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“The Private Law of Public Law:  Public Authorities As Shareholders, Golden Shares, Sovereign Wealth Funds, And The Public Law Element In Private Choice of Law,” Tulane Law Review 82(5):1801-1868 (2008).

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Abstract:This Article examines the development of a European framework for considering the law applicable to state private interventions in the market, both their own and those of other states through direct investment or through sovereign wealth funds. For this purpose, it closely analyzes the so-called golden share decisions of the European Court of Justice delivered between 2002 and 2007, through which the ECJ sought to apply the free movement of capital provisions of the European Treaties to vestigial issues of the construction of a post-socialist political economy in Europe. The Article then applies those insights in three distinct cases of sovereign participation in private market activity: the purchase of shares of a domestic company by a state; the purchase of shares of a foreign corporation by a state; and the purchase of shares by a multi-state sovereign wealth fund. It suggests the importance of the state aids jurisprudence of European Competition Law, a different result under American law, and the tensions inherent in the rising European jurisprudence with the parallel development of principles of foreign sovereign immunity.

The central point of the Article is this: Traditional choice of law analysis is grounded in a stubborn belief in the separability of public and private law, and positing issues of conflicts (and choice) of law as a central problem of private law for transactions among several jurisdictions. This grounding misses an important new development in conflicts (and choice) of law as well as the substantive consequences of those choices. That development, in turn, is founded on the growth of a new phenomenon, the increasing tendency of states to behave like private actors (participating in markets) rather than as sovereigns (regulating markets).

The general framework of the analysis has been choice of law related, but not in the traditional sense. Traditionally, the activities of sovereigns, either as regulators or participants did not raise issues of either choice or conflict of laws. But all that is changing. Modern globalization has effectively introduced a global advance toward free movement of capital and to greater protection of private activity from regulation. At the same time, states have sought to act more energetically as private as well as public actors. In a global legal order in which the value of state sovereignty has diminished and the cross border element of transactions has increased, states can extend their authority as private actors to an extent difficult when they seek to regulate as sovereigns. States privatize their traditional activities or seek to regulate indirectly by acting in markets.

It is in this emerging jurisprudential milieu that issues of choice of law arise – when states seek to participate in markets, does private or public law apply?; and whose law applies in any case? The essay offers no answers to these questions. It suggests that the European Court of Justice’s golden share cases provides an excellent window on a difficult issue of choice of law, and a revolutionary one. The transnationalization of corporate law norms provides an opportunity not only to examine the changing landscape of choice of law in private law, but also the creation of a new set of vertical choice of law questions, and the substantive consequences of their adoption.

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“From Moral Obligation to International Law: Disclosure Systems, Markets and the Regulation of Multinational Corporations,”  Georgetown Journal of International Law 39:591-653 (2008).

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Abstract: It is well known that soft international law has begun to provide incentives for the management of a values-based behavior structure for multinational corporations. This paper will argue that hard international law can serve as a vehicle for the enhancement of a market environment in which corporate stakeholders, and principally consumers and investors, might incorporate information about corporate social behavior in their consumption and investment decisions. Specifically, a mandatory system of transparency and disclosure at the international level may provide an efficient means of creating incentives for moral behavior without the need to incorporate any one version of appropriate manifestations of social responsibility on corporate entities. International law can thus institutionalize, within a rule of law context, important incentives for appropriate behavior without incorporating any particular set of public values and provide a legal framework through which stakeholders can manage the public or social behavior of multinational corporations. The paper starts with a contextualization of the regulatory problem: the extent of the responsibility of corporate actors for the working conditions of indirect employees. Neither domestic nor international law has been much help. Law has taken only some very tentative steps to recognize or further the rise of this moral sense of obligation. The rise of the much-touted corporate social responsibility movement has resulted in the proliferation of a number of responses at every level of governance. Yet, virtually all of these responses have been in the form of soft law, usually voluntary codes that are not enforceable by any political organization, each reflecting the values of their proponents or stakeholders. Still, the obligation can be given legal effect through contract and enforced through regimes of monitoring and disclosure. The paper then considers the way in which hard international law might enhance this framework in which markets determine the substance of appropriate behavior which corporations are willing to embrace. For the purpose, the paper proposes the creation of a global system of disclosure and transparency. The object of these mandates would not be to establish a definitive set of behaviors, but rather to establish a framework within which corporate stakeholders-consumers, investors, labor, and others – could adjust their relationships on the basis of the behavior disclosed. The paper ends by pointing to the sources for such international lawmaking that already exist.

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“From Hatuey to Che: Indigenous Cuba Without Indians and the U.N. Declaration on the Rights of Indigenous Peoples,” American Indian Law Review 33(1):201-238 (2008-2009).

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Abstract: Indigenous peoples have been quite useful to political elites in Latin America almost since the time of the conquests by Spanish and Portuguese adventurers in the fifteenth and sixteenth centuries. In the nineteenth and early twentieth centuries, indigenous people supplied the foundations for a trope, both literary and political, essential for the construction of cultural, ethnic, racial, and political identities distinct from the traditional colonial masters of emerging Latin American states, as well as from that great power to the north. This paper looks at one aspect of this rich development by focusing on the noble savage, the construction of Caribbean (and principally Cuban) political identity, and the formation of governance ideals. The focus will be on three people, separated by hundreds of years but all connected by the parallels of their lives and their place within Caribbean literary and political thought. I will start with the great archetypical figure of Cuban history – a Taino Indian from the island of Hispaniola – el indio Hatuey. The heart of the paper examines essays of Jose Marti in the broader context of Latin indigenismo. Marti, like the Spanish before him, confronts the Indian in Cuban life. But unlike the Spanish, Marti deploys the Indian in the service of the construction of Cuban national indigenismo. The last great figure considered in the development of Cuban indigenismo is Fidel Castro Ruz. Castro served as the leader of Cuba from the successful conclusion of the Cuban Revolution of 1959 until early 2008 when illness forced his retirement. The indigenismo of Marti finds rich embellishment in the great speeches of Fidel Castro. With Fidel Castro we witness the maturation of the process of denaturing the Indian from indigenismo. The essay ends with a consideration of the U.N. Declaration on the Rights of Indigenous Peoples from the perspective of this constructed Cuban indigenismo without Indians. In a Cuba without Indians, but where the memory of the Indian is revered, Cuba can seek to assert the rights of indigenous peoples everywhere without having to confront the issue of its own Indians. In a construction of a social and ethnic order in which the Indian has disappeared, to assert the right of indigenous people in Cuba is to assert the rights of the Cuban nation as a singular but blended mass.

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LatCrit Symposium, “Gendering the President Male: Executive Authority Beyond Rule of Law Constitutionalism in the American Context,” Florida International University Law Review 3(2):341-367 (2008).

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Abstract:

Ideologies of gender, understood as a community’s articulated forms of social self-consciousness, remain ascendant throughout the world. These ideologies are imprinted in the law of all states–modern and ancient, religious and secular. These ideologies become increasingly less visible as societies substitute the language of corruption, psychosis, and ethno-national chauvinism for that of gender. The power of these ideologies to discipline and subordinate women is well understood in the West, even among conservative jurists. Less well understood is the way in which these ideologies discipline and subordinate women by defining, disciplining, and subordinating the “female” in men. Thus gendered, these behaviors serve as the basis for structuring ideal behavior norms for all members of society–whether sexed male or female. More specifically, these events vividly illustrate gender ordering among males through mechanisms consonant with the normative structure internalized by the particular communities in which this naturalization occurs. It comes as no surprise, then, that male elites in the United States, like those in other nations, continue to protect the male gender borderlands of behavior norms. And there is no more powerful set of behavior norms than law in the United States.

This essay considers the dynamics of male on male gendering of law, and the disciplining of its character in this context, by working through its intra-male gender construction by Harvey Mansfield. In an article recently published in the American Standard (“The Law and the President: In a National Emergency, Who you Gonna Call?,” The American Standard 11(17) (Jan. 16, 2006), ()) Manfield suggests that Presidential power, gendered male, clearly suggests that the President’s Constitutional powers extend beyond the mere execution of the laws. “Thus it is wrong to accuse President Bush of acting illegally in the surveillance of possible enemies, as if that were a crime and legality is all that matters.” If law is male, he suggests, then rule of law is defectively male (and thus subordinate as female)—passive, docile, and risk averse. The reinforcement of male hierarchy was traditionally policed through the regulation of sexual activity. Though the sodomy laws, or laws like them, have substantially disappeared from the Western world, informal policing remains effective, primarily through the mechanisms of everyday social rules in which gendered conduct ideals are vested with important social and political consequences. And by imposing and enforcing these differences, differences based on a need to distinguish male from female behavior–more from less valued—Manfield’s exercise in “manliness” is symptomatic of the more subtle and corroding subversive nature of the hierarchy of male gendering. Intra-sexual gender role hierarchies, based on a normative model of male role supremacy, continue to marginalize the normatively female both within each sex and between the sexes. When this marginalization becomes the stuff of constitutional analysis, caudillismo cannot be too far behind.

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Symposium:  Law and the State in the Transnational Legal Order: “Reifying Law:  Understanding Law Beyond the State,” Penn State International Law Review 26(3):521-563 (2008).

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Abstract:

The roots of the current “rule of law” debate are ancient.  Its political, social and religious expressions are bound up in ancient notions of law and government as two possibly distinct categories.  Starting with Bracton’s notions of gubernaculum and jurisdictio, which together define the character, scope and authority of coercive systems of governance, debates about the meaning of both and their relationship went hand in hand with the almost simultaneous construction of modern democratic constitutional states, as well as the most authoritarian states of the twentieth century.  Gubernaculum and jurisdictio serve as the basis for reifying law and the nature of its “rule” as the world moves toward systems of coercive global law, understood either as common law binding on states, or as the precursor to global governance institutions (e.g. an International Criminal Court).  But its jurisprudential expression, especially since the mania for positivism in the construction of political “constitutional” societies took hold in the nineteenth century, produced a certain “amnesia” of the ancient, and often violent, contests over the nature of law.  That contest, in jurisprudential form, invoked religion, political theory and philosophy to determine the relationship between governance and authority.

The paper interrogates that discourse in modern terms.  Using the gubernaculum and jurisdictio distinction in Bracton, it focuses on Francis Bacon’s defense of James I/VI’s instrumentalist view of law (separated from the normative system it expresses) and Edward Coke’s organic view of law as the embodiment of the normative values of the political community that serves to bind and limit its government.  These opposing visions of law are then explored in the context of the jurisprudential oppositions of nineteenth and twentieth century political theory.  Then, more broadly, the paper examines the Bacon-Coke opposition in post-modern and global terms.

In the context of post-modern theory and globalization, the Article emphasizes the emerging understanding of law as technique and on the managerial aspects of modern law systems.  The Article also suggests the way in which the constitutional deadlock of seventeenth century England, now broadened and freed of the artificial boundaries between public and private law, reproduces itself on a global level in the twenty-first century.  To that end the Article explores the way in which the contested understanding of law as object or subject becomes a critical element in the management of networks of power at the international global level and in the reconstitution of legal reification in global common law and private transnational legal systems.

The Article ends by exploring the implications of these theories in the construction of modern transnational constitutionalism, both secular and theocratic.  On one side are those who would resist invasion of ancient or traditional rights by increasingly powerful and aggressive institutional bodies—government, religion, corporation, and society.  The source of resistance is the sure belief in the power of an autonomous reified complex of law.  On the other hand, institutions, conceiving themselves representatives of the whole or complete parts of the power of those they represent, and convinced of the perfection of the authority derived from such representation, resist the imposition of checks and restraints applied in new and more restrictive ways.  The source of this resistance is the sure knowledge that law is separately constituted but is passive and instrumental, to be used by legitimate authority in the construction and articulation of normative standards that exist apart from law and subordinate to the genius of the political community.  And perhaps, both the struggle and its inevitable frustration, more than anything else, illuminates the autonomy, the distinct personalities, of law reified, as the great insight for the twenty-first century.

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“God(s) Over Constitutions: International and Religious Transnational Constitutionalism in the 21st Century,” Mississippi College Law Review 27:11-65 (2008).

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Abstract: With the adoption of the Iraqi and Afghani constitutions in the early 21st century, after substantial American prodding, constitutionalism has entered a new phase. This new phase upsets the system of foundational transnational constitutionalism, grounded in a secular, human rights values maximizing, universalist standard, that appeared with the adoption (after substantial American prodding) of the German Basic Law and the Japanese post war constitution. This system of transnational constitutionalism shifted authority for structural limits on national constitutional expression from individual states to the community of nations acting through the international system elaborated after 1945. But half a century later, this jurisprudential basis of global transnational constitutionalism is in flux: and authority over norm setting is contested. The foundations of a universal constitutionalism are in flux. At the beginning of the 21st century the system of secular, political, international norms-bounded constitutionalism – that great political triumph of the Allied Powers after WWII – is being challenged from a variety of different directions. This paper focuses on one of the most important vectors of these challenges of the early 21st century: the challenge by transcendent, universalist, autonomous, religious communities and their efforts to displace secular universalist normative frameworks with transcendent religious frameworks no less universal. The paper starts with a brief description of the constitutionalist framework prior to the Second World War. The paper then looks at the contestation of this framework and the great post-WWII Western project of contextualizing constitution making within limits derived from international law, norms or standards. The focus then turns to the great opposing constitutionalist system, examining the rise of religiously based or theocratic systems to challenge the orthodoxy of the secular post-WWII supra-constitutionalist project. The paper ends with end with a look to the implications of these seismic movements in global constitutionalism both at the level of constitutional theory, and at the as-applied level of the law of the constitution now possible within states, especially states without homogeneous populations. It suggests that differences among constitutional orders have now moved up from the state to the international level. Comparative law ought now to be concerned not solely with distinctions among states, but also with distinctions among global systems realized in national legal orders. It also posits potential implications for American Religion Clauses jurisprudence, with an eye to the possible construction of a secular theocratic constitutionalism, or for a greater privileging of religion within the American political community.

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“Multinational Corporations as Objects and Sources of Transnational Regulation,” ILSA Journal Of International & Comparative Law 14:499-523 (2008).

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Abstract:Regulatory power is increasingly exercised by autonomous non-governmental organizations. Though not lawmaking in the accepted sense, the regulatory power asserted has come to be asserted within the framework of institutionalized and self-contained systems that exercise state functions outside the state. At the same time, public law has sought to assert a measure of legislative control over private regulatory systems, especially those that seek to impose a harmonized ad institutionalized regulatory framework across borders. Among the most dynamic players in this are has been multi-national corporations. From the perspective of public law, the objective has been to develop a network of regulatory systems through which state actors can control such entities. From the perspective of the multinational corporation, the objective has been to develop governance systems of its own to regulate the factors of production of wealth wherever located. My object in this essay is, first, to describe the traditional public law regulatory framework and suggest its limitations and failures of perspective. Second, I will illustrate the response of multinational corporations to these limitations and failures. For this purpose I will focus critically on the institutionalized regulatory framework created by Gap, Inc, to regulate its global supplier network, a regulatory framework in which the state is substantially absent and the center of regulatory activity shifts to the corporation. Lastly, I will posit the rough contours of a theory of soft public regulatory power in private law, its connection to the basic premises of contemporary economic globalization, and suggest some consequences for the actors principally and those left out.

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“Global Panopticism:  Surveillance Lawmaking by Corporations, States, and Other Entities,” Indiana Journal of Global Legal Studies 15(1):101-148 (2008).

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Abstract: Regulatory power has become fractured. Its assertion both by public and private bodies is well known. Less well recognized is that the expression of this regulatory power has been fracturing as well. No longer confined to positive regulation or judicial decision, the techniques for enforcing regulation are substituting for regulation itself. This paper examines surveillance as a mechanism through which power is asserted and regulation effected in a world of shared public/private governance. For this purpose, understanding the nature of surveillance as a technique of governance, and as a substitute for governance itself, is a key element for understanding political authority as it is developing. The paper focuses surveillance as a new form of lawmaking through which the old boundaries between the public and private, national and transnational, are not relevant. It explores the ways in which the construction of complex systems of conscious and permanent visibility affects the power relationships among states, economic entities and individuals. To understand the complexities and vectors of surveillance is to grasp the shape of converging public/private governance in this century. To that end, this paper first suggests an approach to the unbundling of the normative and methodological assumptions of surveillance. That approach can be usefully divided into four aspects, normative, informatics, control, and governance, each of which is developed in turn. The paper ends with an elaboration of the regulatory consequences of the manipulation of these aspects of surveillance. Drawing on theories of gouvernmentalité, the paper suggests the ways in which governance is increasingly elaborated through the techniques of its own power. The attention lavished on surveillance in its many forms evidences the ways in which law, in a sense, is now expressed through different forms.

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“Monitor and Manage:  MiFID and Power in the Regulation of EU Financial Markets,”  Yearbook of European Law 27:349-386 (Oxford U. Press, 2008); reprinted in MiFID:  A Competitive Landscape (Hyderabad, India: ICFAI University Press  (http://www.iupindia.org/default.asp), 2008).

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Abstract: MiFID, the Market in Financial Instruments Directive, came into force on 1 November 2007, and is hailed as the next great step toward market integration within the European Union (EU). It is grounded in two key traditional policies of market regulation: surveillance and management. MiFID will exact a greater degree of transparency—paralleling American principles of market regulation. It will also require adherence to a ‘best execution’ standard for all clients. Most analyses have focused on the costs and implementation of these requirements. Transparency is viewed as either a burden (or opportunity) because of the need to produce, keep and manage more data. Markets in information will surely grow. The ‘best execution’ standards provide a greater means of standardizing industry practices—with the potential benefit to regulators to which power over market behavior should flow. This article will focus on the potential ramifications of the surveillance and regulatory aspects of MiFID in terms of nature of the character of the regulatory power in the financial products sector. Specifically the article examines the effects of the creation of the markets for information elaborated or augmented through MiFID in terms of the regulation of the behavior of participants in financial markets and the entities they serve. Particular attention will be paid to the effects of MiFID on public and private anti-corruption campaigns, the use of these regulations to influence the behavior of issuers and market middlemen, and the potential utility of these regulations to elements of civil society and the media in their campaigns for corporate and capital social responsibility.

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