University Faculty Senate Presentaiton: Overview of Contributions Report Marc...Larry Catá Backer
The document provides an overview and recommendations from the Faculty Benefits Committee regarding employee contributions to health insurance plans at Penn State. It discusses the history of contribution models and recommends returning to a modest salary indexing model from 2012. It also finds evidence of cost shifting between the university's PPO Blue and PPO Savings plans, with higher-income employees in the PPO Savings plan receiving substantially larger university contributions. The committee recommends eliminating differences in university contributions between plans and income levels to provide equitable compensation.
Democratizing International Business and Human Rights by Catalyzing Strategic...Larry Catá Backer
Democratizing International Business and Human Rights by Catalyzing Strategic Litigation: The Guidelines for Multinational Enterprises and the U.N. Guiding Principles of Business and Human Rights From the Bottom Up
Global Corporate Social Responsibility (GCSR) Standards With Cuban Characteri...Larry Catá Backer
This paper suggests the issues that may face Cuba and enterprises, including U.S. based enterprises, in the wake of normalization. After the introduction, Part II considers briefly the local legal and political context in which enterprises may operate in Cuba, with particular focus on Ley No. 118/2014 (De la Inversión Extranjera), and its contextualization within the legal structures of Cuban macro-economic policy. Part III then outlines two important standards systems for global CSR with effect in Cuba, the OECD’s Guidelines for Multinational Enterprises and the U.N. Guiding Principles for Business and Human Rights. Part IV then considers the ways in which MNEs may have to approach their investment activities in light of these standards, the pressures for change they might produce, and the adverse effects their adverse effects on MNE decisions to invest or operate in Cuba.
This document summarizes a meeting of the Penn State University Faculty Senate Council to discuss responses to the Freeh Group Report concerning the Jerry Sandusky scandal. The Senate Council considered forming a task force to monitor procedural fairness in implementing recommendations. They also discussed evaluating recommendations, ensuring rules changes go through proper governance processes, and coordinating with the administration and Board of Trustees task forces. The Senate Council debated their role in responding to the report and next steps.
The document summarizes the crisis currently facing American law schools and opportunities for reform. It notes declining law school admissions and job prospects for graduates as traditional high-paying legal jobs decrease. This has put pressure on schools and some may close. The document outlines challenges regarding curriculum, teaching methods, accreditation standards, student funding, and career placement. It also discusses trends toward internationalizing legal education and differentiating between elite schools and others. The future may include more emphasis on practical skills training, varied approaches across school tiers, and convergence of business-oriented management styles.
The Penn State Senate Council meeting on April 9, 2013 covered several action and informational items. They discussed proposals to reorganize the Dickinson Law School and phase out agricultural and environmental engineering degree programs. They also received updates on the provost search, budget, admissions, and other university matters. The council approved the agenda and various reports before adjourning.
S. Beth Farmer: "Resolving Competition Related Disputes Under the AML."Larry Catá Backer
This document summarizes key aspects of competition law and enforcement in China under the Anti-Monopoly Law (AML). It discusses the AML's provisions on monopolistic conduct, the government agencies that enforce it, and its provisions for private civil actions. It also analyzes examples of private cases that have been brought under the AML and notes increasing filings in recent years. While some critique aspects of AML enforcement, the document argues the law is still developing and agencies and courts are gaining experience in clarifying its provisions through decisions and guidelines.
University Faculty Senate Presentaiton: Overview of Contributions Report Marc...Larry Catá Backer
The document provides an overview and recommendations from the Faculty Benefits Committee regarding employee contributions to health insurance plans at Penn State. It discusses the history of contribution models and recommends returning to a modest salary indexing model from 2012. It also finds evidence of cost shifting between the university's PPO Blue and PPO Savings plans, with higher-income employees in the PPO Savings plan receiving substantially larger university contributions. The committee recommends eliminating differences in university contributions between plans and income levels to provide equitable compensation.
Democratizing International Business and Human Rights by Catalyzing Strategic...Larry Catá Backer
Democratizing International Business and Human Rights by Catalyzing Strategic Litigation: The Guidelines for Multinational Enterprises and the U.N. Guiding Principles of Business and Human Rights From the Bottom Up
Global Corporate Social Responsibility (GCSR) Standards With Cuban Characteri...Larry Catá Backer
This paper suggests the issues that may face Cuba and enterprises, including U.S. based enterprises, in the wake of normalization. After the introduction, Part II considers briefly the local legal and political context in which enterprises may operate in Cuba, with particular focus on Ley No. 118/2014 (De la Inversión Extranjera), and its contextualization within the legal structures of Cuban macro-economic policy. Part III then outlines two important standards systems for global CSR with effect in Cuba, the OECD’s Guidelines for Multinational Enterprises and the U.N. Guiding Principles for Business and Human Rights. Part IV then considers the ways in which MNEs may have to approach their investment activities in light of these standards, the pressures for change they might produce, and the adverse effects their adverse effects on MNE decisions to invest or operate in Cuba.
This document summarizes a meeting of the Penn State University Faculty Senate Council to discuss responses to the Freeh Group Report concerning the Jerry Sandusky scandal. The Senate Council considered forming a task force to monitor procedural fairness in implementing recommendations. They also discussed evaluating recommendations, ensuring rules changes go through proper governance processes, and coordinating with the administration and Board of Trustees task forces. The Senate Council debated their role in responding to the report and next steps.
The document summarizes the crisis currently facing American law schools and opportunities for reform. It notes declining law school admissions and job prospects for graduates as traditional high-paying legal jobs decrease. This has put pressure on schools and some may close. The document outlines challenges regarding curriculum, teaching methods, accreditation standards, student funding, and career placement. It also discusses trends toward internationalizing legal education and differentiating between elite schools and others. The future may include more emphasis on practical skills training, varied approaches across school tiers, and convergence of business-oriented management styles.
The Penn State Senate Council meeting on April 9, 2013 covered several action and informational items. They discussed proposals to reorganize the Dickinson Law School and phase out agricultural and environmental engineering degree programs. They also received updates on the provost search, budget, admissions, and other university matters. The council approved the agenda and various reports before adjourning.
S. Beth Farmer: "Resolving Competition Related Disputes Under the AML."Larry Catá Backer
This document summarizes key aspects of competition law and enforcement in China under the Anti-Monopoly Law (AML). It discusses the AML's provisions on monopolistic conduct, the government agencies that enforce it, and its provisions for private civil actions. It also analyzes examples of private cases that have been brought under the AML and notes increasing filings in recent years. While some critique aspects of AML enforcement, the document argues the law is still developing and agencies and courts are gaining experience in clarifying its provisions through decisions and guidelines.
The Algorithms of Ideology in Economic Planning: A Critical Look at Cuba’s N...Larry Catá Backer
Short Abstract: The development plans of Marxist Leninist states are usually given short shrift as expressions of ideology (at best) and propaganda (at its most pathetic). Yet there is value in considering critically these development plans, if only to get a sense of the mindset of high level functionaries with control over macro-economic policy, and to get a sense of the administrative cultures within which governmental middle managers will actually exercise discretionary authority. Especially useful in that context is the Cuban Communist Party 7th Congress’s Conceptualización del modelo económico y social Cubano de desarrollo socialista: Plan nacional de desarrollo económico y social hasta 2030: Propuesta de vision de la nación, ejes y sectores estratégicos in which the PCC posited that development can be better managed by rejecting the central role of markets, and substituting state planning in its place, taking an all around view of economic planning as inextricably bound up in social, political and cultural progress of a nation. The resulting structural proposal elaborated in the Cuban National Economic and Social Development Plan 2030 (PNDES) suggests behavior and choice algorithms with interesting implications even if only partially realized. It is particularly important as a vision for transition developed in the wake of anticipated changes in higher leadership and the effects of normalization with the United States. This essay critically considers PNDES in the current context national and regional context. It starts with a brief analysis of PNDES for what it can reveal about entrenched ideological perspectives that shape decision making and analysis within Cuban Party and administrative elites. It then considers the way these appear to manifest themselves as a set of self-referencing decision systems that substitute or supplant market or regulatory determinations. Those premises are tested against Cuban approaches to the pharma sector, among the most important targets of centrally planned development. The essay ends with an assessment of the consequences of Cuban current approaches for national and regional affairs.
“One Belt One Road and RMB Internationalization—A Strategic Alliance” Larry Catá Backer
Focus: Consideration of the peripheral structures of Chinese trade and investment policy and its potential effects on RMB internationalization. Thesis: RMB internationalization is one small part of a larger more ambitious project: (1) External: An integral part of Chinese trade and development policies; an interlocking set of objectives to solidify the all around central position of China; (2) Internal: Core of socialist modernization and development of productive forces within China; situating China at center of global commerce essential for next stage of economic and political development.
Structures of discussion: (1) Situating RMB internationalization within broader issues of Chinese policy; (2) The OBOR initiative and related development efforts. Last section considers putting the pieces together; and (3) Tie it back to issues of reality (trade and investment use) and perception (consensus of others states)
Why are OBOR and RMB internationalization linked? (1) Stability; (2) Development; and (3) Control
Unpacking Accountability: The Multinational Enterprise, the State, and the In...Larry Catá Backer
Larry Catá Backer argues that effective systems of accountability for corporate violations of human rights, labor, and environmental standards require all stakeholders - states, enterprises, international organizations, civil society, and NGOs - to hold each other accountable. True accountability is multidirectional and context-dependent, operating through reciprocal relationships defined by objectives like norm generation, good governance, and institutional legitimacy. These objectives are pursued through diverse accountability mechanisms and grounded in the internal accountability structures of each actor. Effective accountability thus depends on coherent, multilayered frameworks encompassing self, mutual, and external accountability across this complex accountability ecology.
The Privatization of Governance: Emerging Trends and ActorsLarry Catá Backer
Globalization's challenges, tensions and contradictions, indeed all of the variables that contribute toward the trajectory of globalization and its relationship to its principal actors, merely reinforce the primacy of globalization itself as a singular orthodoxy. And it is an orthodoxy that is itself embedded in the more fundamental governance orthodoxy of the mid-1945s from out of which the framework of its conception and operation was itself embedded. That orthodoxy itself posited a hierarchy in which politics served as the legitimating instrument of power, and that the state served as the apex organization of politics. That organization, itself, was expressed as the institutionalization of mass power framed within a set of fundamental substantive norms the limiting principles of which would be set by the community of states dominated by its leading members. Thus, the appearance of challenge and opposition that has been more sharply drawn since the start of this century might be understood as occurring within a carefully protected orthodoxy the object of which is to protect the primacy of politics (and law) with the state as its apex.
And yet, one of the great ironies of globalization is the way in which its effort to cement a framework orthodoxy after 1945 has served to overturn orthodoxy itself, and in its place, has ushered in an age of heterodoxy that is both ordered but anarchic. This presentation introduces some of the basic trends and actors that have emerged from out of the orthodox conceptual framework of globalization, and the extent to which these are contributing to its transformation as a vector of governance.
The Responsibilities of Banks, Sovereign Wealth Funds and Other Financial Ins...Larry Catá Backer
Extractive industries have been at center of CSR and environmental responsibilities debates at the national and international level. It has been noted that "The sector faces unique social and environmental challenges when operating in developing countries. Faced with these challenges, a number of Canadian companies are engaging in corporate social responsibility (CSR) initiatives, generally defined as the voluntary activities undertaken by a company to operate in an economically, socially and environmentally sustainable manner" (Building the Canadian Advantage: A Corporate Social Responsibility (CSR) Strategy for the Canadian International Extractive Sector). These generally involve direct compliance. Domestic law focuses on the law and regulatory frameworks of home and host states. Soft law focuses on national (to a small extent) and more generally in international framing mechanisms and indigenous law (national an international). In addition, private law also applies--to the extent that extractive enterprises build their own internal governance systems applicable through their production chains worldwide.
But increasing there is a need to think about indirect compliance: especially the responsibilities of financial institutions, suppliers, and upstream customers to gauge their conduct by the legal/normative compliance of the extractives enterprise itself.
This presentation focuses on financial institutions and their responsibilities with respect to the human rights responsibilities of their borrowers.
Sovereign Wealth Funds, Capacity Building, Development, and Governance Larry Catá Backer
Abstract: Though operating in some form or another for over half a century, sovereign wealth funds (SWFs) did not become an object of general attention until the early part of the 21st century when a combination of the need of developed states for investment and the growing acceptability of state investment in private markets abroad made them both threatening and convenient. Assured by the framework of the Santiago Principles most states now view SWFs as a useful multi-purpose sovereign investment vehicle. Yet over the last decade or so, SWFs appear to have developed the potential to become an important instrument in good governance and development, especially for resource rich and capacity poor developing states. Following the lead of Chile, and with the patronage of IFIs, these SWFs have begun to serve objectives as and with development banks both within and beyond their home state. This paper considers the capacity of SWFs to serve ends beyond mere fund value maximization as envisioned in the Santiago Principles. It explores the value of SWFs as a means of enhancing governance capacity in weaker states, its utility in enhancing development objectives, the emerging landscape of joint ventures among SWFs for development and their intersections with emerging infrastructure and development banks, and their importance in enhancing the operationalization of emerging international business and human rights standards not only within their own organizations but through their investment activities. A brief assessment of these trends ends the paper. Lastly it develops a set of transformative changes in approaches to SWF instrumentality that SWFs, especially the smaller SWFs and those in developing states, might deploy in structuring and operating their SWFs within a globalized economic order. These strategies are meant to avoid the circular characteristics of current discussions grounded on premises of finance instrument silos and state based systems that no longer accord with the realities of, and fail to take advantage of the possibilities now offered through, global finance and can be grouped into the three transforming categories suggested in Section III: regionalization strategies; financial objectives strategies; governance strategies.
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The Algorithms of Ideology in Economic Planning: A Critical Look at Cuba’s N...Larry Catá Backer
Short Abstract: The development plans of Marxist Leninist states are usually given short shrift as expressions of ideology (at best) and propaganda (at its most pathetic). Yet there is value in considering critically these development plans, if only to get a sense of the mindset of high level functionaries with control over macro-economic policy, and to get a sense of the administrative cultures within which governmental middle managers will actually exercise discretionary authority. Especially useful in that context is the Cuban Communist Party 7th Congress’s Conceptualización del modelo económico y social Cubano de desarrollo socialista: Plan nacional de desarrollo económico y social hasta 2030: Propuesta de vision de la nación, ejes y sectores estratégicos in which the PCC posited that development can be better managed by rejecting the central role of markets, and substituting state planning in its place, taking an all around view of economic planning as inextricably bound up in social, political and cultural progress of a nation. The resulting structural proposal elaborated in the Cuban National Economic and Social Development Plan 2030 (PNDES) suggests behavior and choice algorithms with interesting implications even if only partially realized. It is particularly important as a vision for transition developed in the wake of anticipated changes in higher leadership and the effects of normalization with the United States. This essay critically considers PNDES in the current context national and regional context. It starts with a brief analysis of PNDES for what it can reveal about entrenched ideological perspectives that shape decision making and analysis within Cuban Party and administrative elites. It then considers the way these appear to manifest themselves as a set of self-referencing decision systems that substitute or supplant market or regulatory determinations. Those premises are tested against Cuban approaches to the pharma sector, among the most important targets of centrally planned development. The essay ends with an assessment of the consequences of Cuban current approaches for national and regional affairs.
“One Belt One Road and RMB Internationalization—A Strategic Alliance” Larry Catá Backer
Focus: Consideration of the peripheral structures of Chinese trade and investment policy and its potential effects on RMB internationalization. Thesis: RMB internationalization is one small part of a larger more ambitious project: (1) External: An integral part of Chinese trade and development policies; an interlocking set of objectives to solidify the all around central position of China; (2) Internal: Core of socialist modernization and development of productive forces within China; situating China at center of global commerce essential for next stage of economic and political development.
Structures of discussion: (1) Situating RMB internationalization within broader issues of Chinese policy; (2) The OBOR initiative and related development efforts. Last section considers putting the pieces together; and (3) Tie it back to issues of reality (trade and investment use) and perception (consensus of others states)
Why are OBOR and RMB internationalization linked? (1) Stability; (2) Development; and (3) Control
Unpacking Accountability: The Multinational Enterprise, the State, and the In...Larry Catá Backer
Larry Catá Backer argues that effective systems of accountability for corporate violations of human rights, labor, and environmental standards require all stakeholders - states, enterprises, international organizations, civil society, and NGOs - to hold each other accountable. True accountability is multidirectional and context-dependent, operating through reciprocal relationships defined by objectives like norm generation, good governance, and institutional legitimacy. These objectives are pursued through diverse accountability mechanisms and grounded in the internal accountability structures of each actor. Effective accountability thus depends on coherent, multilayered frameworks encompassing self, mutual, and external accountability across this complex accountability ecology.
The Privatization of Governance: Emerging Trends and ActorsLarry Catá Backer
Globalization's challenges, tensions and contradictions, indeed all of the variables that contribute toward the trajectory of globalization and its relationship to its principal actors, merely reinforce the primacy of globalization itself as a singular orthodoxy. And it is an orthodoxy that is itself embedded in the more fundamental governance orthodoxy of the mid-1945s from out of which the framework of its conception and operation was itself embedded. That orthodoxy itself posited a hierarchy in which politics served as the legitimating instrument of power, and that the state served as the apex organization of politics. That organization, itself, was expressed as the institutionalization of mass power framed within a set of fundamental substantive norms the limiting principles of which would be set by the community of states dominated by its leading members. Thus, the appearance of challenge and opposition that has been more sharply drawn since the start of this century might be understood as occurring within a carefully protected orthodoxy the object of which is to protect the primacy of politics (and law) with the state as its apex.
And yet, one of the great ironies of globalization is the way in which its effort to cement a framework orthodoxy after 1945 has served to overturn orthodoxy itself, and in its place, has ushered in an age of heterodoxy that is both ordered but anarchic. This presentation introduces some of the basic trends and actors that have emerged from out of the orthodox conceptual framework of globalization, and the extent to which these are contributing to its transformation as a vector of governance.
The Responsibilities of Banks, Sovereign Wealth Funds and Other Financial Ins...Larry Catá Backer
Extractive industries have been at center of CSR and environmental responsibilities debates at the national and international level. It has been noted that "The sector faces unique social and environmental challenges when operating in developing countries. Faced with these challenges, a number of Canadian companies are engaging in corporate social responsibility (CSR) initiatives, generally defined as the voluntary activities undertaken by a company to operate in an economically, socially and environmentally sustainable manner" (Building the Canadian Advantage: A Corporate Social Responsibility (CSR) Strategy for the Canadian International Extractive Sector). These generally involve direct compliance. Domestic law focuses on the law and regulatory frameworks of home and host states. Soft law focuses on national (to a small extent) and more generally in international framing mechanisms and indigenous law (national an international). In addition, private law also applies--to the extent that extractive enterprises build their own internal governance systems applicable through their production chains worldwide.
But increasing there is a need to think about indirect compliance: especially the responsibilities of financial institutions, suppliers, and upstream customers to gauge their conduct by the legal/normative compliance of the extractives enterprise itself.
This presentation focuses on financial institutions and their responsibilities with respect to the human rights responsibilities of their borrowers.
Sovereign Wealth Funds, Capacity Building, Development, and Governance Larry Catá Backer
Abstract: Though operating in some form or another for over half a century, sovereign wealth funds (SWFs) did not become an object of general attention until the early part of the 21st century when a combination of the need of developed states for investment and the growing acceptability of state investment in private markets abroad made them both threatening and convenient. Assured by the framework of the Santiago Principles most states now view SWFs as a useful multi-purpose sovereign investment vehicle. Yet over the last decade or so, SWFs appear to have developed the potential to become an important instrument in good governance and development, especially for resource rich and capacity poor developing states. Following the lead of Chile, and with the patronage of IFIs, these SWFs have begun to serve objectives as and with development banks both within and beyond their home state. This paper considers the capacity of SWFs to serve ends beyond mere fund value maximization as envisioned in the Santiago Principles. It explores the value of SWFs as a means of enhancing governance capacity in weaker states, its utility in enhancing development objectives, the emerging landscape of joint ventures among SWFs for development and their intersections with emerging infrastructure and development banks, and their importance in enhancing the operationalization of emerging international business and human rights standards not only within their own organizations but through their investment activities. A brief assessment of these trends ends the paper. Lastly it develops a set of transformative changes in approaches to SWF instrumentality that SWFs, especially the smaller SWFs and those in developing states, might deploy in structuring and operating their SWFs within a globalized economic order. These strategies are meant to avoid the circular characteristics of current discussions grounded on premises of finance instrument silos and state based systems that no longer accord with the realities of, and fail to take advantage of the possibilities now offered through, global finance and can be grouped into the three transforming categories suggested in Section III: regionalization strategies; financial objectives strategies; governance strategies.
Diversity in Legal Education: Considering the Hollow Spaces Between Speech an...Larry Catá Backer
The document summarizes Larry Catá Backer's presentation on diversity in legal education given at Penn State Law. It discusses challenges with moving from aspirational statements on diversity to implementing real change. Specifically, it notes a need to refocus analysis on responsibility at higher administrative levels rather than just obligations of front-line actors. It also calls for robust accountability measures for those responsible for shaping organizational culture and assessments of diversity-related performance in reviews of managers.
Presentation Delivered January 26, 2017Johns Hopkins University School of Education. his presentation will help to build a broader understanding of governance issues and models within academe and provide an overview of challenges to shared governance derived principally from a university model of faculty senate. Professor Backer has served as a member of Penn State’s University Faculty Senate in the capacities of Senate Chair, Parliamentarian, Representative for the Law School, and Chair, Co-Chair and Member of various senate committees. He maintains a website devoted to faculty voice entitled Monitoring University Governance with the mission of “promoting transparency and engagement in shared governance in universities and colleges.”
The Corporate Social Responsibilities of Financial Institutions for the Condu...Larry Catá Backer
Abstract: Corporate social responsibility (CSR) can be split along two distinct lines. The first touches on the nature of corporate personality and is rooted in domestic law regulating enterprises specifically and legal persons generally. The second touches on the nature of the rights of individuals and is rooted in international law (and sometimes domestic constitutional law) defining the scope of the human rights of individuals and the consequential obligations of states and legal persons. Both conversations intertwine though they tend to operate autonomously. In both cases, however, the traditional focus of corporate responsibility has focused on the relationship between an operating company and its direct effects on individuals, society and the environment. That discussion remains contentious, conflicted and unresolved. But it ignores a critical actor—the financial institutions which provide operating capital to enterprises. This paper considers the corporate social responsibilities of financial institutions, including sovereign wealth funds, for the conduct of their borrowers. The focus will be the extent of any duty or responsibility of lenders to ensure that their borrowers comply with CSR obligations (or alternatively conforms to international human rights standards) as a core aspect of their own CSR obligations (or alternatively) of their responsibility to respect human rights. Section II examines the general regulatory framework. There are two aspects that are relevant. The first is to understand the scope and character of the legal norms that may be applied to enterprises generally with respect to their operation’s that might be understood as CSR-human rights related in nature. The second is to consider the range of non-legal normative governance rules that might apply. In the process it will be important to distinguish between a CSR based regulatory approach and a human rights based approach. Section III considers the application of these norms to financial institutions. This requites distinguishing between those obligations that apply to the internal operations of financial institutions generally, and those obligations that apply to the financial institution’s obligations with respect to its lending activities, that is with respect to its relationship with its borrowers. The essay ends with a brief examination of recent cases in which financial institutions undertook such a responsibility, and the ways in which that obligation was undertaken. Three different types of institutions are considered—private banks, sovereign wealth funds and international financial institutions (IFIs). The paper ends with a preliminary consideration of the consequences of this movement for domestic CSR in the U.S.
Between the Judge and the Law—Judicial Independence and Authority With Chines...Larry Catá Backer
Abstract: What is the scope and nature of judicial reform? To what extent does borrowing from Western models also suggest an embrace of the underlying ideologies that frame those models? It is a common place in the West, whether in Common Law or Civil Law states, that the integrity of the judiciary depends on their authority to interpret law and to apply that interpretation to individual cases and the litigants that appear before the courts. That presumption, however, embeds premises about the organization of political and administrative authority that may be incompatible with those of states developing Socialist Rule of Law structures within Party-State systems. In Common law states those deep presumptions touch on the disciplinary role of judicial opinions as a constraint on judicial interpretation. In civil law states that discipline arises from the constraining principles of the legal codes themselves. In both the legislatures serve as the ultimate check in a complex dialogue with courts in three respects. First, judges serve a political role in their relation to law. Second, cases themselves serve an important political role as well. Third, courts begin to serve as the place where societal narratives are forged and popular expression is constructed and applied. In Socialist rule of law systems, the disciplinary systems are quite different and ought to produce a different relationship between courts, law, and the cases they are bound to apply fairly and consistently under law. This paper considers the way that the logic and grounding principles of Chinese Marxist Leninism may provide guidance in the construction of a judicial enterprise that is both true to its organizational logic and which enhances the authority of judges to serve litigants fairly. It suggests the points of compatibility and incompatibility in the ideologies of these distinct systems of judging and what it may mean for judicial reform in China. That consideration, in turn is based on a fundamental difference, in Socialist Rule of Law systems, between the authority to interpret law and the authority to apply law to an individual case. For Chinese judicial reform it is in the perfectibility of the judge that lies the perfectibility of law that in turn ensures the perfectibility of the judge. Part II considers in very broad strokes the relationship between the judge and law in the West. Part III then considers Chinese reforms touching on the relationship between the judge and the law, and the evolution of normative structures within which one can speak to judicial independence. Part IV then considers the project from the perspective of the grounding ideology of the Chinese state. From that fundamental distinction, the paper will propose a Socialist approach to the judicial function compatible with its own logic and legitimacy enhancing under global consensus principles for a well-organized and functioning judiciary.
中国,法律与外国人:国际舞台上的相互交融 ("China, Law, and the Foreigner: Mutual Engagements on a...Larry Catá Backer
外国人在中西法律交流中的角色类似于新中国前的情形。
这表明了中西法律交流的典型形态
这表明了中国人自身在“走出去”的战略中可以从中西法律交流中摄取经验。
内部思考:是否可以从党的“建设社会主义现代化”中发展出一套思维—以实事求是的态度来发展现代化。
外部:中国人是否可以避免西方曾经的错误,从而变成他国之上的“老外”?"China, Law, and the Foreigner: Mutual Engagements on a Global Stage," considered the structures of patterns of engagements between China and foreigners from the template well established by the end of the Qing dynasty. Drawing form those patterns, the paper developed a number of archetypes that I suggested could provide a useful framework for analysis. Those archetypes also suggested lessons for China as its now assumed the position of inferential foreigner in other states.
Central Planning Versus Markets Marxism: The Cuban Communist Party Confronts ...Larry Catá Backer
The 7th Congress of the Cuban Communist Party stands in stark contrast to its predecessor. The 6th PCC Congress appeared to usher in an era of at least limited opening up and the institutionalization of a private sector of sorts. Yet the 7th PCC Congress in many respects appeared to disappoint. Procedurally it appeared to mark a step back from the openness of the 6th Congress. And it offered little by way of political opening up, even an opening up ushering in more robust intra-Party democracy. Most importantly, the 7th PCC Congress appeared to fall far short of confronting the economic model reaffirmed in the 4th PCC Congress—a model of central planning and Soviet bureaucratic mechanisms substituting for any sort of markets based regulation of economic activity. This paper considers the potential and the missed opportunities of the 7th PCC Congress. A close reading of the 7th PCC Congress will suggest the limits of reform in Cuba. Ideological limits are suggested by a political timidity that has been built into the operating culture of the PCC. As a consequence the PCC is finding it hard to move even from soviet style central planning ideologies to Marxist market ideologies that have proven more successful in other states. The PCC is suffering from a paralysis that may be more dangerous to its long term authority than any machinations originating in its enemies. The paper ends with a consideration of options and likely movement over the short term moving forward.
China, Law and the Foreigner: Mutual Engagements on a Global StageLarry Catá Backer
Prepared for the Conference: “Foreigners and Modern Chinese Law”, Tsinghua University School of Law, Beijing, China, July 9-10, 2016; Organized by Profgessors Xu Zhangrun and Chen Xinyu
Transnational Law and the Multinational Enterprise: From Legal Concept/Method...Larry Catá Backer
At first blush, transnational law’s engagement with TNCs reflects the situational and ad hoc approach of the transnational law project. Transnational law tends to focus on the TNC as an actor apart, like the state, within transnational law situational processes.
Like the state, TNCs are governance singularities into which law can be poured, extracting coherent action. It moves the TNC from the construction of a category to consequential instrumentalism
But is this relationship between TNCs and transnational law construct TNCs too restrictively?
Does it fail to describe the reality of TNCs (the problem of definition)?
Should we consider TNCs as a transnational legal order in its own right (the systems issue)?
Should we consider TNCs instead as the constitution of production chains (the conflation issue)?
Presented at “Jessup’s Bold Proposal: Engagements with 'Transnational Law’ after Sixty Years” Transnational Law Institute, The Dickson Poon School of Law, King’s College, London, Friday-Saturday 1-2 July 2016
Normalization With Cuban Characteristics: How Might Cuba Navigate Normalizati...Larry Catá Backer
Cuba has constructed a tightly woven framework of macro-economic policy and political structures around a unique application of European Marxist-Leninism. That framework has proven durable even in the face of substantial economic crisis and a political situation increasingly subject to internal pressures. Closer working ties with the United States will only exacerbate the tensions and contradictions of the current system. If Cuba means to keep a Marxist-Leninist political structure, something will have to evolve.
Financial Sector Responsibility for Human Rights Conduct of Borrowers: What W...Larry Catá Backer
The document discusses the responsibilities of financial institutions for the human rights conduct of their borrowers, using the extractives sector as an example. It provides context on debates around corporate social responsibility in the extractives sector. It then outlines several international norm structures that guide business and human rights conduct, such as the UN Guiding Principles on Business and Human Rights, OECD Guidelines for Multinational Enterprises, and third party standards. The document also examines case studies of financial institutions, including the Norwegian sovereign wealth fund's exclusions of certain companies from its investment portfolio due to human rights or environmental concerns. It concludes by looking at private standards adopted by banks like HSBC for their mining and metals sector clients and policies.
Trail By Fire: Rana Plaza and Transnational Legal Orders Larry Catá Backer
Considering the construction of transnational legal orders through the lens of a deep study of the aftermath of the Rana Plaza Factory building collapse in 2013.
Analysis of the General Program of the Chinese COmmunist Party COnstitution as a basis for theorizing the fundamental principles of Chinese political and legal theory
Institutionalization of Faculty Role in Shared Governance: The Faculty Senate...Larry Catá Backer
The document summarizes the history and present structure of shared governance at Penn State University, focusing on the role of the Faculty Senate. It discusses how governance has evolved from autocratic models pre-1870s to the current system where faculty have an institutionalized role in decision-making through the Senate. The Senate has legislative, advisory, and other functions carried out by committees. It faces ongoing challenges to meaningful participation from administrative techniques that sideline faculty input as well as structural changes to the faculty and university.