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

Elites for some time have amused themselves by disparaging both the coherence and relevance of American law. Yet American law and legal education continues its march across the globe, triumphantly displacing indigenous forms of approaches to law and legal education in the most unlikely of places.     And now this triumphant march through the world has wended its way home.  Building on the heels of an earlier report, the 2009 Report of the Special Committee on International Issues (chaired by Justice Elizabeth Lacy), that highlighted the need for the appropriate assimilation of foreign lawyers into the American system, a special American Bar Association committee has suggested that the ABA accredit foreign law schools.  See  American Bar Association, Report of Special Committee on Foreign Law Schools Seeking Approval Under ABA Standards, July 19, 2010.

This Special Committee was appointed on June 10, 2010 and asked to report to the Council of the Section of Legal Education and Admissions to the Bar at its August 2010 meeting on the policy questions surrounding the question whether law schools located outside the United States or its territories, which have modeled their educational programs on the American model, should be allowed to seek accreditation under the governing Section Standards and Rules of Procedure for Approval of Law Schools. Id., at 1.

The Committee, composed of Mary Kay Kane (Chair), Elizabeth Lacy, Dennis Lynch, Randall Shepard, and David Tang, divided its Report into three parts.

The first discusses the policy implications and justifications for expanding the accreditation role of the ABA Section to encompass law schools located outside the United States or its territories. The second considers what special rules or concerns might need to be addressed should the Council determine to proceed to consider applications coming from such law schools. . . . Finally, the report concludes with a series of recommendations.  Id., at 1-2.

 The Committee made four recommendations.  First, the accreditation project should go forward.  Second, the actual accreditation standards should be reviewed and revised to avoid any barriers to this geographic expansion.  Third, a policy statement ought to be drafted to ensure the central place of American law, the English language, a faculty made up primarily of recipients of U.S. J.D.s, and an American pedagogy in these foreign accredited schools.  Lastly, the Committee recommended to trail run from a model school that might provide the acceptable template for this form of expansion.  Report, supra, at 8.

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

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

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

Yet some of these powerful incentives to move forward with this enterprise from the American perspective might provide a caution to those on the receiving end of the transaction.  It is not too long a path from harmonization to subordination and from guidance to domination.  These efforts can be as intrusive in host states as the erection of military bases--and more effective because they are meant to be open and inviting rather than walled off and secured.  On the other hand, the process suggests partnership.  It is as likely that a great infusion of foreign voices into American programs will change the Americans as it will acculturate the foreigners.  American culture is particularly susceptible to foreign influence--but American tend to absorb foreign influences and naturalize them within its own culture rather than avoid them as threats, at least int he long run. Yet its effect on domestic markets for law and legal education within host states remains a topic that is sorely neglected in the Report-

 

The Council on Legal Education and Admissions to the Bar will consider the recommendations in December, and is seeking comment. Comments should be e-mailed by Oct. 15 to legaled@staff.abanet.org under the heading of "Foreign Law Schools." I would urge those interested, especially members of faculties from foreign (non-U.S. jurisdictions) to participate in the conversation this report has opened by responding to the ABA and broadening the discussion to those stakeholders not necessarily privy to the ABA's governance project. 

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

(Pix (c) Larry Catá Backer)

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

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

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

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

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


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

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

From the Course Catalog:

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

What does this mean?

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

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

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

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

COURSE MATERIALS

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

REQUIRED:

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

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

Materials to be distributed electronically.

RECOMMENDED:

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

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

COURSE ORGANIZATION

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

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

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

GRADING

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

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

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

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

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

Participation 20%
Mid Term 30%
Final Exam 50%

Academic honesty and integrity is expected under the rules of the DSL Honor Code, available http://www.law.psu.edu/Honor/Contents.cfm.


SYLLABUS

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

August 25: International Institutional Law as Transnational Law
-- Larry Catá Backer, Principles of Transnational Law: The Foundations of an Emerging Field, Law at the End of the Day, March 9, 2007, available http://lcbackerblog.blogspot.com/2007/03/principles-of-transnational-law.html.
-- Philip C. Jessup, Transnational Law (New Haven: Yale University Press, 1956), pp. 1-16.
-- Peer Zumbasen, Transnational Law, CLPE Research Paper 09/2008 Vol. 04(2). Available http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1105576.
-- Craig Scott, “Transnational Law” as Proto-Concept: Three Conceptions, 10(7) German Law Journal 859 (2009). Available at http://www.germanlawjournal.com/article.php?id=1147.
-- Reza Dibadj, Panglossian Transnationalism, 44 Stanford Journal of International Law 253 (2008). READ PP: 256-72 (PART II).
-- Anders Esmark, The Functional Differentiation of Governance: Public Governance Beyond Hierarchy, Market and Networks, Public Administration Vol. 87(2): 351-370 (2009). READ PP. 353–356

August 30: Strong States and their constitutions
--Larry Catá Backer, God(s) Over Constitutions: International and Religious Transnational Constitutionalism in the 21st Century. Mississippi Law Review, Vol. 27, 2008. Available at SSRN: http://ssrn.com/abstract=1070381.
--Larry Catá Backer, Economic Globalization Ascendant: Four Perspectives on the Emerging Ideology of the State in the New Global Order. University of California, Berkeley La Raza Law Journal, Vol. 17, No. 1, 2006. Available at SSRN: http://ssrn.com/abstract=917417.

September 1: Weak States
-- Peter T. Leeson and Caludia R. Williamson, Anarchy and Development: An Application of the Theory of Second Best, Law & Development Review 2009.
-- Ken Menkhaus, Governance Without Government in Somalia: Spoilers, State Building and the Politics of Coping, International Security 31(3): 74- 106 (2007). READ PP: 83-93
-- Larry Catá Backer, Of Somali Pirates, Global Corporations and the State: Governance Without Government, Government without a State and Military Power, Law at the End of the Day, June 28, 2009
(http://lcbackerblog.blogspot.com/2009/06/of-somali-pirates-global-corporations.html).
-- Larry Catá Backer, Regulating Global Capital Markets: Somali Pirate Capital Markets, the South Sea Bubble and the Limits of Law, Law at the End of the Day, Jan. 1, 2010.
(http://lcbackerblog.blogspot.com/2010/01/21st-century-has-seen-its-share-of.html )
-- Christopher Jasperro, Somalia’s Piracy Offers Lessons in Global Governance, Yale Global Online, April 6, 2009.
(http://yaleglobal.yale.edu/content/somalia%E2%80%99s-piracy-offers-lessons-global-governance)
--Team presentations:
Team A—Kosovo
Team B—Palestine
Team C—Congo
Team D—Afghanistan
Team E—Lebanon
Team F—Haiti
Team G—Mexico

September 6: NO CLASS

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

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

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

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

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

September 27: The International Court of Justice
--The ICJ at a Glance
--ICJ General FAQs
--ICJ Advisory Opinion FAQs
--Medellin v. Texas,
--Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, ICJ, July 22, 2010, Gen, List No. 141 (Advisory Opinion). Available http://www.icj-cij.org/docket/files/141/15987.pdf.

Optional Reading
-- Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory Advisory Opinion 2004 July 9 General List No. 131 (July 9, 2004) (available http://www.icj-cij.org/docket/files/131/1671.pdf). The opinion is very long. Please read Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Request for advisory opinion) Summary of the Advisory Opinion of 9 July 2004 (http://www.icj-cij.org/docket/addHit.php?summaryID=41&case=131&lang=en) and then focus on

1. Jurisdiction: Paragraphs 14-15, 24-25, 36, 38, 40.
2. Consent: Paragraphs 46-47, 49.
3. Legal Basis: Paragraphs 86-89, 102-111 (especially 89 on jus cogens)
4. Application of Law: Paragraph 115 (de facto annexation) versus Paragraph116 (proportionate anti-terrorism measures).
5. Legal Consequences: Paragraphs 148-158.
6. Remedies: Paragraph 159-160.

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

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

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

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

October 13 NO CLASS

October 18: States as Private Actors—Sovereign Wealth Funds and SOEs
--Larry Catá Backer, Sovereign Investing in Times of Crisis: Global Regulation of Sovereign Wealth Funds, State Owned Enterprises and the Chinese Experience. Transnational Law & Contemporary Problems, Vol. 19, No. 1, 2009; Penn State Legal Studies Research Paper No. 12-2009. Available at SSRN: http://ssrn.com/abstract=1444190.
--International Working Group of Sovereign AWealth Funds, Generally Accepted Principles and Practices (GAPP)—Santiago Principles. Available for download at http://www.iwg-swf.org/pubs/gapplist.htm.
--OECD Guidelines for SOEs. Available http://www.oecd.org/document/33/0,3343,en_2649_34847_34046561_1_1_1_1,00.html.

October 20: Class Exercise—Applying the Norwegian Ethics Rules
--Larry Catá Backer, Sovereign Wealth Funds as Regulatory Chameleons: The Norwegian Sovereign Wealth Funds and Public Global Governance Through Private Global Investment (May 4, 2009). Georgetown Journal of International Law, Vol. 41, No. 2, 2009. Available at SSRN: http://ssrn.com/abstract=1398835.

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

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

November 1: Regional Trade Organizations
-- Jo-Ann Crawford and Roberto Fiorentino, The Changing Landscape of Regional Trade Agreement, World Trade Organization Discussion Paper No. 8 (2005). READ PARTS I& II pp. 1-16.
--Daniel Lederman, William F. Maloney & Luis Servén, Lessons From NAFTA for Latin America and the Caribbean, Stanford University Press, 2005. PP. 1-27.
-- Welber Barral, Dispute Settlement and Legal Harmonization in MERCOSUR, in Harmonizing Law in an Era of Globalization: Convergence, Divergence and Resistance (Larry Catá Backer, ed., Durham, NC: Carolina Academic Press, 2007).
--Larry Catá Backer and Augusto Molina, Cuba and the Construction of Alternative Global Trade Systems: ALBA and Free Trade in the Americas (May 20, 2009). University of Pennsylvania Journal of International Economic Law, Vol. 31, No. 3, 2010. Available at SSRN: http://ssrn.com/abstract=1407705.

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

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

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

November 15: Multinational Corporations as IOs
-- Larry Catá Backer, Multinational Corporations as Objects and Sources of Transnational Law, 14 ILSA Journal of International and Comparative Law499 (2008). http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1092167. 

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

November 22 THANKSGIVING BREAK

November 24 THANKSGIVING BREAK

November 29: Multinational Corporations as Objects of IO Regulation: OECD and UN
--Larry Catá Backer, Rights and Accountability in Development (Raid) V Das Air and Global Witness V Afrimex: Small Steps Toward an Autonomous Transnational Legal System for the Regulation of Multinational Corporations (June 30, 2009). Melbourne Journal of International Law, Vol. 10, 2009. Available at SSRN: http://ssrn.com/abstract=1427883.
--Larry Catá Backer, On the Evolution of the United Nations’ 'Protect-Respect- Remedy' Project: The State, the Corporation and Human Rights in a Global Governance Context (June 3, 2010). Santa Clara Journal of International Law, Vol. 9, No.1, 2010. Available at SSRN: http://ssrn.com/abstract=1619939.

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

December 6: Introduction to Polycentricity in Governance
--Larry Catá Backer, Private Actors and Public Governance Beyond the State: The Multinational Corporation, the Financial Stability Board and the Global Governance Order,17 Indiana Journal Global Legal Studies (forthcoming 2011). Available http://ssrn.com/abstract=1658730.
-- Anna di Robilant, Genealogies of Soft Law, 54 AMERICAN JOURNAL OF COMPARATIVE LAW 499 (2006).

December 8: Complexity: Trade, States, Corporations and Human Rights
--Larry Catá Backer, Globalization and the Socialist Multinational: Cuba and ALBA’s Grannacional Projects at the Intersection of Business and Human Rights (August 1, 2010). Available at SSRN: http://ssrn.com/abstract=1646962.

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

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

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

Accelerate and improve Party reconstruction according to the demands of the 'Three Represents', 2002

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

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

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

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

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

Developing a New Course--"Elements of Law"

Last year the law faculty at Penn State approved the creation of a new concept course, to be named "Elements of Law".  Its description was  meant to be general, to provide faculty with some space to develop concepts and ideas for a course on "meta-principles" either of the applied or theoretical kind.

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

These efforts are in line with those of many other American law schools that  seek some sort of bridge course between the undergraduate studies of most of its students and the peculiar norm-world of law.  In many places, these sorts of efforts focus on the lawyer's craft, offering courses in statutory interpretation, legal methods, legislation, legislation, or the like.  In other places the focus is more theoretical,  focusing on theories of law, justice or jurisprudence. 

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

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

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

ELEMENTS OF LAW
COURSE INFORMATION

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

READING ASSIGNMENTS:

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

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

RECOMMENDED:
1. Materials may be identified from time to time in class as supplemental materials for further reading by students.

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

GRADING

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

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

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

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

Class participation is required. All students are expected to be prepared for each class session (that is, to have carefully read the materials assigned). That does not mean that you are expected to ‘know’ any particular ‘answers.’ Participation does not mean having the ‘right’ answers to the questions we discuss. Participation requires only that you have read and thought about the materials to be discussed and that you are prepared to engage in a give and take about the ideas, problems and conundrums raised by the issues we investigate. I reserve the power to adjust your final grade to reflect what in my sole judgment will have been either outstandingly good or bad participation.

Class Notes and Recording of Class. Please feel free to get together with your classmates for studying and sharing notes. It is sometimes efficient. Take such notes as you desire. All classes will be recorded and all of the recordings will be posted on the course ANGEL site for access by any student enrolled in the course. You are authorized to use class recordings only for your own study and review. However, you may not copy or download any class recording. Copying, downloading, dissemination, publication in any format or alternation of any class recording constitutes unauthorized use, is not permitted, and is a violation of the Honor Code. No personal recording of class.

CONFERENCES

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

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

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


SYLLABUS
Preface to Materials

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

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


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

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

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

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

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

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

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

(1) The differences between customary or common law, statutory or positive law, and emerging forms of governance;

(2) A working knowledge of basic sources of law (constitutions, statutes, treaties, etc.), hierarchies of law (the relationship between constitution, statutes, caselaw, treaties, etc.), and the role of law) and the role of law (as a function of state action or as an autonomous set of norms);

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

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

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

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

(7) Working knowledge of issues of statutory interpretation.

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

Detailed Syllabus

I. What is Law

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

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

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

D. Surveillance, Monitoring, Disclosure, Governmentality
-- Backer, Larry Catá, Global Panopticism: States, Corporations and the Governance Effects of Monitoring Regimes. Indiana Journal of Global Legal Studies, Vol. 15, 2007. READ pp. 101-138
Available at SSRN: http://ssrn.com/abstract=1081242
--Michael Reed, From the ‘Cage’ to the ‘Gaze’? The Dynamics of Organizational Control in Late Modernity, in Regulation and Organizations: International Perspectives 17 (Glenn Morgan & Lars Engwall eds., 1999). READ 28-31.
Optional Text
--Michel Foucault, Governmentality, in The Foucault Effect: Studies in Governmentality 87 (Graham Burchell, Colin Gordon & Peter Miller eds., 1991).

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

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

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

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

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

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

A. The General Government
1. Division of Power: (a) Executive; (b) Legislative; (c) Judicial
2. Separation of Powers and Checks and Balances
--Youngstown Sheet & Tube Co. v. Sawyer (The Steel Seizure Case), 343 U.S. 579 (1952).

B. The Administrative Branches: The Non-Delegation Doctrine, An Introduction
--Mistretta v. U.S., 488 U.S. 361 (1988).

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

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

IV. The Role of the Courts:

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

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

C. How Courts Engage With Law: Theories of Judicial Interpretation
--Larry Catá Backer, Retaining Judicial Authority: A Preliminary Inquiry on the Dominion of Judges, 12 William & Mary Bill of Rights Journal 117 (2003). READ 152-72. Available http://papers.ssrn.com/sol3/papers.cfm?abstract_id=379460

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Corporate Responsibility to Respect Human Rights and Corporate Catastrophe--The BP Oil Spill and Human Rights Due Diligence

In 2005, the then United Nations Human Rights Commission requested the UN Secretary-General to appoint a Special Representative (SRSG) with a mandate to do the following:

(a) To identify and clarify standards of corporate responsibility and accountability for transnational corporations and other business enterprises with regard to human rights;
(b) To elaborate on the role of States in effectively regulating and adjudicating the role of transnational corporations and other business enterprises with regard to human rights, including through international cooperation;
(c) To research and clarify the implications for transnational corporations and other business enterprises of concepts such as “complicity” and “sphere of influence”;
(d) To develop materials and methodologies for undertaking human rights impact assessments of the activities of transnational corporations and other business enterprises;
(e) To compile a compendium of best practices of States and transnational corporations and other business enterprises.

The mandate also requested the SRSG to provide “views and recommendations” in relation to these issues for consideration by the Commission.

Since then, John Ruggie, the United Nations Secretary General's Special Representative for Business and Human Rights has been developing a framework for the incorporation of human rights into the institutionalized governance behaviors of states and corporations.  The resulting three Pillar framework, based on a state duty to protect human rights, a corporate responsibility to respect human rights and an obligation of both to provide remedies for  has proven to be increasingly influential. The SRSG has noted that

the U.N. Framework has already enjoyed considerable uptake, interacting with a range of processes well beyond the United Nations itself. These include the ISO26000 standard on social responsibility, the updating of the OECD guidelines for multinational enterprises, the International Finance Corporation revision of their Performance Standards, work with 19 leading law firms from around the world on how human rights considerations are addressed in corporate law across 40 jurisdictions, as well as road-testing of company-based grievance mechanisms by leading companies in China, Colombia, Russia, South Africa and Vietnam.  John Ruggie,  The Corporate Responsibility to Respect Human Rights, The Harvard Law School Forum on Corporate Governance and Financial Regulation  May 15, 2010. 

One of the most innovative parts of the Three Pillar framework is the corporate responsibility to respect human rights.  The latest elaboration of the corporate responsibility to respect was set oput in the SRSG's 2010 Report.  See, Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, John Ruggie, Business and Human Rights: Further steps toward the operationalization of the “protect, respect and remedy” framework, A/HRC/14/27, Human Rights Council, 14th session, Agenda item 3, Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development (hereafter the 2010 Report). In a review of its discussion of the corporate responsibility I noted (Larry Catá Backer, A Consideration of John Ruggie's 2010 Report to 14th session of UN Human Rights Council: "Business and Human Rights: Further steps toward the operationalization of the 'protect, respect and remedy' framework", Law at the End of the Day, May 1, 2010):

The corporate responsibility to respect is offered as both contrast and supplement to the state duty to protect human rights.[9] Companies have a fundamental responsibility to comply with the laws of all host states.[10] This obligation exists even in the absence of a government (in which case the company is expected to fill the void).[11] It poses special problems where national law conflicts with international standards, a problem the solution to which remains elusive. [12] But actions that affect human rights may also collaterally affect the ability of a company top comply with law, producing community resistance that may delay otherwise lawfully operating companies.[13] Lastly, blind compliance with local law might expose companies to complicity in state violations of international human rights norms.[14]

The limitations on a company’s obligations to comply with local law in all circumstances suggests the key characteristic of the corporate responsibility to respect human rights: its autonomy from both domestic law systems and from the state. The SRSG continues to emphasize that “responsibility exists independently of States’ human rights duties. It applies to all companies in all situations. ”[15] This responsibility exists with respect to all actors with whom the corporation interacts.[16] It is framed by the International Bill of Rights combined with the ILO core Conventions,[17] but not limited to the principles contained therein.[18] Yet the SRSG resists expanding the scope of the responsibility to respect human rights to something more positive. Reflecting concerns about the democratic legitimacy of corporate control of political policy within states, the SRSG suggests that such a role would substitute the corporation for the government of a state.[19]

What the SRSG does posit as a positive obligation in the context of the responsibility to respect is the obligation to undertake and disclose the products of internal and external due diligence.[20] “Human rights due diligence can be a game-changer for companies: from “naming and shaming” to “knowing and showing.” Naming and shaming is a response by external stakeholders to the failure of companies to respect human rights. Knowing and showing is the internalization of that respect by companies themselves through human rights due diligence.”[21] The SRSG elaborates the way in which such due diligence is to be undertaken. He suggests four basic components of due diligence,[22] and indicates that such systems can increase the likelihood of better management of human rights violations, and serve as a basis for the provision of remedies.[23] He also notes that such systems are ineffective unless implemented.[24] And he seeks to reassure companies that due diligence will reduce rather than increase exposure to liability.[25]

[9] The SRSG explained in language somewhat more subtlety drawn than in the 2008 Report:

The term “responsibility” to respect, rather than “duty”, is meant to indicate that respecting rights is not an obligation that current international human rights law generally imposes directly on companies, although elements may be reflected in domestic laws. At the international level, the corporate responsibility to respect is a standard of expected conduct acknowledged in virtually every voluntary and soft-law instrument related to corporate responsibility,31 and now affirmed by the Council itself.

2010 Report, supra, at ¶ 55.

[10] Id., at ¶ 66.

[11] Id., at ¶ 67.

[12] Id., at ¶ 68.

[13] Id., at ¶¶ 69-73 (“human rights are adversely impacted, serious corporate value erosion occurs and disclosure requirements and directors’ duties may be breached. Clearly, better internal control systems and oversight are necessary. ” Id., at ¶ 73).

[14] “For example, the more than fifty cases brought since 1997 against United States-based and other companies under the Alien Tort Statute have included allegations of complicity in genocide, slavery, extrajudicial killings, torture, crimes against humanity, war crimes and other egregious human rights violations. ” Id., at ¶ 75.

[15] Id., at ¶ 57.

[16] Id., at ¶ 58.

[17] Id., at ¶ 60. The International Bill of Rights consists of the Universal Declaration of Human Rights and the main instruments through which it has been codified: the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.

[18] “Depending on circumstances, companies may need to consider additional standards: for instance, they should also take into account international humanitarian law in conflict-affected areas (which pose particular challenges)36; and standards specific to “at-risk” or vulnerable groups (for example, indigenous peoples or children) in projects affecting them.” Id., at ¶ 61.

[19] Id., at ¶ 62-65. He notes that

the proposition that corporate human rights responsibilities as a general rule should be determined by companies’ capacity, whether absolute or relative to States, is troubling. On that premise, a large and profitable company operating in a small and poor country could soon find itself called upon to perform ever-expanding social and even governance functions – lacking democratic legitimacy, diminishing the State’s incentive to build sustainable capacity and undermining the company’s own economic role and possibly its commercial viability. Indeed, the proposition invites undesirable strategic gaming in any kind of country context.

Id., at 64.

[20] Id., at ¶¶ 79-86. On the importance of monitoring in this context, see, Larry Catá Backer, From Moral Obligation to International Law: Disclosure Systems, Markets and the Regulation of Multinational Corporations, 39 Georgetown Journal of International Law 591 (2008).

[21] 2010 Report, supra, at ¶ 80. On the governance effects of surveillance and disclosure systems, see Larry Catá Backer, Surveillance and Control: Internal, External and Governmental Monitoring of Corporate Insiders After Sarbanes-Oxley, 2004 Michigan State Law Review 327 (2004).

[22] These include: “a statement of policy articulating the company’s commitment to respect human rights; periodic assessment of actual and potential human rights impacts of company activities and relationships; integrating these commitments and assessments into internal control and oversight systems; and tracking and reporting performance.” 2010 Report, supra, at ¶ 83.

[23] Id.

[24] “Accordingly, the Special Representative is also developing guidance points for their implementation.” Id., at ¶ 84.

[25] Id., at ¶¶ 85-86. 

In a recent excellent post, the SRSG suggested the utility of the human rights due diligence exercise as a central element of the corporate responsibility, especially in the context of corporate catastrophes, like that recently experienced by British Petroleum in the Gulf of Mexico. See John Ruggie, Whose Risk Is It? Corporate Catastrophe and Human Rights,  Harvard Law School Forum on Corporate Governance and Financial Regulation,  August 14, 2010.    This post is based on an article by John Sherman, a Senior Fellow at the Corporate Social Responsibility Initiative at the Kennedy School, Vice Chair of the Corporate Responsibility Committee of the International Bar Association and a member of the UN Global Compact Human Rights Working Group. The article was first published by the International Bar Association.  It is worth reading.

The essay starts with a reminder of the connection of due diligence to risk management, and the consequences of business and its stakeholders of a failure to pay attention to the managing risk--not merely in its customary form of financial risk, but also in its other forms, including those touching on human rights. 

The collapse of the global banking system in 2007, and the Deepwater Horizon disaster in 2010, came as complete surprises to the companies involved. Although individual banks thought they were acting rationally in their own self-interest by selling highly risky financial instruments, they did not anticipate that these risks would combine systemically to result in a freeze of liquidity, which triggered the financial collapse and the recession. And while the causes of the Gulf disaster are still under investigation, it appears that BP, like other deepwater drillers, believed that the likelihood of a runaway deepwater drilling leak was too tiny to plan for.  Id.

And indeed, there was little indication of corporate attention to this sort of risk management, other than perhaps a sense of impatience.  "To the contrary, Tony Hayward, the outgoing CEO of BP, told a business school audience in 2009 that when he took over the CEO job a few years earlier, he found that “we had too many people trying to save the world” at a time when BP needed to focus more on its core operations."  Id.  That more patience, the essay suggests would not merely have pandered to amorphous human rights concerns but might also have permitted more effective management of this catastrophe.  "That is the lesson of “human rights due diligence.” Harvard Kennedy School Prof. John Ruggie, the UN Special Representative on Business and Human Rights (SRSG), coined that term in 2008 to describe what companies should do to meet their responsibility to respect—i.e., not infringe upon—human rights, and to demonstrate to others that they do." Id.   And thus the point:

Viewed wholly from a shareholder perspective, the risks of infringing on human rights can cost a company big money, and so should be included in any company risk analysis. As the SRSG noted in his 2010 report to the UN Human Rights Council, a study of the oil and gas industry found that the risks to exploration from disputes between oil explorers and external stakeholders has been growing much faster than the technical risks of getting oil out of the ground. And one oil & gas company estimated that over a two-year period, it lost $6.5 billion in value from such ‘above ground’ disputes with communities. [9] These disputes can cause disruption and delay in financing, construction, and operations, greatly distract senior leaders’ attention, swiftly trash a company’s reputation, and lead to the loss of its legal and social license to operate. And that list doesn’t include the obvious risk of litigation, which is hugely expensive and distracting regardless of who wins.  Id.

The essay reminds us that this sort of due diligence based risk management has become increasingly embedded in the patterns of corporate management that is central to the operation of large economic concerns.  "Risk management standards requiring companies to assess the adverse impacts of their operations on external stakeholders have become embedded in various hard and soft law external corporate governance standards in such areas as fraud prevention, the accuracy of financial reporting, criminal and environmental law compliance, the fiduciary duties of directors, and the corporate governance codes of a number of countries."  Id.

More importantly, the essay reminds us of the importance of the automous obligation of this due diligence based responsibility to respect human rights.  It has been widely understood that the catastrophe was asmuch one of governmental regulatory failure as it was of corporate miscalculation.   But governmental failure ought not to set the standard for the global conduct of enterprises. 

But inadequate or absent government regulation doesn’t justify a company’s failure to respect human rights. Under the SRSG’s Protect, Respect, Remedy framework, a company’s responsibility to respect human rights is not a legal duty; rather it is “a standard of expected conduct acknowledged in virtually every voluntary and soft-law instrument related to corporate responsibility.” The responsibility “exists independently of States’ human rights duties. It applies to all companies in all situations.” Thus, a company should conduct human rights due diligence, including talking to external stakeholders to understand and address the potential impacts of its decisions and operations on human rights, even where the law is not enforced, or does not tell the company to do so. Id.

If this is so, then what is involved in corporate compliance?

Integrating human rights impact assessments into existing risk management processes requires an understanding of the limitations of traditional risk management tools when applied to human rights impacts. . . . . The traditional ways for companies to address risk are to bear the risk, to avoid it, to reduce it, to share it, to shift it, to pool it, to hedge it, or to diversify it away. [18] Choosing among these tools raises few ethical implications for voluntary transactions, like contracts between businesses. However, such concerns may arise when companies lead others to assume risks that they aren’t aware of and haven’t agreed to bear. . . . By taking into account the human rights dimension of such risks, and engaging with those who may be harmed by such risks, companies can address this potential ethical problem.  Id.

As important, such risk assessment more firmly grounds corporate activity in reality.  And that may be the greatest benefit to the company of internalizing in its business practices and behaviors a sensitivity to the human rights risks of corporate activity.

Considering the impacts of company actions on external stakeholders—through direct dialogue, where feasible—will likely reveal different risk tolerances, and may increase the sensitivity of risk company managers as to the potential impacts of such events on the community. Given the tendency of individuals and companies to overestimate their ability to predict disaster, this conversation is beneficial for both companies and communities. It will hopefully lead those risk managers to reexamine their analyses and predict more accurately the true impact—on individuals, the community and their companies. . . . If we have learned nothing else from business catastrophes, it is that their effects are not limited to corporate shareholders. It is to everyone’s benefit that businesses understand the impact of their decisions on the lives and livelihoods of others, in order to make better decisions about risk..  Id.