop in harmony, so as to guard against estrangement and conflict between ethnic groups. We must uphold and improve the system of community-level self-governance, develop community-level democracy, and ensure that the people directly exercise their democratic rights in accordance with the law, so as to prevent the emergence of a situation in which the people have nominal but not real power. We must uphold and improve the system and principles of democratic centralism, urging various state organs to become more capable and efficient, enhance coordination and cooperation, and form strong synergy in national governance, so that they do not hold each other back or waste valuable energy on quibbling with each other. [發展社會主義民主政治，關鍵是要增加和擴大我們的優勢和特點，而不是要削弱和縮小我們的優勢和特點。我們要堅持發揮黨總攬全局、協調各方的領導核心作用，提高黨科學執政、民主執政、依法執政水平，保証黨領導人民有效治理國家，切實防止出現群龍無首、一盤散沙的現象。我們要堅持國家一切權力屬於人民，既保証人民依法實行民主選舉，也保証人民依法實行民主決策、民主管理、民主監督，切實防止出現選舉時漫天許諾、選舉后無人過問的現象。我們要堅持和完善中國共產黨領導的多黨合作和政治協商制度，加強社會各種力量的合作協調，切實防止出現黨爭紛沓、相互傾軋的現象。我們要堅持和完善民族區域自治制度，鞏固平等團結互助和諧的社會主義民族關系，促進各民族和睦相處、和衷共濟、和諧發展，切實防止出現民族隔閡、民族沖突的現象。我們要堅持和完善基層群眾自治制度，發展基層民主，保障人民依法直接行使民主權利，切實防止出現人民形式上有權、實際上無權的現象。我們要堅持和完善民主集中制的制度和原則，促使各類國家機關提高能力和效率、增進協調和配合，形成治國理政的強大合力，切實防止出現相互掣肘、內耗嚴重的現象。]
Wei and Sun provide an excellent analysis of the way on which these conceptual structures now manifest themselves in the latest set of reforms in the NPC system.
CfP (Convocatoria) for Dossier No. 38--Iuris Dictio Journal: Acceso a la Justicia y Equidad: Nuevas Perspectivas Jurídicas e Interdisciplinarias para la Inclusión de Personas en Situación de Vulnerabilidad [Access to Justice and Equality: New Legal and Interdisciplinary Perspectives on the Inclusion of People in Vulnerable Situations]
I am delighted to pass along this CfP (Convocatoria) for Dossier No. 38--Iuris Dictio Journal: Acceso a la Justicia y Equidad: Nuevas Perspectivas Jurídicas e Interdisciplinarias para la Inclusión de Personas en Situación de Vulnerabilidad. In English here: Access to Justice and Equality: New Legal and Interdisciplinary Perspectives on the Inclusion of People in Vulnerable Situations.
The Iuris Dictio Journal invites researchers and specialists in Law, Human Rights, Legal Sociology, Social Work, Psychology, Political Science and related areas to submit their articles for consideration as part of Dossier No. 38 of the review, which will be published in June 2026 and will address access to justice and equality from new legal and interdisciplinary perspectives focused on the inclusion of people in vulnerable situations. In the last few years, systems of justice in Latin America, particularly in Ecuador, have shown with growing clarity their structural weaknesses in assuring true, equal, indiscriminate access to all people, especially those who belong to historically excluded groups or who are in vulnerable conditions. While changes focused on strengthening human rights and the democratization of justice have been promoted, these advancements still coexist with socioeconomic, cultural and territorial barriers that further exclusion and inequality in the actual practice of law. For example, in rural areas of Ecuador, the limited presence of legal institutions and the scarcity of public defenders create obstacles to the effective practice of legal access. * * * In the face of this scenario, it is fundamental to promote a critical and interdisciplinary view that articulates a legal analysis with input from sociology, anthropology, psychology, social work, education and public health, among other fields. The idea is to explore paths that rethink the access to justice from an intersectional perspective that recognizes the diversity of experiences and contexts, and which advances towards a truly inclusive model of justice that is participatory and centered on human dignity.
La revista Iuris Dictio invita a investigadores y especialistas en Derecho, Derechos Humanos, Sociología Jurídica, Trabajo Social, Psicología, Ciencia Política y áreas afines a enviar sus artículos para ser considerados como parte del Dossier Nº 38 de la revista, que será publicado en junio de 2026 y que versará sobre el acceso a la justicia y la equidad desde nuevas perspectivas jurídicas e interdisciplinarias orientadas a la inclusión de personas en situación de vulnerabilidad. En los últimos años, los sistemas de justicia en América Latina, y de forma particular en Ecuador, han mostrado con creciente nitidez sus debilidades estructurales para asegurar un acceso real, equitativo y sin discriminación a todas las personas, especialmente a quienes pertenecen a grupos históricamente excluidos o en condiciones de vulnerabilidad. Si bien se han promovido cambios orientadas a fortalecer los derechos humanos y la democratización de la justicia, estos avances aún conviven con barreras socioeconómicas, culturales y territoriales que profundizan la exclusión y la desigualdad en el ejercicio real de los derechos. Por ejemplo, en zonas rurales del Ecuador, la limitada presencia de instituciones judiciales y la escasez de defensores públicos obstaculizan el ejercicio efectivo de acceder a la justicia. * * * Frente a este escenario, resulta fundamental promover una mirada crítica e interdisciplinaria que articule el análisis jurídico con aportes desde la sociología, la antropología, la psicología, el trabajo social, la educación y la salud pública, entre otros campos. Se trata de explorar caminos que permitan repensar el acceso a la justicia desde una perspectiva interseccional, que reconozca la diversidad de experiencias y contextos, y que permita avanzar hacia un modelo de justicia realmente inclusivo, participativo y centrado en la dignidad humana.
Articles may be written in English or Spanish and must be submitted by 15 December 2025.
The full CfP (English and Spanish) follows below.
Just Released and Available for Download: OMFIF's Report, "Shaking Foundations: Reserves Management in a Volatile World" (2025)
OMFIF’s Global Public Investor has tracked central bank reserve managers’ investment strategies since its inception in 2014. In the first edition of the report, we wrote ‘diversification into different sectoral and geographical categories is increasing’ owing to ‘sub-optimal returns from traditional currencies and instruments’ in a low interest rate environment. Over a decade later, this year’s GPI report shows the appetite for diversification continues. But for very different reasons. The foundations of the global economic order, underpinned by globalisation and the US dollar, are shaking. Protectionism, geopolitical tensions and volatile policy-making are becoming norms. In this environment, close to 60% of surveyed central banks are seeking to diversify their portfolios within the next two years and 96% regard US tariffs as a major geopolitical concern.Reserve managers expect to move away from dollars and towards other currencies, although this shift will be gradual. The dollar was the only currency that saw demand fall this year, while a net 16% of survey respondents intend to add to their euro holdings over the next two years. Gold is shining brightest as a diversifier and 32% of central banks expect to increase their holdings in the short term. Meanwhile, the shift towards corporate bonds and equities is likely to materialise over the next decade rather than in the next few years. This year’s report also incorporates insights from public pension and sovereign funds to understand how they are responding to new pressures. Their views paint a similar picture – more hesitance on US investments and less willingness to add risk to portfolios. In total, the GPI draws on insights from 90 official institutions with over $7tn in assets.This provides an important snapshot into how public investors at the heart of global finance are adapting to current conditions.
- 90 official institutions surveyed for the GPI 2025 report, comprising 75 central banks and 15 public pension and sovereign funds, with more than $7tn in assets combined.
- 31% of reserve managers up from just 4% last year now cite geopolitics as the top factor shaping investment decisions, with 96% of central banks flagging tariffs and trade protection as the main concern.
- While 70% of central banks are increasingly worried about the US political environment, over 80% still see the dollar as offering safety and liquidity, pointing to gradual diversification rather than rapid de-dollarisation.
- A net 16% of central banks plan to raise euro holdings – more than for any other currency while Germany ranks as the most attractive developed market among public funds.
- 32% of central banks expect to increase gold holdings in the next 12–24 months, with over 20% forecasting the price to surpass $3,500 per ounce.
- A net 28% of reserve managers aim to raise allocations to government bonds, while public funds are holding steady across asset classes amid ongoing market uncertainty.
The Table of Contents and Foreword follow below.
Saturday, June 21, 2025
Submission Drafts Posted: "The Current State and Future Trajectories of HRDD Laws: New Legal Norms on Human Rights Due Diligence" (Larry Catá Backer and Claire Methven O'Brien, eds; forthcoming)
 |
| Pix credit Larry Catá Backer Tabula se Saint Miquel (13th Century Catalonia) |
I am delighted to announce that we are able to make available a number of submission drafts of the contributors to the book, The Current State and Future Trajectories of HRDD Laws: New Legal Norms on Human Rights Due Diligence, that Claire Methven O'Brien and I are editing ,for expected publication with Routledge at the end of 2025 or beginning of 2026 (assuming everything goes smoothly.
This volume brings together some of the most innovative and forward thinking academics, practitioners, and commentators, from universities, non-governmental organizations, business, and government. Their objective, collectively, was to contribute to a deeper understanding on the emerging law of due diligence. More specifically, contributors were asked to explore, from their own perspective on the ways in which due diligence as a legal concept touches on the human rights and sustainability elements of economic activities whether undertaken by public or private organizations. In each case, and from a variety of perspectives, each of the contributors explores the rich possibilities of due diligence within the business and human rights environment. Each explores the level and forms of attentiveness (diligence) as a function of the quantity and focus requires (the diligence that is due) in a variety of context that are defined both by the legal environment in which it is embedded and the normative principles that due diligence is meant to fulfill. The structuring is important—while one cannot ask due diligence to do more than it is capable—conceptually—one can certainly exercise a judgment about the way that one applies values and societal objectives within its somewhat capacious possibilities. With that fundamental understanding of structure, form, character, possibility, and limitation, no really useful understanding of, or effective application of due diligence is possible. (Backer & O'Brien, Chapter 1, Introduction).
Foe those interested we have posted material to the book website. All materials can be accessed through the Book Project Homepage which includes information about the overall project (Introduction to the Project) and its background (Project Genesis and Background). Information, including video links may be found about the introducory workshop held in 2023 here: Workshop-Conference: The current state and future trajectories of human rights due diligence laws: New Legal Norms on Human Rights Due Diligence(6 September 2023; virtual)
Information about the book may be accessed through the link: Book: The Current State and Future Trajectories of HRDD Laws: New Legal Norms on Human Rights Due Diligence. These include Contents and Chapter Abstracts; Selected Chapter Submission Drafts; and informaiton about our extraordinary group of Contributors.
Contributions include:
Chp 1: The Current State, and Future Trajectories, of Human Rights Due Diligence Laws — Larry Catá Backer and Claire Methven O’Brien ACCESS SUBMISSION DRAFT HERE
Chp 2: Human Rights Due Diligence in the UNGPs – Larry Catá Backer ACCESS SUBMISSION DRAFT HERE
Chp 3: State Obligations and Corporate Responsibilities: The Notion of “Due Diligence” in the UN Guiding Principles on Business and Human Rights – Maria Monnheimer ACCESS SUBMISSION DRAFT HERE
Chp 4: Lessons for Human Rights Due Diligence from Due Diligence in International Environmental Law – Sara Seck ACCESS SUBMISSION DRAFT HERE
Ch.5: The Growing Relationship Between Tort Law and Human Rights Due Diligence – Carola Glinski ACCESS SUBMISSION DRAFT HERE
Chp 6: Can the French Law of Vigilance Apply to the Extraterritorial Violations of Indigenous and Human Rights? – Cannelle Lavite and Jérémie Gilbert ACCESS SUBMISSION DRAFT HERE
Chp 7: Supply Chain Due Diligence Law in Germany – Birgitte Spiesshofer ACCESS SUBMISSION DRAFT HERE
Chp 8: Mandatory HRDD in the E.U. – Claire Methven O’Brien
Chp 9: US Measures to Give Legal Effect to Human Rights Due Diligence – Rachel Chambers and Eric R. Biel
Chp 10: Horizontal Legislation: Cascading Due Diligence Through Model Contract Clauses– Susan Maslow, Patrick Miller, and David Snyder ACCESS SUBMISSION DRAFT HERE
Chp 11: What are the Lessons from Sectoral Approaches to Human Rights Due Diligence – Justine Nolan and Shelley Marshall ACCESS SUBMISSION DRAFT HERE
Chp 12: Human Rights Due Diligence and Disclosure Regimes – Rachel Chambers and Anil Yilmaz Vastardis ACCESS SUBMISSION DRAFT HERE
Chp 13: Human Rights Due Diligence and the OECD Guidelines for Multinational Enterprises on Responsible Business Conduct – Jernej Letnar Černič ACCESS SUBMISSION DRAFT HERE
Chp.14: The Corporate Sustainability Due Diligence Directive (EU) and Its Impact on Barriers to Remedy in Transnational Litigation – Lucas Roorda
Ch.15 Epilogue: Legalising Human Rights Due Diligence from the Present into an Uncertain Future — Larry Catá Backer and Claire Methven O’Brien ACCESS SUBMISSION DRAFT HERE
The Book Table of Contents (with Abstracts) and links to selected submission drafts follow below as well. Draft Frontmatter may be accessed HERE.
Friday, June 20, 2025
Newsom v. Trump, No. 25-3727 D.C. No. 3:25-cv-04870-CRB (9th Cir, slip op. 19 June 2025)--Part 4, Appellate Court Opinion
 |
| Pix credit here |
For those following the legal battle over the scope of Presidential authority to intervene in local civil disturbances, and the manner in which that may be attempted (Newsom v. Trump NO. 3:25-cv-04870-CRB (N.D.Cal.)), the 9th Circuit US Court of Appeals heard argument on 17 June 2025, on the President's challenge to the granting of a temporary restraining order against federal interference in the management of local civil disturbances in Los Angeles (Order Granting Plaintiffs' Application for Temporary Restraining Order). The federal appellate Court issued its opinion on 19 June 2025 (Newsom v. Trump, No. 25-3727 D.C. No. 3:25-cv-04870-CRB (9th Cir, slip op. 19 June 2025)), granting the stay of the TRO, which was described in this way in press reporting:
A federal appeals court on Thursday cleared the way for President Trump to keep using the National Guard to respond to immigration protests in Los Angeles, declaring that a judge in San Francisco erred last week when he ordered Mr. Trump to return control of the troops to Gov. Gavin Newsom of California. In a unanimous, 38-page ruling, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit held that the conditions in Los Angeles were sufficient for Mr. Trump to decide that he needed to take federal control of California’s National Guard and deploy it to ensure that federal immigration laws would be enforced. * * * Mr. Trump praised the decision, saying in a Truth Social post late Thursday that it supported his argument for using the National Guard “all over the United States” if local law enforcement can’t “get the job done.” Mr. Newsom, in a response on Thursday, focused on how the appeals court had rejected the Trump administration’s argument that a president’s decision to federalize the National Guard could not be reviewed by a judge.(NYT here)
As described in the reporting, there appeared to be a little positive for all actors in this litigation. The Opinion did a nice job of describing itself:
We now grant the stay. Defendants have made the required strong showing that they are likely to succeed on the merits of their appeal. We disagree with Defendants’ primary argument that the President’s decision to federalize members of the California National Guard under 10 U.S.C. § 12406 is completely insulated from judicial review. Nonetheless, we are persuaded that, under longstanding precedent interpreting the statutory predecessor to § 12406, our review of that decision must be highly deferential. Affording the President that deference, we conclude that it is likely that the President lawfully exercised his statutory authority under § 12406(3), which authorizes federalization of the National Guard when “the President is unable with the regular forces to execute the laws of the United States.” Additionally, the Secretary of Defense’s transmittal of the order to the Adjutant General of the California National Guard—who is authorized under California law to “issue all orders in the name of the Governor,” CAL. MIL. & VET. CODE § 163—likely satisfied the statute’s procedural requirement that federalization orders be issued “through” the Governor. And even if there were a procedural violation, that would not justify the scope of relief provided by the district court’s TRO. Our conclusion that it is likely that the President’s order federalizing members of the California National Guard was authorized under § 12406(3) also resolves the Tenth Amendment claim because the parties agree that the Tenth Amendment claim turns on the statutory claim. (Newson v. Trump, supra, slip op. at 2-3).
This does not resolve the case, of course. It merely denies protection pending the resolution of the merits of the case before the district court, subject to appeal. But the resolution of the TRO, given its standard of review, does provide the district court whose order was stayed, and the parties, with a substantial amount of "instruction" about the way that the appellate panel views the case and the law. It is likely that this will affect litigation strategy with respect to the development of evidence and of its presentation in narrative made compelling under a specific interpretive reading of both (1) the substance of the statutory authority invoked; and (2) the issue around intent (and the continually developing jurisprudence of (at least Presidential) abuse of discretionary authority.
 |
| Pix credit here |
That last point, perhaps is among the most lasting from this litigation. And one other--the determination by the court that it has at least some authority to hear the case and review presidential action. That is critical with respect to the interpretation of both the scope of constitutional and statutory authority that serves as a basis for Presidential action (see, e.g., slip op. at 28-30). More broadly the court also reserved to itself (as it must one would think) a role in the determination of whether the exercise of discretion in invoking an authority to act, and the way that this authority is actually deployed, "exceeded the scope" of authority--effectively built around notions of abuse of authority. "A simple definition of the abuse of power is the misuse of a position of power to take unjust advantage of individuals, organizations, or governments. . . The common element of these crimes is deceit." (here).
In this latter sense, one might perhaps be inclined to consider the extent to which the opinion appears to contribute to a principle now hardening, that is grounded on the presumption that all administrative discretionary action is reviewable by the courts, that this presumption may be set aside in very few areas (which future litigation will refine), that review of discretionary decisions are subject to a highly deferential standard, but that evidence of bad intent can overcome that deferential standard, especially where the intent has no relation to the exercise of authority (e.g., to punish political enemies, to advance personal advantage, corruption, etc. again to be refined by the courts in case specific context) but possibly grouped together around an "exceeded the scope of their statutory authority" standard (see, eg slip op. at 36). Interesting as well is the effective embrace of a well worn juridical principle that not all defects in process compliance are fatal (slip op., pp. 30-35).
 |
| Pix credit here |
The full text of the appellate court opinion may be accessed HERE.
Access
Part 4: Newsom v. Trump, No. 25-3727 D.C. No. 3:25-cv-04870-CRB (9th Cir, slip op. 19 June 2025)
CfP (Convocatoria) for Dossier No. 37--Iuris Dictio Journal: Legal Education in Latin America: Challenges and Demands (La educación jurídica en América Latina: retos y desafíos)
I am delighted to pass along this CfP for Dossier No. 37--Iuris Dictio Journal: Legal Education in Latin America: Challenges and Demands. In Spanish here: La educación jurídica en América Latina: retos y desafíos.
Iuris Dictio Law Journal invites lawyers, professors, and researchers in Legal Education and Pedagogy, as well as in related fields, to submit academic research articles to be considered for its Dossier Nº 37, to be published in June 2026. The aim of this dossier is to contribute to debate and reflect on the contemporary challenges facing legal education in Latin America. Today, education represents one of the priority areas on government agendas because the human capacities acquired through it have implications in areas such mobility and performance in the labor market. According to UNESCO guidelines, as well as the Convention against Discrimination in Education and SDG 4 of the 2030 Agenda, there are three lines of action to achieve educational inclusion: coverage, diversity, and quality. However, the implementation of public policies varies according to the level of development of countries.
La revista Iuris Dictio invita a abogados/as, docentes e investigadores/as en Educación y Pedagogía jurídica, así como en áreas afines a enviar artículos de investigación académica para ser considerados como parte del Dossier Nº 37 de la revista, que será publicado en junio de 2026 cuya pretensión es coadyuvar al debate y la reflexión sobre los retos y desafíos contemporáneos a los que se enfrenta la educación jurídica en América Latina. Hoy en día, la educación representa una de las áreas prioritarias en las agendas gubernamentales, debido a que las capacidades humanas adquiridas a través de ella tienen implicaciones en la movilidad y el desempeño en el mercado laboral. De acuerdo con las directrices de UNESCO, así como la Convención relativa a la lucha contra las discriminaciones en la esfera de la enseñanza y el ODS número 4 de la agenda 2030 existen tres líneas de acción para lograr la inclusión educativa: cobertura, diversidad y calidad. Sin embargo, la implementación de políticas públicas varía de acuerdo al grado de desarrollo de los países.
Articles may be written in English or Spanish and must be submitted by 15 December 2025.
The full CfP (English and Spanish) follows below.