The Private Law of Public Law: Public Authorities as Shareholders, Golden Shares, Sovereign Wealth Funds, and the Public Law Element in Private Choic

I recently participated in an excellent conference hosted by Ralf Michaels. The conference was entitled The New European Choice-of-Law Revolution: Lessons for the United States? and was held at the Duke University Law School on February 9, 2008.

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I served on the panel on Corporate Law, and presented the following talk, which will serve as the introduction to the longer paper that will follow.

The Private Law of Public Law: Public Authorities as Shareholders, Golden Shares, Sovereign Wealth Funds, and the Public Law Element in Private Choice of Law


We have been asked to consider aspects of the European choice of law revolution. The revolution is both vertical—shifting power over the field from Member State to the institutions of the European Union and horizontal, shifting the basis on which conflicts are resolved among competing systems. (Symeonides 2008). That consideration is meant to be undertaken with a sensitivity to Mathias Reimann’s recent plea for more comparison in choice of law. (Reiman 2001). Yet it must also be sensitive to the antagonisms as well as the complentarity of comparative law and conflicts.

“Twenty years later, the suggestion that the interdependence of comparative and conflicts law is one between potential antagonists deserves new attention. The unification process, one of the major défi of comparatists, directly threatens the conflict of laws methodology. If uniform rules expand-- be they transnational or international rules, codified or uncodified--the whole conflicts system is trumped. If uniform rules develop to such a point that they become the major source of law, they torpedo conflict of laws.”

(Fauvarque-Cosson 2001, at 414).

We hope that this exercise will provide a basis for conversation across the Atlantic, at a minimum, and perhaps reinvigorate the field in the United States. (Reed 2001). We engage in this exercise aware of the interdependency that is a consequence of the imperatives of contemporary economic globalization and its regulatory effects. “In a globalizing world of interdependent legal systems, determining which laws apply to international private transactions is of crucial importance.” (Conference Announcement 2008).

While the object of this activity is traditionally private law generally, and international private transactions in particular, I will “look beyond the traditional topics of private law (contract, tort, property) to those areas that present the most urgent and interesting problems today.” (Reiman 2001, at 645). Thus, I will examine a different aspect of this revolution in both private law and choice of law, an aspect that has become apparent only in the last decade or so. My focus is corporate law and a species of vertical choice of law. The revolution is European, and its consequences of relevance to the United States.

The problem is deceptively simple: A person buys shares and seeks to exercise shareholder rights to pressure corporate managers to adopt policies permitted but not mandated by the law of the chartering state. What law applies if the purchaser is a natural person who is a citizen of the state in which the company is domiciled? Does a different law apply if the purchaser is a (1) legal person, or (2) the government of the chartering state, or (3) a foreign state or a group of foreign states? In each case a party acting in a private capacity is seeking to engage in a discrete transaction and to exercise their rights as shareholders to the extent permitted by law. Yet it is likely that these transactions will be treated differently—a different legal regime may apply.

I will suggest to you that the revolution in private choice of law has become complicated. In a world in which corporations act like states, in a world in which states act like corporations, private choice of law is not exclusively private any more. My focus, then, is on the complicating factor of public authorities seeking the protection and advantages of private law in their non-sovereign activities. In this respect there has been a European Revolution, to be sure, especially in the field of corporate regulation. The contemporary focus has been on the destruction of the traditional choice of law system for situs of the regulation of corporate “internal affairs” through the federalization of old horizontal choice of law regimes through a reinvigorated jurisprudence grounded in non-discrimination (art. 12 EC) and freedom of establishment (art. 43 EC) within a framework that privileges the elaboration of an internal market (art. 14 EC). (Dammann, 2005). But an emerging focus is that of the regulation of interests in companies held by states in their non-sovereign capacity—golden shares. Golden shares can be defined as a power to veto certain changes in the corporate charter. More specifically it refers either to a particular class of stock or a regulatory system that gives the state a continuing power over certain fundamental corporate decisions especially with respect to formerly state owned enterprises that have been privatized. The Reuters Financial Glossery defines “golden shares as “A share that confers sufficient voting rights in a company to maintain control and protect it from takeover. The golden share prevents potential predators from buying shares and then using them to outvote the company's existing owners.” (Reuters Financial Glossary, Golden Share, 2008).

Ironically, in the form of the developing golden share jurisprudence of the European Court of Justice, this revolution has considerable conservative tendencies, tendencies that may seek to rigidly maintain the nice, safe, traditional barriers between public and private law but which ignore changes in the realities of the character of public and private institutions. I will suggest that the new choice of law revolution requires incorporation of public authorities as private actors in a private law with public effects across borders. This is choice of law as an instrument of corporate regulation. But the regulatory function involves the use by public authorities of private law for public ends. Should public law apply, should private law apply, should the form of governmental action make a difference or does only the effect of the action determine the availability of private or pubic law as the standard for governing the actions contemplated by a state? A preliminary consideration of these complications for private choice of law that serves as the focus of this paper. The field of private choice of law is no longer a closed system positing one realm of private and another of public law and in which the state is a subject but not object of law at either the domestic or multilateral level. (Michaels 2005). Nor is private law founded necessarily on direct regulation by state actors upon receptive private actors; the meaning of regulation and jurisdiction are becoming increasingly fuzzy. (Backer 2007).

Near the end of a review of the one of the latest in the recent series of “golden share” cases decided by the European Court of Justice (Commission v. Federal Republic of Germany 2007), Peter Zumbansen and Daniel Saam wondered whether: “we would even be able to see that deep into the conundrical internal life of the corporation, while applying our shareholder/stakeholder, public/private distinctions to make sense of it all. Can it be really all that difficult to heed the insightful warnings of the past not to take such categorizations as depictions of reality, but rather to understand them as the semantic representation of difficult but deliberate choices?” Zumbansen & Saam 2007, at 1049; citing Cohen, 1927; Hale 1923; Cohen 1933; and Kennedy 1976). As Zumbansen and Saam suggest, the corporation sits at the nexus of a number of legal regimes. Issues of internal regulation of corporations that operate across borders implicate a horizontal choice of law, and touch on the power of a state to regulate the economic entities operating within its brders. (Dammann 2003). To some extent, they might also implicate vertical choice of law at the supra-national or federal level. For example, in the United States, federal securities laws may pre-empt to some extent, the power of states to regulate certain matters of corporate governance. This is particularly true with respect to state anti-takeover legislation. (CTS Corp. v. Dynamics Corp. of America 1987). Issues of corporate personality implicate the scope and nature of corporate obligations in home and host states in the social and political sphere. (Backer 2006). Corporate internal governance issues, once considered strictly economic and confined to internal corporate stakeholders, have been broadened to include social and political issues and the concerns of outside stakeholders beyond the regulatory authority of the chartering state. (Hansmann & Kraakman 2002 (European context). The relationship between economic and political issues of corporate governance, of accountability to internal stakeholders and to external stakeholders implicates horizontal and vertical choice of law issues in new and largely unexplored ways. (Johns 1994). We are at a frontier between fields well worth exploring.

The recent golden share jurisprudence of the European Court of Justice has excited much commentary with respect to these nexus issues. These cases have substantially supra-nationalized the rules of Member State involvement in formerly state owned enterprises. The form in which these state interests were expressed varied. Some were cast in the form of formal privileged stake in the enterprise. (Commission v. French Republic 2002; Commission v. United Kingdom 2003; Federconsumatori v. Cmune di Milano 2007). Others suggested an involvement as the product of specifically targeted regulation. (Commission v. Protuguese Republic 2002; Commission v. Kingdom of Belgium 2002; Commission v. Kingdom of Spain 2003). Still others presented hybrid private public arrangements (Commission v. Federal Republic of Germany 2007).

These cases have been examined for their political effect. (Miller & Bock 2003). It has been suggested that the cases represent an attack on the German system of corporate governance. (Zumbansen & Saam 2007). It can be viewed as a simple elaboration of long standing principles of European Law grounded in basic provisions of the Treaties—principally the non-discrimination and free movement of capital obligations—in the amplification of a harmonized company law. (Rhodes & Appledoorn 1998). From a choice of law perspective it represents a greater effort to move choice of law issues up from the Member State to the European level, and by harmonizing, eliminating the horizontal choice of law issue. Yet, it represents far more than that.

The focus of this paper will be on the basis for determining the law applicable to Member States as shareholder—that is, as holders of interests in economic enterprises as private actors—and the substance of that law. As in the private law context, there are three foundational issues. The first is substantive law differences among competing legal regimes, that is the extent to which substantive rules differ enough to affect behavior and the legal consequences of activity. (Cf. Guaranty Trust Co. v. York 1945). The second are rules for choosing among these competing state regulatory regimes, that is the classic choice of law context. The third is the preemption of those methods by harmonization of either substantive or choice of law rules either up to a supra-national or federal level (Trautman 1992; Rustad 2007) or out to the private sector. (Backer 2007).

The paper starts with a critical examination of the development of the jurisprudence of golden share regulation in the E.U. It begins with an elaboration of the narrowest doctrinal meaning of that jurisprudence—this line of cases looks to the issue of the “rights that the State continues to hold after privatising formerly state owned enterprises.” (Grundmann & Florian 2003). It then suggests the way in which the cases also begin the construction of a new framework for considering choices of law in a new context—where a state actor seeks to enter the market or a private person. The analysis will draw attention to the difficulties of defining the private conduct of public entities in connection with other entities. States may both regulate and own an interest in economic enterprises. But those enterprises may be independent of the state that either regulates or owns an interest therein. The object will be to sketch the parameters of the current jurisprudence as well as to note those lacunae in that elaboration. Yet even when states act in their private capacity, their effects may be indirectly regulatory. As a consequence, rules applicable to private actors—including the protections of free movement of capital, and a protection for a vigorous shareholder democracy regime, may not be available to states acting as private entities, even outside of their home territories.

It is to three important lacunae that the paper turns to next: these are the questions that were avoided by the European Court of Justice in its golden share opinions, yet reflect the emerging realities of contemporary investment by public entities. The golden share cases could be said to have determined the extent to which a Member State, consistent with its obligations under the Community Treaty, could continue either to retain a superior interest in a privatized firm or by regulation, limit the discretion of the owners of that firm. But the cases might stand for substantially more—it might help define the extent of a Member State’s power to act in a private capacity, the extent to which the E.U. Treaty applies to Member States acting as private persons, the extent to which Member States may enter into relationships with corporations that are not of a regulatory nature, and the consequences for the state in terms of its liability to third parties. This point was clearly made in the December 2007 ruling of the Court of Justice in Federconsumatori v. Cmune di Milano (2007) and stressed in the earlier opinion of the Advocate General, Polares Maduro, in that case, an opinion careful to build on and expand the theoretical discussion of Advocate General Colmer from the earlier golden share cases. (Federconsumatori v. Cmune di Milano 2006, Opinion of Advocate General Maduro).

The first of the three questions touches on the power of a Member State to acquire shares in an undertaking incorporated under its laws but under a regulatory regime equally applicable to it and all other investors. Without the benefit of any special legislation applicable only to the state, can a Member State buy a large stake in a corporation, and use its power as an ordinary shareholder to its benefit? The second touches on the power of a Member State to invest in undertakings not subject to its regulatory control. Can France buy a large, perhaps even a controlling stake, in companies subject to the regulatory authority of Germany, and vote it shares, subject to ordinary company law rules, for the benefit of the citizens of France? The third touches on the consequences of Member States seeking to establish sovereign funds the purpose of which is to take significant positions in undertakings for their collective benefit. May France, Germany and Spain fund an enterprise the purpose of which is to take a large, and perhaps controlling interest, in certain undertakings for the mutual benefit of the members? The elaboration of the emerging jurisprudence, the general principles of EU law and the policies of corporate governance underlying them, to these three questions may be substantially more important in the long run in the contemporary globalized economic system. (Jones 1995).

The paper then considers the implications under public law—principally the law of sovereign immunity (Bankas 2005), another nexus point in the relationships between state and enterprise. Inherent in the golden share cases is an understanding of the nature and character of the public and private role of states and their legal effect for purposes of applying the most basic principles of EU law. But that elaboration of the nature and scope of the public/private distinction in state activity may be different, and substantially different, from that developing under the law of sovereign immunity. If states never lose their public character even when they act in a non-sovereign capacity abroad, but their actions abroad are treated as private within the host state, then the resulting tensions between the law of sovereign immunity and that of substantive state conduct might require resolution. It is worth looking at both the similarities and tensions in the parallel developments of notions of the public/private divide in state action under these two legal regimes and their implications.

The paper ends with a consideration of the insights American law might provide. American corporations are creatures of state law, but state law is a commodity that might be consumed by corporations that can freely seek reincorporation in a jurisdiction more to their liking. States may own shares in enterprises. But they may also regulate domestic corporations in away that makes it much harder for them to engage in certain transactions—the sort of regulatory interference that would be unacceptable under the golden share rules of the European Court of Justice. The template with greatest affinity to the European golden share cases may be the state anti-takeover legislation, initially disfavored and ultimately partially permitted under federal constitutional law principles. (Bebchuk & Ferrell 2001). In those cases, American courts spoke in terms that had significant potential on defining the nature of corporate regulation and the extent of state regulatory involvement in domestic corporation. At the same time, states may act as private actors, or through private actors, with a flexibility that may be unavailable in Europe. (Brotherton v. Cleveland 1999; Del Campo v. Kennedy 2008). The foundational policies that animate these results may be useful for Europeans to consider as they determine the reach of the lessons of the golden share cases, and the role of states as private economic actors—investors and consumers.

The European Court of Justice’s golden share cases provides an excellent window on a difficult issue of choice of law, and a revolutionary one. The trans-nationalization of corporate law norms provides an opportunity not only to examine the changing landscape of choice of law in private law, but also the creation of a new set of vertical choice of law issues involving a changing conception of the state in its relationships with what had been (perhaps over-narrowly considered) the exclusive the objects of its regulation. No longer a matter of which law must be applied, choice of law determinations must now increasingly consider the character of the actors involved in determining the legal regime applicable. States acting in their sovereign capacity, states acting as private stakeholder, corporations imbued with public purpose, all of these considerations will tend to change the face of choice of law in corporate law in the coming decades.

References:

Articles:

Larry Catá Backer, Economic Globalization and the Rise of Efficient Systems of Global Private Law Making: Wal-Mart as Global Legislator, 39(4) UNIVERSITY OF CONNECTICUT LAW REVIEW 1739 (2007).

----------, Multinational Corporations, Transnational Law: The United Nation’s Norms on the Responsibilities of Transnational Corporations as a Harbinger of Corporate Social Responsibility as International Law, 37 COLUMBIA HUMAN RIGHTS LAW REVIEW 287 (2006).

ERNEST K. BANKAS, THE STATE IMMUNITY CONTROVERSY IN INTERNATIONAL LAW: PRIVATE SUITS AGAINST SOVEREIGN STATES IN DOMESTIC COURTS (New York: Springer 2005).

Lucian Arye Bebchuk, Allen Ferrell, A New Approach to Takeover Law and Regulatory Competition, 87(1) VIRGINIA LAW REVIEW 111 (2001).

Morris Cohen, Property and Sovereignty, 13 CORNELL L. Q. 8 (1927).

----------, The Basis of Contract, 46 HARV. L. REV. 553 (1933).

Conference Announcement, The New European Choice of Law Revolution: Lessons for the United States?, Feb. 8, 2008.

Jens Dammann, A New Approach to Corporate Choice of Law, 38 VAND. J. TRANSNAT’L L. 51 (2005).

----------, The Future f Co-Determination After Centros: Will German Corporate Law Move Closer to the U.S. Model?, 8 FORDHAM J. CORP. & FINANCIAL L. 607 (2003).

Bénédicte Fauvarque-Cosson, Comparative Law And Conflict Of Laws: Allies Or Enemies? New Perspectives On An Old Couple, 49 AM. J. COMP. L. 407 (2001).

Stefan Grundmann and Florian Möslein, "Golden Shares - State Control in Privatised Companies: Comparative Law, European Law and Policy Aspects" (April 2003). Available at SSRN: http://ssrn.com/abstract=410580

Robert Hale, Coercion and Distribution in a Supposedly Non-Coercive State, 38 POL. SC. Q., 470-478 (1923).

Henry Hansmann, Reiner Kraakman, Toward a Single Model of Corporate Law?, in CORPORATE GOVERNANCE REGIMES: CONVERGENCE AND DIVERSITY 56 (McCahery, Moerand, Raaijmakers and Renneborg, eds., 2002).

Fleur Johns, The Invisibility of the Transnational Corporation, 19 MELB. U. L. REV. 893 (1994).

BARRY JONES, GLOBALISATION AND INTERDEPENDENCE IN THE INTERNATIONAL POLITICAL ECONOMY: RHETORIC AND REALITY (1995).

Duncan Kennedy, Form and Substance in Private Law Adjudication, HARV. L. REV. 1685 (1976).

Ralf Michaels, "Globalizing Savigny? The State in Savigny's Private International Law and the Challenge of Europeanization and Globalization" (September 2005). Duke Law School Legal Studies Paper No. 74 Available at SSRN: http://ssrn.com/abstract=796228.

Leland Rhett Miller and Christian W.D. Bock, "Golden Shares and EU Accession: Bulgaria's Balancing Act" . Journal of European Affairs, Vol. 1, No. 1, 2003 Available at SSRN: http://ssrn.com/abstract=600221

Alan Reed, The Anglo-American Revolution in Torts Choice of Law Principles: Paradigm Shift or Pandora's Box?, 18 ARIZ. J. INT'L & COMP. L. 867 (2001)

Mathias Reiman, Parochialism in American Conflicts Law, 49 AM. J. COMP. L. 369 (2001).

----------, "Stepping Out of The European Shadow: Why Comparative Law in The United States Must Develop Its Own Agenda," 46 AM. J. COMP. L. 637, 645 (1998).

Reuters Financial Glossary, Golden Share, available at http://glossary.reuters.com/index.php/Golden_Share (accessed Jan. 18, 2008).

Martin Rhodes, & Bastiaan van Appeldoorn, Capitalism Unbound? The Transformation of European Corporate Governance, 5 EUR. J. PUB. POL’Y 406 (1998).

Michael L. Rustad, Circles Of E-Consumer Trust: Old E-America v. New E-Europe, 16 MICH. ST. J. INT'L L 183 (2007).

Symeon C. Symeonides, Rome II And Tort Conflicts: A Missed Opportunity, 56 AM. J. COMP. L. 173 (2008).

Donald T. Trautman, Towards Federalizing Choice of Laws, 70 TEX. L. REV. 1715 (1992)

Peer Zumbansen and Daniel Saam, The ECJ, Volkswagen and European Corporate Law: Reshaping the European Varieties of Capitalism, 8(11) GERMAN LAW JOURNAL 1027, 1049 (2007),

Cases:

E.U.

Commission v. Federal Republic of Germany (Volkswagen), Case C-112/2005, dated 23 October 2007.

Commission v. French Republic, Case C-483/99, 4 June 2002.

Commission v. Kingdom of Belgium, Case C-503/99, 4 June 2002.

Commission v. Kingdom of Spain, Case C-463/00, 13 May 2003.

Commission v. Portuguese Republic, Case C-367/98, 4 June 2002.

Commission v. United Kingdom of Great Britain and Northern Ireland, Case C-98/01, 13 May 2003.

Federconsumatori v. Cmune di Milano, Case C-463/04 and C-464/04, 6 Dec. 2004.

----------, Opinion of Advocate General Maduro, 7 Sept. 2006.

U.S.

Brotherton v. Cleveland 923 F.2d 477 (6th Cir., 1999).

CTS Corp. v. Dynamics Corp. of America, 481 US 69, 95 L Ed 2d 67, 107 S Ct 1637 (1987).

Del Campo v. Kennedy, slip op. -- F.3d. -- (9th Cir., Feb. 6, 2008).

Guaranty Trust Co. v. York, 326 U.S. 99 (1945).

Alternativa Bolivariana Para los Pueblos de Nuestra América (ALBA): A Summary of the 6th Summit of Member States

My research assistant at Penn State, Augusto I. Molina Roman (Penn State Law 2009), has helped prepare the following summary of the events at the just concluded 6th summit of ALBA that concluded January 27, 2008.

The summary provided in the Boletin ALBA No. 15 is very lofty in its wording and continues the rhetoric behind the ideals that ALBA proposes and the steps it is taking to ensure that it continues to grow in scope and importance as a true alternative for Latin American and Caribbean development and integration. Beyond the colorful language, there are a few substantive things mentioned, among them is included:

1. A political declaration signed by the four member states (Bolivia, Cuba, Nicaragua, and Venezuela) and attended by government representatives from Ecuador, Haiti, Uruguay, Honduras and St. Kitts & Nevis, in which they note the dire economic situation that the U.S. is undergoing and the now greater need for Latin America and the Caribbean to heed the call of ALBA in creating an alternative method by which sustainable and equitable development can occur.

2. One of the articles in the bulletin mentions that, at least in the context of the Petrocaribe initiative, it appears as though Honduras is also a full-fledged member of that ALBA initiative.

3. Without going into details, the first article in the bulletin gives praise to the achievements that ALBA has accomplished in the areas of health, education, and nutrition in Bolivia, Nicaragua, and Haiti.

4. The second article in the bulletin is an official declaration by Dominica of its desire to become a full-fledged member of ALBA.

5. The third article: Acta Fundacional del Banco del ALBA sets the framework for the creation of the Banco de ALBA we had been waiting for since last July. Some notable things about the framework include:

a. The considerations re-iterate the underlying goals and concerns of ALBA and how it is necessary for the member states to have their own source of funding in order to be able to carry out the proposed grand-national projects.
b. The bank itself will be a public, international entity, and is to be treated as its own legal “person.”
c. The bank’s objective is to “promote sustainable economic and social development, reduce poverty, strengthen integration, reduce asymmetries, and to promote a just, dynamic, harmonious and equitable economic exchange among the ALBA member states.
d. The bank will finance programs and projects directed at key sectors of the economy of ALBA nations.
e. The bank will be governed in accordance with the “best” international financial practices to ensure a greater return on the investments, so that these returns can then be reinvested in ALBA nations.
f. As for representation within the bank, each country is to be accorded equal representation under a democratic system.
g. The document is to be presented to the respective legislatures of the member states so that they make take the necessary steps (within 60 days) to ensure that the necessary steps are taken so that the creation of the Banco de ALBA can proceed.

6. The next article of relevance is the one titled “Conceptualizacion de Proyecto y Empresa Grannacional en el Marco del ALBA.”
a. Again, without going into specific details as to what the accomplishments, if any, the proposed grandnational projects agreed to during the V ALBA Summit, the article goes on to express the small steps that have been taken to make the proposed projects a reality. This includes the creation of grandnational “corporations” by ALBA member states that are faced with the task of completing the grandnational projects. I’ve placed the word corporations in parenthesis so as to distinguish the term from what it traditionally and legally meant by that term in the context of U.S. businesses.
b. The article reiterates the goals of ALBA. It then goes on to define what exactly a “grandnational” project is and how these differ from the current state of affairs in the world. To qualify as a grandnational project, the project must be based on the principles and objectives of ALBA and be carried out by at least two ALBA member states. This can range from a simple bilateral project among two member states, to a multinational project encompassing all four member states.
c. A grandnational project is akin to a mega-state in the sense that it requires joint political actions among states that share a similar vision as to their development without having to give up part of their sovereignty or social identity, and without having the need to create a supranational organization to achieve the goal.
d. In fact, the article specifically makes note of the fact that the concept of grandnational “corporations “ is intended to counter the moves that transnational corporations took when they abandoned any allegiance to the nation-states that chartered them in search of capital. Instead, the grandnational “corporations” are intended to be property of the respective ALBA nation-states, and as such will be controlled and managed in accordance with what is best for the welfare of the state and its people.
e. Although the grandnational “corporations” are property of the state, they are expressly given permission to associate and transact with the private sector.

7. The last article in the bulletin: “ALBA Cultural” cites the importance of using the common culture shared by Latin America as a uniting force to help spread the goals and ideals of ALBA throughout the region. It goes on to mention some of the initiatives and projects that have been achieved so far in the area of culture and how more needs to be done in this sector.
a. In particular the member states agreed to incorporate a ALBA-Cultural Strategic Plan for 2008-2010.
b. It has a proposed budget of $20 million dollars over three years to fund the proposed projects and initiatives.

ALBA is a supra national organization constructed to serve a variety of purposes. It is meant to serve as an example of internationla trade relations grounded on a basis of state to state relations in which the public sector is privileged over private market transactions, it is meant to serve as a counterweight to the network of conventional bi lateral and multilateral trade agreements that are said to favor the United States disproportionately, it is meant to provide a political framework for opposition to the principles of contemporary economic globalization. In its own words it suggests that

En consecuencia, urge una propuesta alternativa basada en la solidaridad. Se trata de ayudar a los países más débiles a superar las desventajas que los separan de los países más poderosos del hemisferio. Y esto no solo depende de los cambios en las condiciones de competencias imperantes, sino también de la solidaridad entre los pueblos y sus gobiernos del continente a la hora de corregir estas asimetrías. Solo así un área de libre comercio podrá ser una oportunidad para todos (una alianza ganar-ganar). ("As a consequence. it suggests an alternative framework based on solidarity. It seeks to help the weakest states to overcome their disadvantages that distinguishes these states from the more powerful states of the hemisphere. And this does not depend solely on changes within prevailing competences but also on solodarity between peoples and their governments in this continent to correct these asymmetries. Only within this area of free trade will there be an opportunity for all (a "win-win" alliance).

ALBA, Que es el ALBA?. It will be interesting to see whether ALBA can make good on these promises. As Cuba and Venezuela seek to maintain a zone free of interference by the United States, the ability to surround themselves with other states may make a difference. Whether this alliance can generate more than a bit of breathing space--that is, whether significant affimative and effective alternative programs of trade can actually develop in a manageable way, remains to be seen. Still, the United States ignores this organization at its peril. Even with much of a bite in the trade area, it is already packing quite a punch in the ideological wars in Central and SOuth America. The United States will need to meet this at some point, or face the consequences. And those consequences include the movement of this region both eastward towards the European Union and westward toward China.

Cuba and Brazil Part II: Castro Continues His Wooing of Lula

In his January essay series, Fidel Castro focused on Cuba’s connections with Brazil and Castro’s personal connection with that prodigal son of Marxist-Leninist determinism—Luiz Inácio Lula da Silva, the current President to Brazil. Written in three parts, the first part served as a set up of sorts. See Fidel Castro, Fidel Castro Ruz, Reflexiones del Comandante en Jefe, Lula (Primera Parte), Jan. 22, 2008. I suggested that this introduction served to draw Lula da Silva back into the appropriate political camp—that of his youth and of his social class. This is an important strategic goal for Cuba, an island that relies solely on a place like China alone at its peril. Brazil serves as a strategic buffer against the anticipated wave of destabilizing action originating in the United States that will increase on Castro’s death. See Larry Catá Backer, Cuba and Brazil Part I: Castro Lectures Lula da Silva, Law at the End of the Day, Jan. 26, 2008 (http://lcbackerblog.blogspot.com/2008/01/cuba-and-brazil-part-i-castro-lectures.html).

With the second of the series, Castro continues his ideological courtship danzón. See Fidel Castro Ruz, Reflexiones del Comandante en Jefe, Lula (Segunda Parte) (http://www.cuba.cu/gobierno/discursos/2008/esp/f230108e.html). Castro starts, as he did in part I, with a memory meant to tie Lula both to his “family” and to a cluster of issues with respect to which Cuba and the United States (and Brazil and the United States to a lesser degree) hold strongly different positions.

“Lula warmly reminded me of the first time he visited our country in 1985 to take part in a meeting organized by Cuba to analyze the overwhelming problem of the foreign debt; participants representing a wide spectrum of political, religious, cultural and social tendencies presented and discussed their opinions, concerned about the asphyxiating drama.” (In Spanish: “Lula me recordó con calidez la primera vez que visitó nuestro país en el año 1985 para participar en una reunión convocada por Cuba para analizar el agobiante problema de la deuda externa, en la que expusieron y debatieron sus criterios los representantes de las más variadas tendencias políticas, religiosas, culturales y sociales, preocupados por el asfixiante drama.”

Castro, Lula (segunda parte), supra. Cuba, in particular, has been at the forefront of a global effort to discredit the contemporary system of global finance, especially in its sovereign lending aspects. See Larry Catá Backer, Ideologies of Globalization and Sovereign Debt: Cuba and the IMF, 24 PENN STATE INTERNATIONAL LAW REVIEW 497 (2006) (). And Castro recalled the force of the early nature of those struggles.

Lula is invested in those struggles, and Castro reports Lula’s pride in having overcome the difficulties posed by Brazil’s engagement with global finance. “Lula explains to me how that year was different. He says that Brazil has no debt today either with the International Monetary Fund or with the Paris Club, and that it has 190 billion US dollars in its reserves. I assumed that his country had paid enormous sums in order to comply with those institutions.” In the Spanish original: “Lula me explica la diferencia con aquel año. Afirma que hoy Brasil no tiene deuda alguna con el Fondo Monetario ni tampoco con el Club de París, y dispone de 190 mil millones de USD en sus reservas. Deduje que su país había pagado enormes sumas para cumplir con aquellas instituciones.” Castro, Lula (segunda parte), supra.

This prompted a long reminder of Castro’s views of the perversity of American manipulation of global finance at least since the time of President Nixon in the early 1970s, a point that has proven of enduring significance to Castro. Much of the discourse is well worn. These included the evils of American financial policy, the perils of Jewish persecution by Hitler (whose great mistake, it appears was to confuse a hatred of Capitalism and Communism for a hatred of the Jews), and the evils of Jewish emigration into and national aspirations within the old Ottoman province of Palestine, and “Bush’s adventurous policies in the Middle East.” Castro, Lula (segunda parte), supra. This tour de force ends with the agenda of the exercise—an admission of the strategic importance of Brazil to Cuba given its agricultural potential and its water reserves. Id.

But there is a nugget worth extracting. He noted in his recollection of the American use of its post war wealth: “The United States, I said, bought up properties all over the world minting dollars, and exercise sovereign privileges over such properties acquired in other countries.” In the Spanish original: “Estados Unidos Å\le dijeÅ\ ha comprado bienes en todo el mundo imprimiendo dólares, y sobre tales propiedades adquiridas en otras naciones ejercen prerrogativas soberanas.” Castro, Lula (segunda parte), supra. This is a curious point and worth lingering over. Castro, like many conservatives in other parts of the world, takes the position that sovereign entities, unlike other forms of corporate organization, may not act in a private capacity. A state is always a state, and its action, whether or not of a directly sovereign character are necessarily always sovereign in character. As such, the United States, almost by definition, acquired sovereign privileges with every purchase of property acquired elsewhere. In this respect Castro is an anachronism of sorts. The contemporary global community has long recognized the possibility of states acting in the market as private actors—and has adjusted public law to accommodate this idea. The law of foreign sovereign immunity recognizes an exception for substantially private (non regulatory activity), and contemporary economic globalization deepens the possibility of distinction between states as regulator institutions and states as public corporations. Though elements in the European Union have also suggested that states might be incapable of being treated identically to private corporations, most public actors recognize the possibility of a private/public distinction and law has tended to follow this consensus.

The conversation returns to food. Brazil has it; Cuba sits at the margins. For Cuba, that means a super milk producing cow “a Holstein-Zebu hybrid. Right away Lula named her: “White Udder!” (Ubre Blanca), he exclaimed. He remembered her name. I went on to say that she would produce 110 litres of milk a day. She was like a factory, but she had to have more than 40 kilograms of fodder.” In the original Spanish: “En Cuba, le continué explicando, tuvimos una vaca que estableció récord mundial de leche, una mezcla de Holstein con Cebú. De inmediato Lula la mencionó: “¡Ubre Blanca!” exclamó. Recordaba su nombre. Le añadí que llegó a producir 110 litros diarios de leche. Era como una fábrica, pero había que darle más de 40 kilogramos de pienso, el máximo que podía masticar y tragar en 24 horas.” Castro, Lula (segunda parte), supra.

But making food takes more food than Cuba can afford to feed its Ubre Blanca. And Castro bemoans the end of the days of cheap food.

“I ask him, What do you think will do the dozens of countries with many hundreds of millions of inhabitants who have neither the one nor the other? This means that the United States has a huge external dependency which is also a weapon. It could use all its reserves of land, but the people of that country are not ready for that. They are producing ethanol from corn, therefore, they are taking a great amount of this caloric grain off the market, I added making my point.” In the original Spanish: “¿Qué harán las decenas de países con muchos cientos de millones de habitantes que no cuentan con una cosa ni otra?, le expreso. Esto significa que Estados Unidos tiene una enorme dependencia externa, pero a la vez un arma. Sería echando mano de todas sus reservas de tierra, pero el pueblo de ese país no está preparado para eso. Ellos están produciendo etanol a partir del maíz, lo cual provoca que retiren del mercado una gran cantidad de ese grano calórico, continué argumentándole.” Castro, Lula (segunda parte), supra.

Aha! The subtle point has been made—a jab at Brazil’s recent efforts to team up with the Americans to produce ethanol, a partnership that Castro, and Chavez, have criticized in unison. See Larry Catá Backer, Fidel Castro, Hugo Chavez, and the Response to the U.S. Brazil Deal on Ethanol Production, Law at the End of the Day, March 3, 2007 (http://lcbackerblog.blogspot.com/2007/03/fidel-castro-hugo-chavez-and-response.html). And here Castro emphasizes the differences between Brazil, the giant, and Cuba. Brazil is set to sell its 2009 crop of corn (including that portion set aside for ethanol) and is not dependent on that crop. Cuba is another story. “You, on the other hand, can rely on a favorable climate and loose soil; ours tends to be clayish and sometimes as hard as cement. . . . Our soil is not suitable for the large scale commercial production of cereals, as required to meet the necessities of a population of almost 12 million people, and the cost in machinery and fuel imported by the nation, at today’s prices, would be very high.” In the original Spanish: “Tú en cambio cuentas, le dije, con un clima favorable y una tierra suelta; la nuestra suele ser arcillosa y a veces dura como el cemento. . . Para producciones comerciales de granos en gran escala, como requieren las necesidades de una población de casi 12 millones de personas, nuestras tierras no son aptas, y el costo en máquinas y combustibles que el país importa, con los actuales precios, sería muy alto.” Castro, Lula (segunda parte), supra.

And then back to the connection—Lula-Brazil-Nicaragua-Castro-Cuba: “In the short time Lula and I spent together, two and a half hours, I would have liked to summarize in just a few minutes the almost 28 years that have gone by, not since the time he first visited Cuba, but from the time I met him in Nicaragua. This time he was the leader of an immense nation whose fate, however, depends on many aspects that are common to all the peoples on this planet.” Castro, Lula (segunda parte), supra. But this is nostalgia with a specific political point—moving Brazil farther from the United States and closer to Cuba.

As he stands in front of me, smiling and friendly, and I listen to him speaking with pride about his country, about the things they are doing and those they plan on doing, I think about his political instincts. I had just finished quickly looking over a hundred-page report on Brazil and the growth of relations between our two countries. He was the man I met in the Sandinista capital, Managua; he was someone who connected closely with our Revolution. I neither spoke to him, nor would I ever speak to him, about anything that could be construed as interfering in the political process of Brazil, but he himself, right at the beginning, said: Do you remember, Fidel, when we spoke at the Sao Paulo Forum, and you told me that unity among the Latin American left-wing was necessary if we were to secure our progress? Well, we are now moving forward in that direction." Castro, Lula (segunda parte), supra. In the Spanish: "Cuando está delante de mí, sonriente y amistoso, y lo escucho hablar con orgullo de su país, de las cosas que está haciendo y se propone hacer, pienso en su instinto político. Yo acababa de revisar velozmente un informe de cien páginas sobre Brasil y el desarrollo de las relaciones entre nuestros dos países. Era el hombre que conocí en la capital sandinista de Managua y que tanto se vinculó con nuestra Revolución. No le hablé ni le habría hablado de algo que resultara injerencia en el proceso político de Brasil, pero él mismo entre las primeras cosas dijo: ¿Te acuerdas, Fidel, cuando hablamos del Foro de Sao Paulo, y me dijiste que era necesaria la unidad de la izquierda latinoamericana para garantizar nuestro progreso? Pues ya estamos avanzando en esa dirección."

The fish is caught. It is merely a matter of reeling him in. But Lula appears to reel himself into the deterministic boat that Castro has crafted for him. At the end of the second part of our Lula trilogy, then, it appears that Lula himself returns to his ideological roots and one better--for now he controls the state.

Immediately he speaks to me with pride about what Brazil is today and its great possibilities, bearing in mind its advances in science, technology, mechanical industry, energy and other areas, bound up with its enormous agricultural potential. Of course, he includes the high level of Brazil’s international relations, which he describes enthusiastically, and the relations he is ready to develop with Cuba. He speaks vehemently about the social work of the Workers' Party which today is supported by all the Brazilian left-wing parties, which are far from having a parliamentary majority. Castro, Lula (segunda parte), supra. In the Spanish: "De inmediato me habla con orgullo de lo que es Brasil hoy y sus grandes posibilidades, tomando en cuenta sus avances en ciencia, tecnología, industria mecánica, energética y otras, unidos a su enorme potencial agrícola. Por supuesto que incluye el elevado nivel de las relaciones internacionales de Brasil, que detalla con entusiasmo, y de las que está dispuesto a desarrollar con Cuba. Habla con vehemencia de la obra social del Partido de los Trabajadores, hoy apoyada por todos los Partidos de la izquierda brasileña, que están lejos de contar con una mayoría parlamentaria. " Castro, Lula (segunda parte), supra.

All is going well. From out of the darkness of the surprise visit comes a return to the road to true socialism based on the revolutionary framework first ignited by the Cuban Revolution and then manifested by the first Sandinista regime. But Nicaragua is small fish; Venezuela is better, but Brazil is the catch of the century--especially for Cuba. It represents food, fuel, space and protection. Indeed, the promise of an ideological bridge might well cement protection for Cuba. . . . against the machinations of the United States, in away that China might not. Castro here intimates that he remains suspicious of the road taken by his brother and the Fuerzas Armadas Revolucionarias. Castro does not trust the Chinese; he is suspicious of their ideological position; and he may not believe that the Chinese will stand by the Cubans even when it goes against the Chinese national interest. Castro is not the only one who fears a trade of Cuba for Taiwan in the dealing of the American and Chinese super powers. This is not unrealistic were the Chinese and Americans to start dealing with subordinate states the way merchants deal with inventory. See Larry Catá Backer, Anticipating Fidel Castro's Death: The U.S. and China Prepare For Battle Over the Fate of Cuba, Law at the End of the Day, Aug. 1, 2006.

But it is not clear who is pulling whose leg. Castro is looking to Brazil as a block against the United States, but it seems that Brazil may be looking to Cuba to strengthen its credibility as a major go-between between the United States and critical Latin American States. The extent to which that notion is engrained within the Brazilian elite close to Lula was hinted at in the address by the then outgoing Brazilian Ambassador to the United States, Roberto Pinto Ferreira Abdenur:

Abdenur assured that Brazil would be its natural ally in such an endeavor. Brazil has good relations with all of its neighbors and strategically occupies a moderate space between the region’s divergent interests and trajectories, as illustrated by its leading role in the current international efforts to stabilize Haiti and by its contribution to the resolution of the conflict between Peru and Ecuador in the 1990s—in both cases in close cooperation with the United States. Abdenur argued that the United States is not the only actor that must take decisive steps towards a convergence of interests between the two countries: Brazil must stop fearing the United States and instead embrace it as a partner.

Woodrow Wilson International Center for Scholars, The Future of U.S.-Brazilian Relations, Event Summary, Jan. 24, 2007. Perhaps Brazil can continue to play the role of “power in the middle.” Lula is certainly playing the role well. Castro certainly finds him useful—and perhaps malleable.

A Critical Reading of the Carnegie Foundation's Study of Legal Education: "Educating Lawyers: Preparation for the Profession of Law"

Over a century ago influential members of the public began to worry about the social order. In the face of large numbers of immigrants with no cultural connection to English social and political values (Morton 1984; Condliffe Langemann 1992), and significant class distinctions arising as a consequence of the great revolution in American business and industry (Mink 1986), all sorts of groups arose to help “fix” the problems that might have been viewed as threatening the Republic. (Garland 1994; Kleppner 1979). This was the age of the Progressive Party and a new sort of Enlightenment progressivism in the United States—things could be fixed and made better, the application of “scientific” or “rational” principles could solve all problems. (Howland 1921).

Among the more pressing issues of the early 20th century was the training of lawyers. The late 19th century saw a revolution in the legitimacy of methods for the training of lawyers. Abandoning the traditional customary system of training in customary (common) law as primitive, the new scientific age successfully gave rise to a new science of law and legal training to be based in the University—not the law office. (LaPiana 1994). By the early 21st century the law school stood triumphant atop a system of certification for entry into legal practice in the United States. But that triumph has not gone without a certain amount of criticism. On the one hand, some critics have suggested the present system may not be up to reflecting the changes—actual or hoped for—within American society. (Lynn 1999). Others have suggested the need for a more rigorously academic turn. (Watson 2005). Still others have suggested the need to reform the legal profession rather than its system of training. (Rhode 2000). Professor Rhode explained: “This mismatch between what law schools supply and what law practice requires argues for a different approach. The diversity in America's legal needs demands corresponding diversity in its legal education. Accreditation frameworks should recognize in form what is true in fact. Legal practice is becoming increasingly specialized. It makes little sense to require the same training for the Wall Street securities specialist and the small town matrimonial lawyer.” (Id., at 190).

Yet another persistent group of influential groups, starting almost from the inception of the turn to academic legal education, have suggested a certain danger in the increasingly academic character of legal education. Among the most persistent, and most influential of this group has been the Carnegie Foundation. The Carnegie Foundation for the Advancement of Teaching was founded in “905 and chartered in 1906 by an act of Congress, The Carnegie Foundation for the Advancement of Teaching is an independent policy and research center with a primary mission "to do and perform all things necessary to encourage, uphold, and dignify the profession of the teacher and the cause of higher education." (Carnegie Foundation for the Advancement of Teaching, The Carnegie Foundation).

Over the course of the last century, it has fought a losing battle to reform American legal education. It has sought to recognize the class divisions in American legal practice by a corresponding diversity in the forms of legal education offered. (Reed 1921). Additional studies of legal education, important in their time, were produced in the 1970s and 1990s. (Packer and Ehrlich 1972; Boyer 1990; Condliffe Langemann 1999).

The Carnegie Foundation has now published the results of a study of legal education in the United States. That study “involved a comprehensive look at teaching and learning in American and Canadian law schools today. Intensive field work was conducted at a cross-section of 16 law schools during the 1999-2000 academic year.” (Carnegie Foundation for the Advancement of Teaching, Program Areas, Legal Education Study). Published in book form as Educating Lawyers: Preparation for the Profession of Law (Sullivan 2007 [hereafter Educating Lawyers]), the study is bound to have serious impact, though whether that impact will be successful or permanent remains to be seen. Educating Lawyers is supposed to provide “an opportunity to rethink "thinking like a lawyer"—the paramount educational construct currently employed, which affords students powerful intellectual tools while also shaping education and professional practice in subsequent years in significant, yet often unrecognized, ways.” (Carnegie Foundation for the Advancement of Teaching, Program Areas, Legal Education Study). The principal thesis is that academic law is losing touch with both its roots in the practice of law and its mission—to educate lawyers for practice. However, through practical application of the techniques offered, grounded in a change in fundamental conception of the nature of the legal education enterprise, legal education can be appropriately redirected. What is new is the suggestion that the ends of legal education ought not to be confined to the teaching of legal doctrine and analysis, but also include an equal dose of “the several facets of practice included under the rubric of lawyering” (Educating Lawyers, at 194), and a broad “emphasis on inculcation of the identity, values, and dispositions consonant with the fundamental purpose of the legal profession,” (Id.) a purpose left substantially undefined.

This short essay starts with a critical review of Educating Lawyers. The focus is on the basic assumptions about legal education underlying the suggestions for the changes proposed. These assumptions both frame and may limit the suggestions for change. And it is the nature of the limitations inherent in the foundational assumptions of the study that must be understood to extract the most value from Educating Lawyers. The attitude changes proposed in its Introduction, and Chapter One are elaborated as practice models in the remaining chapters of the work. The essay suggests that, for all of its theoretical insights, the reality of the practical suggestions made will have little effect on the drift of legal academic education away from its roots. This is inevitable in the context of great changes in American law itself, as it drifts further from its common law rotts and embraces in theory and fact a different framework for understanding law and the relation ship between law and lawyers.

Educating Lawyers is meant to respond to a crisis of professionalism. (Educating Lawyers, at 29-33). “For professional education, the question is how to provide a powerful experience of what it means to take up a profession.” (Educating Lawyers, at 30). And that question is the core problem taken up by the study. For the providers of legal education have lost touch with the profession whose educational objectives are ethical. “Ethics in a professional curriculum ought to provide a context in which students and faculty alike can grasp and discuss, as well as practice, the core commitments that define the profession.” (Educating Lawyers, at 31). That conclusion, in turn, is grounded in a set of core assumptions about the relationship between academic legal education and its stakeholders. Educating Lawyers starts with a presumption—that the principal stakeholder of legal education is the bar, and that the bar has assumed a critical role in the functioning of the American state. “Thus, the focus of this book is on the preparation of lawyers, more particularly on their preparation in law school—the crucial portal to the practice of law.” (Educating Lawyers, at 1). It interrogates this function through what it describes as “an unusual angle of vision” (Educating Lawyers, at 1) that focuses “on the daily practices of teaching and learning through which future legal professionals are formed.” (Educating Lawyers, at 2-3).

But law schools and the legal profession no longer work as a harmonious whole—a whole focused on the same set of norms, tasks, goals, and incentives. When lawyer and law instructor were fungible and interchangeable, the common culture that bound them, in terms of objectives, frames of reference, professional incentives and the like, served to ensure that law instructors served the interests of the bench and bar, as then constituted. But for the last hundred years or so, it seems, the legal academy has been falling under the sway of a model that may not serve the interests of the profession as well as it serves its own interests. (Educating Lawyers, at 4-7). The authors of Educating Lawyers somewhat charitably describe this split as producing a “hybrid institution.” This hybrid blends two distinct and not necessarily complementary communities—that of the ancient traditions of the common law bar, and that of the so-called modern research university. (Educating Lawyers, at 4). But what should have been a happy union has gone bad—“as American law schools have developed, their academic genes have become dominant.” (Educating Lawyers, at 4). Thus the overall goal of Educating Lawyers is to bring balance back to this arrangement. (Educating Lawyers, at 12-15). And for that purpose, Educating Lawyers proposes a unitary framework for education within which the doctrinal, practice and ethical elements of practice can be integrated (Educating Lawyers, at 194-197) within the normative context of a university environment in the form of a set of three related apprenticeships of professional education. (Educating Lawyers, at 27-29).

Yet, for all that, it remains unclear whether thus sort of hybrid unity is possible within the context of an enterprise (university sourced professional education) that is neither fish nor fowl. Part of the problem, well identified by the authors, is described by them as a set of powerful “external factors.” (Educating Lawyers, at 33-34). But what the authors characterize as external factors are in really a set of internal factors—internal, that is, to the values and practices of the academic community within which law schools operate. These include the disciplinary mechanisms of the rankings by outsiders (Educating Lawyers, at 33), and the costs of providing the sort of education that students are willing to pay for. (Id.). Though it is hard to see how those factors are external to the university as such. Whatever their demerits, the disclosure standards used represent in large measure the decision taken both by industry leaders (the so-called top schools), and the consumers of those services (the bar and potential students). They serve as a significant disciplinary tool for the organization of academic communities as such and affect decisions with respect to the allocation of resources and the competition for faculty in ways that are internal to legal education as part of a university community. “Within academic circles, legitimacy and respectability accrued to whatever could be assimilated to the model of formal, science like discourse.” (Educating Lawyers, at 6).

At least of the factors identified are arguably “external.” Teaching to the test (the bar examination) can be viewed as external to the law school. (Educating Lawyers, at 6). But that analysis fails if we adhere to the initial assumption of law schools as a hybrid institution. The bar examination may be external to the law school as an academic institution, but it is hardly external to the law school in its role as part of the community of the bar. The bar examination, in that sense, is no more external to the law school, than an examination in any course offered within the institutional framework of the university. Likewise, the hiring practices of the leading law firms are hardly external to the institution grounded in its principal relationship with the bar. (Id.). Decisions of the legal academy’s principal stakeholder (as identified in Educating Lawyers) here serves appropriate disciplinary role, but one internal to the institution itself. Hybridity, in this context, makes for complexity. In this case, the external may be far smaller, and contain internal contradictions, than that in non-hybrid systems.

But the greater problem is normative and may be insurmountable. The authors spend a bit of time identifying, and then ignoring, the crucial dilemma of legal education: the nature of law and the function of the legal profession within it. Since the mid 19th century there has been a contest in the United States for the “soul” of law. (Backer 2007). The progressive nature of American culture began to see the customary law as increasingly obsolete, or at best an impediment to progress. Scientific principles that began to infest all of the social sciences eventually found form in the science of law. Of course, the authors of Educating Lawyers put it a bit less provocatively. (Educating Lawyers, at 5). Whichever way one chooses to “hear” the insight, that science, founded on a need to make sense and give order (in the sense understood in the great codification efforts of the European (and especially German) civil law) to law produced a great movement toward positivism that has to some great extent overcome the ancient foundations of the self conception of the bench and bar, and the understanding of its mission within the American legal framework. (Id.). “All this spelled the eclipse of traditional forms of practitioner-directed apprenticeship by academic instruction given by scholar teachers.” (Id.). And so the authors of Educating Lawyers can state with some confidence that “Law entered the American University at a time when attempts to blend academic and practitioner traditions of legal training resulted in what was, in some respects, less a reciprocal enrichment than a protracted hostile takeover.” (Id.).

The problem then, is not merely methodological—the basis of the proposals in Educating Lawyers—but part of a complex contest for the control of the production of knowledge, and especially for control of the understanding of law in the United States. The contest between the bar and the university represents in symbolic form, a larger contest between the customary law origins and culture of the early American Republic, with the needs and aspirations of a positive law state into which the United States is evolving. But this contest, now over a century old, has been decided for all practical purposes—and the traditional bench and bar, as guardians of the customary law, have lost. Indeed, the authors of Educating Lawyers suggest this in their reminder of the century long struggle of the Carnegie Foundation against the tide of the reconstruction of legal education in the face of the imperatives of membership in university communities and in the contest for reshaping the meaning of law and the place of lawyers within American society. (Id., at 18-20) . “Thanks in part to the development of legal scholarship, the law schools of the leading universities no longer fear being dishonored as ‘mere trade schools.’” (Id., at 7).

But consider the problem of following the logic of this argument to its end. In this respect, Educating Lawyers, fails before its starts, at least with respect to the grand vision of restoring balance between the bar and university communities represented in legal academic education. The bar is now necessarily a junior partner in the enterprise. So the critical mission now becomes much more modest: to preserve some sort of role for the bar within an academic enterprise that serves the interests of a positivist legal order in which lawyers have a more pervasive but much more diminished role.

“In the world of legal theory, this new spirit was exemplified in the efforts of legal positivists, who viewed law as an instrument of rational policymaking—a set of rules and techniques rather than a craft of interpretation and adaptation embedded in the common law.” (Educating Lawyers, at 5). Nothing has changed. And though Educating Lawyers may lament this passage of power from the bar to the legislator and the academic, it does not propose revolution. And so, the bulk of the study reduces itself to an intense review of micro concerns—methodology for the most part. “The focus of such attention falls on teaching practices that enable learners to take part in the basic features of the professional practice itself.” (Educating Lawyers, at 9). The focus is on urging the university to incorporate a broader methodology that nods in the direction of the bar, without seeking to undo the shift in power over law. The law school is now to focus not only on the development of conceptual knowledge, but also on skills and ethics. (Educating Lawyers, at 12-14). The purpose is to socialize the law students to the realities of law, today, but it is not to shift power back to the bar or to turn back the clock on the primacy of the common law. The academy has won, in this sense, and the only object left is to ensure that they find of way of training lawyers to function within the new realities more effectively. (Educating Lawyers, at 23-24). This perhaps explains the focus on the emphasis on signature pedagogies as a method of specialization. (Id. at 23). These are understood in the manner of disciplinary techniques elaborated in Continental theory to which the authors of Educating Lawyers appear to allude. (Foucault 1977, at 195-228; Bourdieu 1987, 837-39).

In a sense, then, the roles of the bar and the university have been flipped from their relationship a hundred years ago. “”Law school scan help the profession become smarter and more reflective about strengthening its slipping legitimacy by finding new ways to advance its enduring commitments.” (Educating Lawyers, at 128). The forms of the old partnership are to be maintained—thus the emphasis on the apprenticeship models as metaphors for the methodological suggestions in Educating Lawyers (Educating Lawyers, at 25-29), but the focus is now on the construction of a lawyer better suited for the times. (Educating Lawyers, at 31-32).

Yet methodology can be important, and sometimes even acquire a normative dimension. (Backer 2007a). Educating Lawyers first focuses on the Socratic method as the core of legal education’s signature pedagogy and its utility to the goals of extending the law school teaching objectives to skills and ethics. (Educating Lawyers, at 47-86). The authors write that “[i]n this chapter we attempt to unlock the secret of the learning process in the case-dialogue method and place it within the overall process of preparing legal professionals.” (Id., at 47). It then explores the skills aspect itself. (Educating Lawyers, at 87-125). The authors tell us that in “this chapter we look at some current promising experiments in the preparation of students for legal practice. In doing so, we hope to call attention to the largely unrealized potential that these models offer for addressing many criticisms of today’s law schools, those of the profession and the public.” (Id., at 88-89). It then focuses on the place of law school as a site for professional formation. (Educating Lawyers, at 126-161). Here the authors seek to “show how virtually all forms of the teaching tat tales place in law schools, . . . are pedagogies that can be used to shape professional identity.” (Id., at 128). It ends with a set of implementation recommendations (Educating Lawyers, at 162-184), in which the authors “look closely at assessment in legal education—how it is done, how it might be done.” Id., at 164).

And methodology may play a critically important role in the naturalization of new areas of legal study within the American academy—for example international and transnational law and legal study. In this sense, Educating Lawyers, provides a powerful framework for understanding a basis for the incorporation of new practice areas that will maximize their utility to the bench and bar, while satisfying the institutional needs of the university, and remaining connected to their own sources. It is with this in mind that I briefly review the implementation proposals set forth in chapters 2-5 of Educating Lawyers.

The methodological focus of Educating Lawyers is on socialization. What law schools do well is teach doctrine. What law schools must do better is to teach the individual to “think like a lawyer.” (Educating Lawyers, at 47). That involves more than the transmission of doctrine, even the transmission in a peculiar way. It involves the socialization of the individual into the mores and habits of a community, and in doing so more consciously take up the role once reserved to the bar and bound up in its transmission of the “craft, judgment, and public responsibility” of lawyers. (Educating Lawyers, at 4). That socialization focuses on the case dialogue method of instruction.

While the authors of Educating Lawyers place much positive value on the case dialogue method as the signature pedagogy of legal education, they suggest the possibility of broader application. While the case dialogue method as classically developed is a superb instrument of socialization within a core mission to inculcate doctrinal knowledge, it is missing a piece. That piece is values. (Educating Lawyers, at 56-58). This is value understood as both ethics and a direction toward the “right” result. There is a need to form the lawyer, through this power agency, as both a legal technician and moral agent. (Educating Lawyers, at 84). This points to the need for education beyond doctrine.

Education beyond doctrine serves as a bridges to practice that is of critical importance to the authors of Educating Lawyers. Here the authors confront the realities of the class hierarchies that are inevitable within the normative structures of university culture. This the authors refer to as the “problematic legitimacy” of clinical legal education. (Educating Lawyers, at 89). “The standard is so securely established that there are few leverage points from which to effect change to the model.” (Educating Lawyers, at 90). Certainly such change is impossible if inconsistent within the values structure of university organization. The authors, drawing on earlier reforming efforts (Educating Lawyers, at 91-95), propose to change the dynamic indirectly, by changing the way in which clinical education is valued, and then integrating this segment of legal education within the doctrinal mainstream. (Id., at 100-111). The core of that argument is based on an argument that privileges teaching case theory (Id., at 124-125), that is “the lawyer’s task of understanding the client’s needs and constructing a strategy to address those needs.” (Id., at 122).

The last building block of an integrated approach to legal education focuses on issues of professional identity and purpose. Lawyers are demoralized and their reputation is diminishing. The author’s ascribe this to a disconnection with morals and values on which the profession was and ought to continue to be grounded. (Educating Lawyers, at 126-131). But it is also possible that the demoralization arises as a consequence of the instability in the self-identification of a profession that no longer serves, as in Coke’s day, as the guardian of the common law against both the state and the individual. Instead, as agents of a state which has increasingly absorbed lawmaking power, the lawyer finds herself between professions. In a sense, Educating Lawyers acknowledges both this transitional dilemma and the ultimate new source of equilibrium—grounded in the mission of the university law school to retool the lawyers it produces for their new role in society. (Educating Lawyers, at 131-132). This requires a dialogue between the moral and the legal, for which the authors provide an example from contracts law. (Educating Lawyers, at 142-144). Uniting cognitive, practical and ethical-social development requires a broad range of courses that take students from a passive role as the imbibers of doctrine to externship courses that permit them to try out what they have learned. (Id., at 147). The relationship between these integrative approaches based on both the infusion of ordinary classes with social and ethical issues and the development of more ethically charged courses radiating from out of the traditional course in professional responsibility is also explored. (Id., at 151-158).

Lastly, Educating Lawyers tackles issues of measurement. There is a bit of irony here. For it is measurement, in part, that has brought the profession (and by that I mean the profession of legal education) to this impasse and the tensions with its traditional principal professional stakeholder—the bar. The slew of private rankings—and the important real life effect of these private efforts—evidences a pervasive academic culture of ranking. Hierarchy, subordination, judgment are key features of academic culture. It is no wonder that they carry over to the pedagogy offered to train students. Without reform in the way in which law schools create their own hierarchies, and subordinate, there can be little real hope for change in the way law schools assess their own work products. Still, Educating Lawyers makes a case against single end of semester examinations (Id., at 167), and grading on the curve. (Id., at 168-170). Drawing from related professions, Educating Lawyers makes a case for change. (Id., at 171-179). They favor what they call institutional intentionality: “linking feedback to students with feedback from students about how well they are achieving the learning goals for the course.” (Id., at 180).

Putting this all together, the authors of Educating Lawyers warn against treating their suggestions as an additional component to be added to the curriculum of legal education. They warn that the point is to avoid both the segregation of professionalism and ethical components in legal education. (Id., at 190-191). But there is tension here between the elegance of conclusions demanded by following theory to its end and the realities of an academy unlikely to want to change very much in ways that negatively affect theior individual or collective interests. Thus, the authors make a case for clinical legal education is also made (Id., at 120-122), yet make clear their preference for an integration model is preferred. They put it this way: “we endorse a different strategy, which we call integrative rather than additive. . . . The core insight behind the integrative strategy is that effective educational efforts must be understood in holistic rather than atomistic terms.” They warn that “[l]egal scholarship has generated a succession of bold, even radical, new ways of understanding the law, but this kind of scholarly innovation has proved entirely compatible with a stable, even conservative orientation toward educational practice and is part and parcel of an orientation that privileges the cognitive apprenticeship in its present, stand alone configuration.” (Id., at 192). For this purpose, “the common core of legal education needs to be expanded in qualitative terms to encompass substantial experience with practice, as well as opportunities to wrestle with the issues of professionalism.” (Id., at 195). In that context, educational climate matters. “The goal should be to create a campus culture that is a positive force.” (Id., at 183). It is clear that this can be done. But again there is cognitive dissonance. Law schools will have to pay much attention to reforming the climate among faculty and between faculty and administration, if they mean to be successful in changing the educational climate generally. Faculties are likely to reproduce for their students the academic climate in which they operate. What seems like an innocuous and separable component, thus suggests complexities untouched by the authors of Educating Lawyers.

But integration is costly. The authors of Educating Lawyers tacitly acknowledge the power of the university model in describing the skill sets necessary to effect the integrative model they propose. (Id., at 202). A principal effect of the move to a university norm set has been to denigrate the practice experience of applicants for teaching positions. In many cases, too much experience is sometimes deemed to poison the candidate for a successful academic career. The idea, roughly, is that people too long in practice have too deeply imbued the values and norms of the bar and will not be able to successfully transition to the norm structure of the university—requiring a focus on doctrine and writing. And thus, “Faculty development programs that consciously aim to increase the mutual understanding of doctrinal and lawyering faculty of each other’s work are likely to improve students’ efforts to make integrated sense of their developing legal competence.” (Id., at 196). All must come to accept a common educational purpose and bend their efforts to that objective. Faculty with different strengths must “work in a complementary relationship.” (Id., at 197).

The study ends with a suggestion of law school steps in the right direction. The models proffered include that of New York University and CCNY, which, in different ways seek “to bring the three aspects of legal apprenticeship into active relation.” (Id., at 197). One alternative seeks to leverage the de facto division of talent (doctrinal faculty who are not lawyers, and lawyers who are in charge of clinical courses) within the university to construct webs of courses that are linked in a way that privilege the three areas of legal training. (Id.). The programs at N.Y.U. are also described in some detail elsewhere. (Id., at 38-43). That approach works for large law schools with substantial resources and an institutional framework that permits an adequate administration of programs of this sort of complexity. Cost is certainly an obstacle. (Id., at 198). And this sort of leverage is necessitated by the privileging of the normative structure of the university that tends to privilege “a distinguished well published faculty that includes leaders of the field.” (Id., at 38). Of course, the field no longer necessarily includes the bench and bar, but the community of academic scholars. (Backer 2002). Another alternative involved a greater investment in integration within the curriculum. That required less attention to leveraging differences in talents and more on more broadly changing the focus of the curriculum. (Id., at 197). The programs at CCNY are described earlier. (Id.,, at 34-38). Yale is cited for its decision to reduce the number of doctrinal courses “and encouraging students to elect an introductory clinical course in their second semester.” (Id., at 197). This is said to point to an intermediate strategy, “a course of study that encourage students to shift their focus between doctrine and practical experience not once but several times, so as to gradually develop more competence in each area while, it is hoped, making more linkages between tem.” (Id.). The programs at Southwestern law School are also identified as failing in this category—these involve some curricular changes. (Id., at 198).

Reduced to its essence, then, Educating Lawyers, as a theoretical exercise, seeks to find a space within university centered and positivism focused academic law for the resulting new realities of law and the responsibilities of the profession. More importantly, as methodology, Educating Lawyers seeks to privilege certain specific principles of legal education. Foremost among them is the integrative principle of education over an additive or compartmentalized approach to legal education. Also important is the tacit acceptance of significant class divisions within legal education—what may be appropriate for “top tier” schools may be beyond the abilities, or even the ambitions, of lower ranked schools. To each class of law school belongs a different level of acceptable approaches to integration. In the language of Educating Lawyers, for every New York University, there is a CCNY, for every Yale Law School there is a Southwestern Law School. For those who still cling to the principle of equality among law schools—of horizontal rather than vertical professional organization, this might be disquieting, but only makes explicit what has been implicit for years. As a consequence, there is a bit of flexibility. But it is grounded in academic reputation and resources. Lastly, Educating Lawyers acknowledges that law schools are incapable of great changes in short order—they can act only incrementally. (Id., at 189-191). Changes have to be adapted to that reality, but ought not to settle for incrementalism as a goal in itself. Partial changes must lead to an holistic objective. (Id., at 191).

Yet at the same time, Educating Lawyers is about nothing if not about both incrementalism and the additive principle of changes to legal education. Faculties will read this work. They will debate its propositions. They will dissect the arguments—at least the micro arguments relating to technique. But the larger issues raised at the beginning of the work will be ignored; and for good reason. There is little that can be done about tectonic changes beyond the control of any one individual or any one institution. And so we are reduced not only to method, but also to formalism. We have become creatures of gesture—as Nietzsche once mocked. And so Educating Lawyers will generate tremendous smoke. But it will produce little fire. The dynamics of institutional change within the academy has been liberated from the bar. That is the great insight from Educating Lawyers. Patches will keep the relationship alive for a while longer, at least until there arise in the United States formal bar sanctioned training schools for lawyers. At that point academic law will become as free from the practice of law, as law making in the United States has become free from its “primitive” common law past.

Reference List

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The Church of England Speaks to the Relationship Between Law and Religion

The Church of England has been quite restive of late. For a long time a sleepy place, theologically speaking, it wore like an old shoe. No more it seems. The Church of England has become a much more interesting site of development of notions about law , religion and the state. Still reeling over the imbroglio over gay clergy, which appeared to veer the Church of England strongly to the "left," and continues to threaten to split the Church, it spiritual leader now has taken a sharply conservative turn in the matter of the Church as lawmaker. Not the Church of England, of course, but in the name of Islam.

Part of the "burden and the privilege of being the Church" in the UK meant, Dr Williams said, the clergy needed "some coherent voice on behalf of all the faith communities living here". "If we can attempt to speak for the liberties and consciences of others in this country - as well as our own - we shall, I believe, be doing something we as a church are called to do in Christ's name: witnessing to his Lordship, not compromising it." The relationship between law and religion was a subject on which "Christians and people of other faiths ought to be doing some reflecting together", he added.”

Archbishop Defends Sharia Remarks, BBC Online, Feb. 11, 2008. This is a neat trick--hiding behind Islam to further a reinvigoration of the Church of England as a legislative force in the United Kingdom--at last for its members (that seems to be the price. But well worth it--all religions can profit as long as they take from the state and not each other.

Well, what is the fuss about? It seems that the Church of England is now suggesting something of an institutionalization in the fracture of law in the United Kingdom. The new demos is constituted as religious communities; each, as in the days before the rise of the strong centralized political state, responsible for the welfare of the members of its community. "So how does the law engage critically and intelligently - the law of the land - with the custom, the imperatives, the principles of distinctive religious communities?" In Full: Rowan Williams Interview (The full text of the exclusive interview of the Archbishop of Canterbury to BBC Radio 4's World at One reporter Christopher Landau on 7 February 2007), available http://news.bbc.co.uk/2/hi/uk_news/7239283.stm. The Archbishop of Canterbury chose to be somewhat provocative in getting to the answer to the question he posed: “It seems unavoidable and indeed as a matter of fact certain provisions of Sharia are already recognised in our society and under our law. So it's not as if we're bringing in an alien and rival system.” In Full: Rowan Williams Interview.

This statement caused a bit of a furor. Reaction in Quotes: Sharia Law Row, BBC Online, Feb. 8, 2008. And a defense by both the Prime Minister and the Archbishop himself. Williams in Synod Sharia Address, BBC New Online, Feb. 11, 2008. Jonny Paul, Archbishop Faces Church Synod Over Shari'a Comments, The Jerusalem Post, Feb. 12, 2008 ("several members of the General Synod called for Williams to step down. Colonel Edward Armitstead, a Synod member from the diocese of Bath and Wells, urged him to return to academia instead of leading the Anglican Church. He said of Williams: 'I don't think he's got the gift of leadership that the church needs.'"). The Blogosphere was less kind: The Archdhimmi Speaks Out, Who Will Rid of of that Idiotic Priest. But the establishment was far kinder. Jonny Paul, Archbishop Faces Church Synod Over Shari'a Comments, The Jerusalem Post, Feb. 12, 2008.

But what was it that the good Archbishop was proposing? He starts by suggesting that the notion of Sharia within England is innocuous and falls within current legal practice. “We already have in this country a number of situations in which the law - the internal law of religious communities - is recognised by the law of the land as justifying conscientious objections in certain circumstances.” In Full: Rowan Williams Interview.

“We have orthodox Jewish courts operating in this country; not to mention the issues as I mentioned earlier - not to mention the questions about how the consciences of Catholics, Anglicans and others who have difficulty about issues like abortion are accommodated within the law; so the whole idea that there are perfectly proper ways in which the law of the land pays respect to custom and community; that's already there.” Id.

Rowan Williams suggests that though there is no complete and precise consensus of the meaning of Sharia, he did not mean to suggest the importation of the Sharia law systems of certain Muslim majority states. And in particular, he suggested that in the area of the treatment of women, Sharia needed some sprucing up. “I think one of the points again that's come up very interestingly in recent discussion between Muslim and other legal theorists is the way in which in the original context of Islamic law, quite often provisions relating to women are more enlightened than others of their day; but you have to translate that into a setting where actually that whole area, the rights and liberties of women has moved on and the principle, the vision, which animates the Islamic legal provision needs broadening because of that.” Id.

Yet Rowan Williams also suggests that it is precisely in the area of family law that the U.K. legal system ought to make room for Sharia, both as jurisprudence and as free standing judicial system. “I'm simply saying that there are ways of looking at marital dispute, for example, which provide an alternative to the divorce courts as we understand them. In some cultural and religious settings they would seem more appropriate.” Id. But, the Archbishop backstops by suggesting that such system remain voluntary. “I think it would be quite wrong to say that we could ever licence, so to speak, a system of law for some community which gave people no right of appeal, no way of exercising the rights that are guaranteed to them as citizens in general, so that a woman in such circumstances would have to know that she was not signing away anything for good and all.” Id.

Thus, Rowan Williams seems to be suggesting a sort of inferior domestication of Sharia within closely confines boundaries. He also suggests the necessity of bringing Sharia within the Western discourse of values. That was a notion indirectly suggested in his earlier comments on the treatment of women in Sharia but made more explicit in his reaction to a suggestion by the European Court of Human Rights that declared an incompatibility between human rights and Sharia:

“I think there is a real question about how the discourse of human rights relates to traditional idioms of Islamic law; a real discussion, and there's a lot of literature about that, but I don't think we should instantly spring to the conclusion that the whole of that world of jurisprudence and practice is somehow monstrously incompatible with human rights simply because it doesn't immediately fit with how we understand it, and as I said earlier, it's not something that's absolutely peculiar to Islam.” Id.

The Archbishop’s thinking becomes clearer at this point—there is a taming issue. Suppression doesn’t work, but perhaps absorption and assimilation might. There is a sense that Rowan might be seeking a kinder and gentler form of Sharia within the welcoming embrace of British cultural and legal values. Law, culture and religion and their interconnection become a valuable tool: “now that principle that there's one law for everybody is an important pillar of our social identity as a Western liberal democracy, but I think it's a misunderstanding to suppose that that means people don't have other affiliations, other loyalties which shape and dictate how they behave in society and that the law needs to take some account of that. An approach to law which simply said: "There is one law for everybody and that is all there is to be said." I think that's a bit of a danger.” Id.

Law, Rowan Williams suggested ought not to be an impediment to that effort. What appears to be a fragmentation of law, then, becomes its opposite—a means of taming and assimilating other legal traditions (and the religions behind them). Thus, he declares: “I do want us to have a proper way of talking about shared citizenship, whatever we say about religious allegiance we have to have that common ground and we have to know what belongs there.” Id. Likewise, the connection between law and assimilation is made clear: “Now, I think there are ways of doing that for example in relation to our education system, ways of doing that in connection with local federations and networks of different communities working together for common objectives - many ways in which that active citizenship can be promoted.”

Thus the trick! Rowan Williams is not suggesting assimilation by the back door. By suggesting management through absorption--a sort of controlled fragmentation where disparate systems can be absorbed and controlled through engagement within a legal institutional structure favoring the majority community--the Muslim community can be tamed within its own institutional constructs. "So I don't think that recognising the integrity or independence - the depth of the reality of religious communities - is to commit yourself to a kind of ghettoized future, not at all." In Full: Rowan Williams Interview. Perhaps Muslims cxan be made into a nice, if somewhat esoteric dissenter community--like the Jews. Domesticated and absorbed, stripped of the bumps and prickles that makes a muscular Islam distinct (and incompatible with Christianity based Western law), Islam can be welcomed in as another subordinate building block of Enlightenment society in Europe and the Americas. “I think, want a situation where because there's no way of legally monitoring what communities do, making them part of public process, people do what they like in private in such a way that that becomes another way of intensifying oppression within a community and that happens, that happens.” Id.

Perhaps it will work. In this endeavor Rowan Williams adds his voice to notable segments of the American and European elite desperate to find a way to institutionalize a "soft" Islam that looks like the "soft" Christianity and Judaism that modern Western states are used to dealing with and which constitute an acceptable sub-framework for inclusive law systems. See Larry Catá Backer, Religion in the Service of the State: Schools of "Soft Islam" in Britain , Law at the End of the Day, Aug. 22, 2007.

Even if the good Archbishop has something more interesting in mind--a return to prominence of religion in the construction of law systems affecting the entire nation, the thrust of the interview does not suggest a domination by Sharia--rather it suggests a pattern that might return the Church of England to its old role in the state. And thus an interesting underlying (subconscious perhaps) substream to the discourse of the good Archbishop--in a secular state made of of different religious legal regimes, there must be a hierarchy of law established--especially when dealing with those issues that cross legal borders. Taking Rowan Williams at his most expansive, these transborder issues could even include, at their limit: (1) conversion; (2) family law involving couples of mixed faith; (3) contracts among members of different religious communities and the like. And in England, the Church of England would be at the top of the heap--at least until demographics dictates a different result. Secular law might then be reduced to its choice fo law elements, both vertically and horizontally, with secular law the arbiter between systems of religious law in which the law of the dominant religion sits on top. Absurd! Yes, of course, at its limit, but not at the margin. The Church of England is hardly suggesting systems patterned after those in Malaysia or India or Iran. The close examination of the interview makes that clear. But he is suggesting a closer relation between Church and state (or at least state as a source fo law): "If we can attempt to speak for the liberties and consciences of others in this country - as well as our own - we shall, I believe, be doing something we as a church are called to do in Christ's name: witnessing to his Lordship, not compromising it." Williams in Synod Sharia Address,

For those who find this a bit of hysteria, it might be useful to remember that the West has been seeking to do just this as its elites attempt to fashion a tamed religion sitting atop ostensibly secular systems in the Middle East. What might be good for the goose. . . . . See Larry Catá Backer, Of Political States and "Soft" Religion as the Basis for State Organization, Law at the End of the Day, July 16, 2007. Perhaps this was best put by

David Gifford, chief executive of the Council for Christians and Jews, told the Post he had not understood Williams's statements as advocating for Shari'a law as a parallel legal system in Britain. "The issue is inflammatory, perhaps because people associate Shari'a with the oppressiveness of harsh regimes, beheading and stoning," he added. "If the Shari'a system adopted by the Muslim community in Britain worked as does the [rabbinical] Beit Din, completely within and under British law, there would seem to me to be little to argue against. The question, though, is would Shari'a in Britain operate like the Beit Din?"

Jonny Paul, Archbishop Faces Church Synod Over Shari'a Comments, The Jerusalem Post, Feb. 12, 2008. A well behaved and "Jewish" Muslim community appears to be the ideal. It is not clear that the student is ready to undergo this lesson either in Britain, or in the dar al-Islam. It is not clear why it should, except to please the West. But it is also not clear why the West ought to treat any religion with special deference within its own territories. In the complex game of secularism versus religion and the contest for the moral high ground among religions, the Archbishop seeks a well behaved and subordinate Islam. It is not clear that absent more forceful moves, and a significantly more elaborate effort at assimilation, that he will get what he wants to tried so subtly to express.