Brazil, Petroleum, Ethanol and Regional Trade: U.S. Hunger is Brazil's Potential Gain

I recently wrote about Brazil’s exploitation of its global position in ethanol markets to further its global trade agenda expanding the ethanol market to the energy consumer markets in China and India and the restructuring of its trade relations with the United States), and the American willingness to encourage that agenda for its own purposes (tweaking Venezuela’s Chavez and trying to resurrect the Free Trade Areas of the Americas). Brazil, the United States, Globalization and Ethanol. Even in this context, where cooperation appears to advantage Brazil, Simon Robinson was right to comment that “I can't say that the Brazilians are particularly enamored of the prospect of the US trying to use their technology as a way of dealing with Chavez and others in Latin America.”

Robinson recently highlighted the conflicted context in which biofuel policy is being weighed. He noted in his Big Biofuels Blog the way the Inter-American Development Bank leaders are sending mixed signals about this potential partnership to expand ethanol production. On the one hand the Inter-American Bank hails the American efforts to increase biofuel consumption in Latin America (with US produced ethanol—made more efficiently with Brazilian technology), on the other hand, Luis Alberto Moreno, the Bank’s president notes that in the absence of cultivating more corn, the increased production of corn based ethanol in the United States (id.) (and sugarcane based ethanol in Brazil, will reduced arable land devoted to food production.

Two recent reports highlight these conflicts within Brazilian energy policy circles. The first, reported that a U.K. oil explorer, BG Group PLC “said the Tupi field in Brazil, which it is exploring with state-run oil firm Petrobras . . . , could contain over 10 billion barrels of oil and gas.” BG says Brazil's Tupi may be 10 bln-barrel field, Reuters (Feb. 8, 2007). Brazil continues to aggressively exploit its petroleum reserves. The second reported the signing of agreement between Brazil, Sweden and Japan that will result in a doubling of Brazil’s ethanol exports by 2010. Brazil To Double Ethanol Exports – Minister, Reuters (Feb. 5, 2007) . The Brazilian Finance Minister, Guido Mantega “said he hoped the latest round of world trade talks would help open the U.S. market to Brazil's ethanol.” He noted that “"Our costs are 50 percent lower and the quality of the energy source is higher than the ethanol made from corn (maize) in America. So we can have more co-operation with America if they open the possibility for more imports from Brazil of ethanol and other agricultural products," Mantega said.” Id.

Brazil is hedging in several ways. It continues to maximize its ability to exploit its own petroleum reserves. This serves it well as it seeks to protect itself from its brothers in Venezuela and Bolivia. It enhances economic stability and gives Brazil more leverage in its negotiations with other states. But it can also make life harder for both by cultivating its ethanol production, and the development of markets for this alternative—for which Brazil requires increasing petroleum prices. It looks like Japan and Sweden are already preparing for such a change in the relative economies of ethanol use, and the United States wants to get into the act as well.

But the Brazilians have little to fear for the moment and much to gain from the interest of the United States. Sharing technology and bringing the Americans on as partners opens U.S. markets at relatively little cost to the Brazilians—their ethanol production costs are still half that of the United States. And the potential benefits to Brazil—reduction of critically annoying tariff barriers—are great. And there is an added benefit as well, one that Simon Robinson highlighted in describing the position of the Inter American Bank—the price and availability effects of ethanol production on the food supply. For Brazil this presents an opportunity. The need to produce biofuel and food may make it possible for Brazil to reduce the international pressure to avoid exploiting the Amazon for purposes of producing both. Brazil can only profit from an arrangement in which it can induce the United States to help it exploit biofuel markets (especially in China and India) in which its production costs will remain substantially below that of the Americans for a long enough time.

Now is the time for Brazil to bargain hard for the creation of a common biofuel market between NAFTA and MERCOSUR. Free movement of fuel, especially renewable fuel, would be in Brazil’s interest. If it can be tied to general trade policy, all the better. The Americans are willing right now to pay for the privilege of disadvantaging Chavez. The Brazilians have the most to gain from this American desire. In this back and forth is a great example of the multi-level complexities of economic globalization. Rather than merely a simple bi lateral problem among Brazil and the United States, the issue of energy and energy markets touches on the construction of regional trade partnerships, the construction of private markets by public entities, the convergence of environmental and energy concerns as well as of food and energy policies, and the ways in which states, as market makers and market participants now engage in global systems.

Brazil, the United States, Globalization and Ethanol

Three stories circulating in the back pages of the international press nicely summarize the complexities of energy and environmental relationships between the United States and Brazil. This relationship is a window, generally, on the differences in outlook and approach between developed and developing states. Better put, perhaps, its suggests the fundamental conflicts of interests between states, like the United States, with mature economies, and states, like Brazil, with aggressive economic policies and growing economies.

Jose Martí and Cuban Ethnic Nostalgia for the Noble Savage

Like many people of his time, José Martí, the father of the Cuban independence movement of the 19th century, was fond of using a form of the literary trope of the “noble savage” in the service of Cuban political independence from Spain and socio/cultural independence from the United States. The “noble savage” themes were both popularized and turned to use in political theory in the 18th century by Rousseau (Jean-Jacques Rousseau, A Dissertation on the Origin and Foundation of the Inequality of Mankind (1755) (”Savage man, when he has dined, is at peace with all nature, and the friend of all his fellow-creatures. . . . . The case is quite different with man in the state of society, for whom first necessities have to be provided and then superfluities; delicacies follow next then immense wealth, then subjects, and then slaves.” Rousseau, id., Appendix). But the notion of the purity of the savage over the corruption of the civilized has a long history in the West, a culture always as fond of its sentimentalism as it has been of the civilization it enhances despite this nostalgic stance for an unencumbered past. (e.g., Ter Ellingson, The Myth of the Noble Savage. Berkeley: University of California Press, 2001).

In “El Hombre Antiguo de América y Sus Artes Primitivas”, written for the periodical, La América, April 1884 (in Conciencia Intelectual de América: Antología del Ensayo Hispanoamericano 261-264 (Carlos Ripoll, ed., New York: Eliseo Torrs & Sons, 1966)), Martí used the noble savage binary for a different political effect. Describing ancient humanity and primitive arts, Martí starts by suggesting that primitive art involved more than a love of beauty, it suggested the basic need of human communities to create and overcome (“la expresión del deseo humano de crear y de vencer” id., at 261). In this form, like its European form, art represented a passion for truth (“La pasión por la verdad fue siempre ardiente en el hombre.” Id.)). That passion for truth in arte is capable simultaneously of multiple levels of expression within any civilization (“En el espíritu del hombre están, en el espíritu de cada hombre, todas las edades de la Naturaleza” Id., at 262).

For Indian nations in America, Martí suggests, that blend of naturalism and genius expressed itself in the choice of the places for the expression of their art, choosing those priestly places of Nature (“los lugares sacerdotales de la Naturaleza” id., at 263) without disturbing the natural order. And thus a window onto the soul of the native American character—noble and impatient, with a love of adornment—which express the nomadic character, political immaturity and literature of the countries of the Americas (“y por ella lucen, y por ella pecan, el carácter movible, la política prematura y la literatura hojosa de los países americanos” id., at 263). What, Martí asks, is the nature of the intelligence of Americans if not something like a chalice open to the sun by the special privilege of Nature (“¿Qué es, sino cáliz abierto al sol por especial privilegio de la Naturaleza, la inteligencia de los americanos?” Id., at 263). Every nation (understood as ethnos rather than as demos as was common in the 19th century and increasingly common in the 21st century), Martí suggests has its own genius, but only the people of the Americas were able to clothe the natural with easy, brilliant and marvelous pomp (“sólo al hombre de América es dable en tanto grado vestir como de ropa natural la idea segura de fácil, brillate y maravillosa pompa” id).

And thus to the point: No más que pueblos en ciernes,--que ni todos los pueblos se cuajan de un mismo modo, ni bastan unos cuantos siglos para cuajar un pueblo,--no más que pueblos en bulbo eran aquéllos en que maña sutil de viejos vividores se entró el conquistador valiente, y descargó su ponderosa herrajería, lo cual fue una desdicha histórica y un crimen natural.” Id., at 264 (“Not more than nations in the making,--that neither all nations [understood here as ethnos] come into being in the same way, nor are a number of centuries enough for a people to come into being,--not more than nations still in their bulbs were those in which the valiant conquerors were brought in through by the subtle skill of ancient fortune hunters, carrying out their ponderous mechanics work, which amounted to a historical misfortune and a crime against nature.”). Thus the old European binaries—savage-civilized, advanced-barbarous, noble-savage, U.S.-Latin America—are inverted. The rape of nature and the destruction of indigenous culture are conflated. And that rape, that crime against the natural order is foundational—“los pueblos eran que no imaginaron como los hebreos a la mujer hecho de un hueso y al hombre hecho de lodo; sino a ambos nacidos a un tiempo de la semilla de la palma.” Id. at 264 (“these nations could not imagine, like the Hebrews that woman was made of a bone and that man was made out of clay, but that both were born together from the seed of a palm tree.”).

Crimes against the natural order are cultural as well as political. They implicate the foundations of the autonomy and self construction of every ethnos. Those who would violate this natural order engage in foundational criminal activity—they rob the world of its richness and diversity (“¡Robaron los conquistadores una página al Universo! Id.”). The implications for Martí naturally follow—cultural and political liberation, an necessary affirmation of the indigenous in Latin American culture, and a call for the development of that unique culture. And yet the supreme irony: from out of a European disquietude with the state of society and its aggressive advance by a man fully the creature of that culture comes a European literary/political trope in the service of the independence, broadly understood of Latin America in general and Cuba specifically. It is an easy step from the lyrical cultural naturalism of Martí’s eclogue to the nationalist post colonial rhetoric of Fidel Castro.

Odious Debt, Systemic Illegitimacy, and the Integrity of Global Financial Systems

In this short essay I will try to convince the reader that Fidel Castro of Cuba, Hugo Chavez of Venezuela, and Evo Morales of Bolivia, the current public standard bearers of fight against the current norms of economic globalization in general, and its systems of financial capital in particular, will be good for business—that is good for the business of modern so-called neo liberal global capital markets in general, and for the business of lending to sovereigns, in particular.

These ideas were presented at a marvelous conference held on January 26, 2007, at the Duke University Law School, where the Duke Journal of Law & Contemporary Problems hosted a conference on “Odious Debts and State Corruption.” That conference, conceived by Professor Mitu Gulati, one of the most authoritative writers in modern odious debt theory, brought together a remarkable group of scholars from a variety of disciplines to broaden and deepen the discourse on theories of odious debt in public and private municipal law, public and private international law and transnational law.

Wal-Mart and Economic Due Process

In the great ideological campaigns over the extent and appropriateness of governmental intervention in the economic relationships of its citizens, all combatants seek something from the state. So-called liberals, of course, seek to regulate economic entities for the purpose of redistributing income, or limiting power.1 So-called conservatives come in a variety of flavors. Some would reduce government to a boundary keeper.2 Some would use the government more affirmatively, to protect the power of economic entities to exploit capital and restrain other factors of production, notably labor, customers and lenders, in their role in the affairs of such entities. This short essay considers this latter position in the context of recent efforts by the State of Maryland to essentially regulate one enterprise—Wal-Mart—for the benefit of its competitors and other stakeholders. The use of state power for private advantage, amply demonstrated by this affair, ought to serve as a caution against any rush to embrace an ideology open to the idea of the state as a necessary active regulator of economic activity. The essay was first presented as my contribution to “A Debate on Wal-Mart and Economic Due Process,” held as part of the Ninth Annual Federalist Society Faculty Division Conference, Washington, D.C., January 5, 2007.

Global Law in American Law Schools: Prospects and Difficulties of Incorporation.

Many law schools today face the challenge of incorporating a transborder (international, comparative, transnational and foreign law) element into their curriculum. Some schools, like those of a century ago, when faced with the realities of transborder practices arising from the creation of national markets and practices within the United States, reacted by digging more deeply into their traditional state oriented curricula. And, indeed, there are law schools within the United States, that remain substantially unchanged—focusing deliberately on a curriculum limited by the territorial boundaries of the state in which they are established. Most law schools, reluctantly or not, and more or less enthusiastically, had embraced a “national law practice” model by the last third of the twentieth century. Today law schools face the same curricular challenges that they faced a century ago. But instead of confronting the challenge of a “national” practice, they confront the realities of a multi jurisdictional practice (Harold Hongju Koh, Luncheon Address (May 17, 2006), in American Law Institute Remarks and Addresses 83rd Annual Meeting, Washington, D.C. pp. 65-89).

God(s) Over Constitution

At the 2007 Annual Meeting of the Association of American Law Schools, held in Washington, D.C. January 2-6, 2007, the Section on Law and Religion sponsored a program panel—Religion, Religious Pluralism, and the Rule of Law—held on Wednesday, January 3, 2007. It was my good fortune to have been asked to participate on that panel along with an outstanding group of scholars in the field: Mark C. Modak-Truran (Mississippi College of Law), Rebecca R. French (SUNY-Buffalo), Scott C. Idelman (Marquette University Law School), Robin W. Lovin, (SMU, Perkins School of Theology), Elizabeth B. Mensch (SUNY-Buffalo), Michael Novak (American Enterprise Institute Scholar), and Steven Douglas Smith (University of San Diego School of Law).

Taxing and Spending for Religion: Of Virginia Prisoners and Kosher Diets

A federal appellate court in Virginia recently ruled that a state prisoner was denied his rights under federal law when the state refused his request for a kosher diet. Religious Land Use Law is Upheld, Richmond Times-Dispatch, Dec. 30, 2006. "Ira Madison, a Hebrew Israelite and a member of the Church of God and Saints of Christ in Suffolk, sued the state and various Department of Corrections officials in U.S. District Court in Roanoke in 2001, saying his requests for kosher meals while an inmate at the Buckingham Correctional Center were being denied. Madison argued that the state violated the federal Religious Land Use and Institutionalized Persons Act." Id.

The ruling is unremarkable except to suggest that the Taxing and Spending Power, recently thought ripe for narrowing under our new Supreme Court regime, appears to be alive and well, at least where religion is involved. As a consequence, the conservatism that brought the United States a new sensitivity to religion in state action also promises to continue to march down the path to the certain obliteration of states as a semi sovereign viable level of government in the United States and takes us one step closer to the end of the federalism experiment started by the Founders of the Republic.

Washington and Bolívar, Windows on Differences in Political Culture in the 19th Century

In a remarkable essay, the 19th century Colombian (correction Ecuadorian) author Juan Montalvo drew on the symbolic character of the germinal leaders of their respective nations--George Washington and Simon Bolivar, to sketch the fundamental distinctions between North and South American political culture. (Juan Montalvo, Los héroes de la emancipación de la raza hispanoamericana, in Siete Tratados (Paris, 1883) reproduced in Conciencia intelectual de América: antología del ensayo hispanoamericano 132-134 (Carlos Ripoll, ed., New York: Eliseo Torres, 1966). The essay is particularly relevant today as a basis for understanding the difficulty that North and South American political cultures have in harmonizing approaches to law and legal culture.

The Execution of Saddam Hussein and the Road to Global 'Higher' Common Law

Today, Saddam Hussein, former leader of Iraq, statesman, leader of the Iraqi Baath party, brutal dictator and the man who, in the name of the state and for the retention of his own power and that of his followers, ordered the death of many people, and caused the death of many others, was executed after trial by a court constituted for that purpose by his successors, the judges of which were installed with the approval and guidance of the military occupation authorities of Iraq and trained in the techniques of judging by representatives of Western judicial elites in London.