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“The Rule of Law, The Chinese Communist Party, and Ideological Campaigns:  Sange Daibiao (the “Three Represents”), Socialist Rule of Law, and Modern Chinese Constitutionalism,” Transnational Law & Contemporary Problems 16(1):29-102 (2006).

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Abstract: Since the middle of the last century, the ideal of constitutional legitimacy has been grounded on the foundation of the concept of the rule of law. The rule of law is usually understood in two senses: first, as embracing firm limits on an arbitrary use of power, that is, of the use of the state power when not grounded in law (process aspect); and second, as vesting the state with a critical role as guardian of a set of foundational communally embraced substantive norms that are to be protected and furthered through the use of state power grounded in law (substantive aspect). The Chinese Constitution of 1982 has, as a formal matter, embraced the idea of the rule of law in its process aspect. The Preamble declares that the Constitution is the fundamental law of the state and has supreme legal authority and Article 5 as amended in 1999 emphasizes the People’s Republic of China practices ruling the country in accordance with the law and building a socialist country of law.

However, it is more difficult to discern even a formal adoption of the rule of law in its substantive aspect. As a consequence, outsiders have questioned the fidelity of the Chinese state to the rule of law because of the control by the Chinese Communist Party (CCP) of the apparatus of law making in China. In one sense these arguments can be reduced to a criticism of Chinese constitutionalism as illegitimate because it lacks a basis in moral and ethical norms outside of the personal desires of the leaders of the CCP.

This paper suggests that traditional criticism misperceives the fundamental nature of Chinese Constitutionalism as it attempts to fashion its own distinct socialist rule of law constitutionalism. Fundamental to this socialist rule of law is the core premise the connection between the apparatus of the state (its institutions) and that of the Chinese Communist Party (as the Party in power). The paper examines the way the normative basis of this socialist rule of law has been advanced through the use of increasingly sophisticated and complex specific ideological frameworks into the constitution. This may suggest a greater willingness to advance the implementation of ideology, and the substantive structure it represents, through state power grounded in law. However, because the norm structures of Chinese ideology articulated through the CCP remain either alien or antithetical to their usual Western counterparts, they remain opaque outside of China.

To examine the parameters of this possible shift in Chinese constitutionalism, the paper will examine one element in this process of incorporation – the inclusion of sange daibiao (the ‘Three Represents’) into the governance structures of the CCP after 2000 and the Chinese Constitution after 2004. Like the earlier constitutional assimilation of Deng Xiaoping Theory, the adoption of sange daibiao may serve, at least as a formal matter, to further incorporate substantive rule of law elements into Chinese constitutionalism. Sange daibiao illustrates the way in which China is seeking to construct socialist rule of law through a commitment to an institutional structure of the state in which the CCP serves not as a mere Western style political party but as an integral organ of state power. The focus is on the reality of the CCP within the state. Sange Daibiao provides an ideological basis, a deep constitutional foundation, for the position of the CCP at the center of the constitutional apparatus of the Chinese state. But it does more than that – it also provides the basis through which the rule of law, as a framework for the proper relationship between state institutions (representing the collective) and the individual (as an instrument of that collective). As developed by the organs of the CCP, it is clear that Sange Daibiao can provide the principles through which the framework of commonly understood rule of law constitutionalism can be adopted with Chinese characteristics.

 

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Ideologies of Globalization and Sovereign Debt:  Cuba and the IMF”,  Penn State International Law Review 24:497-561 (2006).


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Abstract: This paper examines two fundamentally different perspectives when nation-states participate as creditors and debtors. The issue of sovereign debt – its character and effect – is really part of the much larger battle between two fundamentally opposed visions of the nature and character of the nation-states in general, and debtor states in particular, and of the global system that maintains the market for such transactions. The dominant vision, firmly grounded in private law, posits that growth can occur only in a tightly integrated global economy founded on trade liberalization, privatization, and macrostability. When the state fails to pay its debts, it ought to be treated like any other failed corporate enterprise – a stay on debt collection efforts, broad enforcement of absolute priority, creditor approval of the proposed reorganization plan, and well protected new interim financing pending restructuring. Opposing the dominant vision is an anti-corporatist approach grounded in public law and the subordination of economics and markets to political control in the furtherance of deliberate state public policy and planning. States fail because it is in the interest of dominant states to use sovereign debt as a means of perpetuating subordination and a hierarchy of power among states. When a state fails to pay its debts, the focus ought to be on the creditor, and the fairness of the debt in terms of the larger public policy concerns – development, and the maximization of living standards for all individuals through state planning. The paper first explores the normative foundations of each vision and its consequences for dealing with the borrowings of nation-states. For this purpose the paper concentrates on two actors who most starkly highlight the opposing views. For the dominant vision is focus is on Anne Krueger, the First Deputy Managing Director of the International Monetary Fund, and specifically on her proposal to create a bankruptcy model for sovereign state debt restructuring. For the opposing vision the focus is on Fidel Castro Ruz, the President of the Republic of Cuba and specifically on his elaboration of a critique of the dominant vision of global economic development championed by the IMF. These actors nicely distill the positions subject to analysis in this paper. The implications of each for the shape and character of international regulation, and of the state as an actor in the context of the emerging global system of economic and political regulation, are then explored. In particular, the paper contextualizes the Castro vision within the developing positions of a number of public sector institutions, from Latin American opposition ot the Free Trade Area of the Americas, to its use by the United Nations Human Rights establishment in Geneva to regulate transnational corporations, to its use by non-state actors in the West, particularly the Roman Catholic Church, to challenge, from within the West, the market driven system elaborated through the IMF and well illustrated by Krueger’s proposal for a corporate bankruptcy style state discipline overseen by international regulatory agencies.

 

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Multinational Corporations, Transnational Law: The United Nation’s Norms on the Responsibilities of Transnational Corporations as a Harbinger of Corporate Social Responsibility as International Law,”  Columbia Human Rights Law Review 37:287-389 (2006).


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Abstract: This article considers the ramifications of current efforts to internationalize the regulation of corporate social responsibility. The primary focus will be on current United Nations efforts to regulate transnational corporations through the development of its Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises With Regard to Human Rights. The Norms are critically important for two reasons. First, the Norms themselves point to the evolution of fundamental changes in global thinking about corporations, the character and source of their regulation that together will have significant ramifications for American domestic law. The Norms evidence an increasing taste, at the international level, for a shift from a private to a public law basis for corporate regulation. The corporate social responsibility debate is ultimately a debate about the fundamental character of corporations as principally private or public entities. Second, the development and continued life of the Norms and the ideas it embodies illustrate the development of a mechanics of interplay between national, international, public and private law systems in allocating, and competing, for power to regulate. The regularization and institutionalization of these mechanics evidence transnational law coming into its own as a separate field of power.

The article first briefly describes the traditional domestic context of the debates about so-called corporate social responsibility and its relation to basic issues of corporate governance. The article then turns to the changing context in which the Norms were conceived. A critical analysis of the Norms in this context points to potential critical changes in global consensus with significant ramifications for American domestic law. First, the Norms considerably alter the framework of the debate about corporate social responsibility. Corporations, seen as social, political, and economic actors, would serve not merely a broadened set of traditional stakeholders, but also the state and international community as well.

Traditional constraints on action against shareholders, and especially corporate shareholders, would be effectively disregarded for virtually all purposes. Second, the Norms enlist transnational corporations as agents of international law implementation, even against states that have either refused to ratify certain international instruments or have objected to the gloss advanced by international institutions. The Norms create an effective system for the implementation of international law norms through private law. The Norms are implemented through the law of contract between individuals rather than by treaty or state action. Because the Norms are based on a number of international instruments that have not been ratified by all states, the Norms use transnational corporations as a means of end-running states, and in the process, create the basis for the articulation of customary international law principles that will apply to states. Third, the Norms substantially alter the balance of power over corporate governance between inside stakeholders (shareholders, lenders, etc) and outside stakeholders (community, society, the state) by providing a substantial role to NGOs to monitor TNC conformity to the requirements of the Norms.

The article ends with a preliminary consideration of the Norms in a broader context. It analyses the Norms, not as substance, but as symptom of two great fundamental changes in the allocation of governance power in a global setting. First, it illustrates rearrangements in the relative power of systems of domestic, international, public and private systems of governance. Second, the Norms provide a template for the character and form of interaction and communication, among these systems of governance.

 

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“The Autonomous Global Corporation: On the Role of Organizational Law Beyond Asset Partitioning and Legal Personality,” 41(4) Tulsa Law Journal 41(4):541-571 (2006).


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Abstract: Today, an economic enterprise can insulate its assets within itself. It can disperse its assets among enterprises, each an independent juridical person. It can exist independent of its shareholders. It can own itself. It can exist independent of the regulation of any singular political community. It can choose the set of regulations to which it wishes to subject clusters of assets. It can regulate itself. For the economic enterprise able to disperse assets and operations worldwide, for the enterprise that can access capital markets throughout the globe, the essential role of law of economic organizations appears to be to enhance the ability of the multinational economic enterprise to become an autonomous and self regulating entity. This short essay serves as an introduction to the construction of a theory of institutional autonomy from out of a century of debate about the nature of economic entities. The essay first re-examines the asset partitioning ideas of Hansman and Kraakman the context of the multinational enterprise. It suggests that asset partitioning can be usefully understood as fleshing out the contours of the way in which organizational law shapes enterprise autonomy for creditors. The essay then re-examines the corporate personality analysis of Iwai to suggest that in a global context, Iwai’s insights suggest the possibility of enterprise autonomy from shareholders. The essay then considers the perverse utility of the ancient territorial principle and the principle of regulatory hierarchy. Applied in a global context these principles suggest the possibility of enterprise autonomy from the state. Pulling these three puzzle pieces together, the essay suggests that the nexus of multinational enterprises and globalization provides a foundation for the emergence of self-conscious autonomous self-regulating economic entities.

 

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“Economic Globalization Ascendant:  Four Perspectives on the Emerging Ideology of the State in the New Global Order,”  Berkeley La Raza Law Journal 17(1):141-168 (2006).  Published as “Globalização Econômica e Crise do Estado: um estudo em quatro perspectives”, Sequencia No. 51: 255-276 (December 2005).

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Abstract: The contours of the debate about the effect of globalization on the global state system are well known. Perhaps less well understood is the way in which major views of globalization all tend to posit the end of the state system. The result does not change even when considering state friendly conceptions of globalization. More interesting still is that even the great anti-globalization perspectives do little to defend the traditional state system. Whatever the form of opposition, each also essentially posits a global system in which the state plays a subordinate role. For purposes of this paper I broadly describe three views of the nature of globalization. The first proceeds from the logic of the so-called Washington Consensus of private economic transactional neo-liberal globalization. The second looks at economic globalization from a more traditionally state-centered perspective. The third embraces the analytical framework current in certain parts of the developing world and among some major Western religious institutions in which it takes the form of a moral critique of Western led economic globalization. I will show how all three ultimately posit the same consequence for state systems as the foundation of world order – a replacement of the traditional state system as the foundation of law making in the global system of political governance. Each differs only in the nature and form of the system that will replace this system. In the first view all states ultimately suffer the same fate, though perhaps not all at the same time. Political power becomes more diffuse and shared among political, economic, religious, scientific and other communities. The second and third produce a perversion of the state system with a few hyper-states acting as the driving force of international norm making over an amalgamation of other actors, including states, and other political, economic, scientific, religious and related communities. All perspectives also imply that an Aristotelian form of aristocratic governance will result at the global level beyond the nation-state level – in which a few states will effectively govern for the community of nations, subject to a set of norms that transcend national boundaries. But the processes I describe, which in every variation appears to claim the state as a casualty of globalization, is both messier and more complicated than the three models of crisis suggest. I end this essay with a nod to the messiness. Simultaneously developing alongside globalization, or surviving its ascendancy, are other systems incompatible with and likely to engage in conflicts for dominance with both the current system and the ascending system of globalization. These threats arise primarily from three sources. The first include alternative universalizing systems of global organization, based principally in religion. The second include universalizing systems in decline, principally the Marxist-Leninist vision of the past century. The last include anti-universalizing systems and anarchistic systems, from anti-globalization groups, to eco-activists, to old-fashioned conservatives. It seems that the only defense of the traditional state systems is essentially reactionary and increasingly anachronistic. The consequence for the traditional state system appears to be the same, whatever the form of globalization embraced, from the most benign to the most aggressive, and whatever the character of opposition to globalization endorsed. The attachment to a particular nation-state bounded by a finite territory no longer appears to be the critical factor in the debate about globalization.

 

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