Larry Catá Backer - Profile on Academia.edu (original) (raw)
Papers by Larry Catá Backer
Globalization and the Socialist Multinational
Transnational Dispute Management, Mar 2, 2009
The Structure of Global Law: Fracture, Fluidity, Permeability, and Polycentricity
Social Science Research Network, Jul 1, 2012
Global law can be understood as the systematization of anarchy, as the management of a loosely in... more Global law can be understood as the systematization of anarchy, as the management of a loosely intertwined universe of autonomous governance frameworks operating dynamically across borders and grounded in functional differentiation among governance communities. Global law is a way of pointing to an emerging universe of systems that share characteristics and whose interactions lend them to organization; it is the as the law of non-state governance systems. The structure of global law can be understood as an amalgamation of four fundamental characteristics that together define a new order in form that is, in some respects, the antithesis of the orderliness and unity of the law-state system it will displace (though not erase). The essay considers the structure of global law in this context, understood as an amalgamation of four fundamental characteristics that together define a new order in form that is, in some respects, the antithesis of the orderliness and unity of the law-state system it will displace (though not erase). These four fundamental characteristics — fracture, fluidity, permeability, and polycentricity — comprise the fundamental structure of global law. Fracture, fluidity, permeability and polycentricity are the basic characteristics of global law, the systematization of which marks its field boundaries. These also serve as the structural foundations of its constitutional element, its substantive element, and its process element. From that systematization one can derive a method of theorizing the emerging framework of the unity of disunity in governance, in which law and governance systems multiply within a discernible internal logic, while the objects of regulation remain constant. This essay continues work on the evolution of a "law" beyond that of the domestic legal orders of states and the international law frameworks that serve as an expression of state based collective governance. To that extent, it seeks to liberate theory both from the ideological constraints of the state system and as well from the limitations of earlier work in transnational law. To consider the possibility of global law, of law/governance beyond the state, it is necessary to avoid attaching its framework either to the state or to law (as traditionally and narrowly understood as a product of the state).
Review Essay: Taking a Step Toward a Law for Sovereign Wealth Funds
Social Science Research Network, 2012
In The Law of Sovereign Wealth Funds. Fabio Bassan has taken on a very great challenge. He would ... more In The Law of Sovereign Wealth Funds. Fabio Bassan has taken on a very great challenge. He would provide a legal structure for sovereign wealth fund regulation, and simultaneously, he would interrogate the consequences of the sovereign character of projections of private power between states. But the world he describes is both unified by the logic of globalization. On the one side is the state system, grounded in principles of sovereignty and of the fundamental distinction between the state and everything else, On the other is the emerging system of societally constituted functionally distinct governance organs, grounded in principles of free movement of capital and investment. When they collide only fracture is possible. The more these forces work toward harmonization, the more relentlessly they illuminate the resulting fracture of governance. That is perhaps the greatest insight of Bassan’s masterful effort to organize the law of SWFs. This essay considers that effort.
Social Science Research Network, 2005
This paper examines two visions of the form to be taken by the emerging regime of globalized capi... more This paper examines two visions of the form to be taken by the emerging regime of globalized capital flows where 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 the United Nations Human Rights establishment in Geneva and the Roman Catholic Church on globalization and sovereign debt in opposition to the market driven system elaborated through the IMF and well illustrated by Krueger's proposal for state discipline through bankruptcy.
[23PacRimLPolyJ0251] The Emerging Structures of Socialist Constitutionalism with Chinese Characteristics: Extra-Judicial Detention and the Chinese Constitutional Order
The Autonomous Global Enterprise: On the Role of Organizational Law Beyond Asset Partitioning and Legal Personality
Social Science Research Network, Feb 7, 2006
Abstract: Today, an economic enterprise can insulate its assets within itself. It can disperse it... more 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 ...
Cuba's Integration into the Global Economy How Much is Cuba Expected to Change; How Far is Cuba Willing to Go; and Will the EU Serve as the Mediator of Those Changes?
Social Science Research Network, 2018
The essay considers the question: what internal Cuban legal adjustments will be necessary for Cub... more The essay considers the question: what internal Cuban legal adjustments will be necessary for Cuba to enter into a fully normalized relationship with the U.S. and the rest of the world? That raises three distinct questions made necessary by the profound changes that have occurred between the time U.S. Cuban normalization reached its high point in early 2016, and the changes in the world situation starting with the U.S. 2016 elections and its aftermath. The first question, examined in Part II, centers on consideration of the adjustments Cuba might have to undertake if it is to embed itself within the structures of global trade and finance. To that end, the chapter analyzes the legal changes Cuba would need to undertake to join international financial institutions and global and regional trade organizations. The second question, considered in Part III, examines the extent to which Cuba is disposed to consider these possible reforms. Against the objective of socializing Cuban legal and economic practices with global norms, the chapter will critically assess the extent to which the current Cuban socio-political framework can produce these modifications and the consequences for such limitations, including with respect to the limits of political reform and the relevance of human rights norms in the construction of economic legal and governance structures. The third question, considered in Part IV, then examines what may be possible in the aftermath of the U.S. Presidential election of 2016 (and its aftermath) and other global changes, including the emergence of a Chinese alternative to national embedding in global trade. These have considerably changed the terrain within with the consequences of U.S. - Cuba normalization can be considered. The examination considers the value of the European Union’s strategic initiative, the Political Dialogue and Cooperation Agreement (PDCA) as a viable basis for Cuban reintegration in the global economy.
Tulsa Law Review, 1999
The men of today show a certain duplicity of attitude which is painfully lacerating to women; the... more The men of today show a certain duplicity of attitude which is painfully lacerating to women; they are willing on the whole to accept woman as a fellow human being, an equal; but they still require her to remain the inessential. For her these two destinies are incompatible; she hesitates between one and the other without being exactly adapted to either, and from this comes her lack of equilibrium. With man there is no break between public and private life: the more he confirms his grasp on the world in action and in work, the more virile he seems to be; human and vital values are combined in him. Whereas women's independent successes are in contradiction with her femininity, since the "true woman" is required to make herself object, to be the Other.' Simone de Beauvoir was concerned about the status of women when she wrote this passage. Yet the women's dilemma described by Ms. Beauvoir, the division of the social and cultural world between the public and the private, can be generalized. t Executive Director, Tulsa Comparative and International Law Center, Professor of Law, University of Tulsa College of Law. My thanks to Michael Romano for his research assistance and Taiawagi Helton for his superlative editorial assistance. 1. SIMOE DEBFutVom, THESEcoNDSEX262 (1989 ed.) (1949).
Washington University Global Studies Law Review, May 3, 2014
The role and shape of international trade agreements is changing. No longer simple devices for ea... more The role and shape of international trade agreements is changing. No longer simple devices for easing the movement of goods across borders, they are becoming both an instrument of integrated economic regulation at the supranational level and a tool of international relations within the emerging global economic order. The recently expanded scope of negotiations over the Trans-Pacific Partnership ("TPP") serves as a case in point, one that focuses both on the trilateral relations between Japan, the United States, and China, and on the form of competition for control of the language of supranational economic regulation. The focus of this Article is on the decision by Japan to join the U.S.-led negotiations for a Trans-Pacific Partnership, even as it pushes ahead with a Free Trade Agreement with China and Korea. This decision represents a critical new aspect of Japanese trade relationships that is likely to have significant economic and geopolitical effects. I will first describe the TPP from its genesis as an effort by Brunei, Chile, New Zealand, and Singapore to better integrate their economic relationships into current efforts to create a powerful free trade area of the Pacific that excludes China. I will then elaborate on the central strategic considerations that follow from this important decision in the relationships between Japan, the United States, and China, with emphasis on the way in which this affects contests for control of international rulemaking within the structures of economic globalization. For Japan, the TPP may represent a means to use a necessary containment of its own policy autonomy within complex
Social Science Research Network, Aug 18, 2005
termination.13 In addition, if Disney were to terminate Ovitz without good cause, Ovitz would be ... more termination.13 In addition, if Disney were to terminate Ovitz without good cause, Ovitz would be entitled to a very large severance fee. 14 Ovitz's tenure at Disney was apparently not a great success. By September 1996, Ovitz was alleged to have signaled to Eisner a desire to seek other employment, however Ovitz did not want to resign.' 5 Instead, after some discussion with Eisner, Ovitz and the Disney board agreed to treat Ovitz's departure as a "nonfault termination."' 6 This was memorialized in a letter dated December 27, 1996 (the "Termination Letter").' 7 By 2004 it was still not clear to the Delaware courts whether the Termination Letter had been approved by the board or the members thereof.' 8 As a consequence, Ovitz lost the right to the option to purchase two million shares of Disney stock but instead received approximately 39millionincashandtherighttoexercisetheoptiontopurchasethreemillionshares.19LegalchallengestothevalidityoftheEmploymentAgreementandtheTerminationLetterfollowedwithaderivativeactionfiledinJanuary1997,withindaysoftheexecutionoftheTerminationLetter.20Thelitigationcontinuedthrough2005whenthelawsuitfinallyappearedreadyfor13Id.14Id.TheseverancefeewouldbeequaltothepresentvalueofanyremainingsalarypaymentsthroughSeptember30,2000,a39 million in cash and the right to exercise the option to purchase three million shares. 19 Legal challenges to the validity of the Employment Agreement and the Termination Letter followed with a derivative action filed in January 1997, within days of the execution of the Termination Letter. 20 The litigation continued through 2005 when the lawsuit finally appeared ready for 13 Id. 14 Id. The severance fee would be equal to the present value of any remaining salary payments through September 30, 2000, a 39millionincashandtherighttoexercisetheoptiontopurchasethreemillionshares.19LegalchallengestothevalidityoftheEmploymentAgreementandtheTerminationLetterfollowedwithaderivativeactionfiledinJanuary1997,withindaysoftheexecutionoftheTerminationLetter.20Thelitigationcontinuedthrough2005whenthelawsuitfinallyappearedreadyfor13Id.14Id.TheseverancefeewouldbeequaltothepresentvalueofanyremainingsalarypaymentsthroughSeptember30,2000,a10 million severance payment, a payment of $7.5 million for each fiscal year remaining under the employment agreement, and the immediate vesting of three million share options. Id. 15 Id. at 252.
The EU to the Rescue of the Cuban Economy? the Political Dialogue and Cooperation Agreement (PDCA) and the State of Cuba-EU Economic Relations
Social Science Research Network, 2021
The Political Dialogue and Cooperation Agreement (PDCA) between the E.U. and Cuba was an importan... more The Political Dialogue and Cooperation Agreement (PDCA) between the E.U. and Cuba was an important change in the way that the E.U. sought to engage with developing states. PDCA remains an important milestone for European foreign policy. It has become the template for European engagement with states and a means of projecting European values (either in the form of capacity building or continuous dialogue through trade and structural elements) in trade. Its importance was underlined by the late 2020 negotiations of a similar pact, a “Comprehensive Agreement on Investment,” with the People’s Republic of China. It makes sense, then, to consider the form and substance of Cuba-EU trade through the lens of the PDCA, and that is the object of this paper. The paper is divided into two parts, the first examines the PDCA in detail. In that context it seeks to extract the core bargain the Europe has been willing to strike as the foundation of its trade relationships with states the conduct of which are incompatible with European values and its human rights law. Part 3 then examines the state of trade relations through 2020, and in the shadow of the global pandemic. What appears here is that despite the transformation of driving trade principles, the state of actual trade and investment remains little affected. But that is not what PDCA appears to have bought the E.U. Rather, PDCA is an important element in the project of international normative legalization, that is in the construction of a distinct “common position” grounded in the narratives of the foundational normative principles of liberal democracy, markets and human rights.
Social Science Research Network, 2012
The corporation, like the state from which it preceded and to some extent superseded, can be unde... more The corporation, like the state from which it preceded and to some extent superseded, can be understood in its triadic sense-as sign, interpretant and object. Like the state, it serves as an incarnate abstraction, an object, the sign and interpretant which shimmers with meanings that from a distance appear solid and yet which, on closer inspection, dissolve into a dynamic complex of interlocking and interacting signification. This polycentricity, and its functional effect in law, was at the center of a recent U.S. Supreme Court case, Citizens United v. Federal Election Commission. This paper closely examines Citizens United as an expression of a complex polycentric semiosis. After an introduction, Part II examines the case closely. Part III then draws together the semiotic elements together. The incarnation of the corporation, and its representation as simultaneously political person and property, that is, as person and instrument, signifies both the entity and the person it now simultaneously signifies in ways that suppress and transform both. Citizens United illuminates the object of the corporation as a site of primacy and purpose and also as the place without place or meaning. Within this space of simmering meaning law assumes as fictive a solidity as the enterprise it means to capture through its own craft. What is left is primacy (of the corporation) and purpose within disorder and the absence of meaning, a state of affairs well illustrated in the aftermath of the decision, illustrated in Part IV.
Signs In Law - A Source Book
Springer eBooks, 2015
Jiang Shigong 强世功 on “Written and Unwritten Constitutions” and Their Relevance to Chinese Constitutionalism
Modern China, Dec 16, 2013
Chinese constitutionalism is usually analyzed and found wanting in the West. The deficiencies of ... more Chinese constitutionalism is usually analyzed and found wanting in the West. The deficiencies of Chinese constitutionalism stem in part from its differences from the forms and sensibilities of governmental organization common in the West. But constitutionalism ought not to be reversed engineered to support a particular approach to its operationalization. This article considers the extent to which Chinese constitutionalism is both true to emerging global principles of constitutionalism and how those principles might be applied in a distinctly Chinese way while remaining true to the objectives of transnational constitutionalist principles. The constitutionally significant distinction at the root of the Chinese way of constitutionalism lies in its separation of powers doctrine, one that divides power between political and administrative functions and which does not vest the whole of the power of state in a government. The examination is undertaken through a close engagement with Jiang Shigong’s study of the foundations of Chinese constitutionalism within the context of universalist principles of legitimate constitutional expression.
Current history, Sep 1, 2019
“The Flower of Democracy Blooms Brilliantly in China [中国的民主之花绚丽绽放]”
Routledge eBooks, Nov 4, 2022
Describe, Predict, Intervene! - On Objective Subjectivities and the Simulacra of Semiotics in the New Era; Simulated Signification and of Mechanical Meaning Making in Managing Post-COVID Human Society
Social Science Research Network, 2022
Rights and Accountability in Development v DAS Air and Global Witness v Afrimex: Small Steps towards an Autonomous Transnational Legal System for the Regulation of Multinational Corporations
Melbourne Journal of International Law, May 1, 2009
The Problem of the Enterprise and the Enterprise of Law: Multinational Enterprises as Polycentric Transnational Regulatory Space
In the multinational enterprise (MNE) one encounters entity, connections, and linkages, and funct... more In the multinational enterprise (MNE) one encounters entity, connections, and linkages, and functionally differentiated production chains. Each aspect of the MNE is partially and simultaneously subject to layers of regulatory governance. This chapter explores the effects of these regulatory interventions on shifting constructions of the MNE. To that effect it examines first the relationship between emerging transnational law and an objectified MNE. It then considers the way that the focus and context of transnational law shifts as the regulatory focus moves from MNE as object to the MNE as a set of linkages and connections, and then to the regulation of production through which is itself the object of MNE function. This reconsideration of the character of the MNE produces a substantial effect on the way in which transnational law is understood and applied, matching polycentricity in the construction of law with polycentricity in the construction of the MNE itself.
Globalization and the Socialist Multinational
Transnational Dispute Management, Mar 2, 2009
The Structure of Global Law: Fracture, Fluidity, Permeability, and Polycentricity
Social Science Research Network, Jul 1, 2012
Global law can be understood as the systematization of anarchy, as the management of a loosely in... more Global law can be understood as the systematization of anarchy, as the management of a loosely intertwined universe of autonomous governance frameworks operating dynamically across borders and grounded in functional differentiation among governance communities. Global law is a way of pointing to an emerging universe of systems that share characteristics and whose interactions lend them to organization; it is the as the law of non-state governance systems. The structure of global law can be understood as an amalgamation of four fundamental characteristics that together define a new order in form that is, in some respects, the antithesis of the orderliness and unity of the law-state system it will displace (though not erase). The essay considers the structure of global law in this context, understood as an amalgamation of four fundamental characteristics that together define a new order in form that is, in some respects, the antithesis of the orderliness and unity of the law-state system it will displace (though not erase). These four fundamental characteristics — fracture, fluidity, permeability, and polycentricity — comprise the fundamental structure of global law. Fracture, fluidity, permeability and polycentricity are the basic characteristics of global law, the systematization of which marks its field boundaries. These also serve as the structural foundations of its constitutional element, its substantive element, and its process element. From that systematization one can derive a method of theorizing the emerging framework of the unity of disunity in governance, in which law and governance systems multiply within a discernible internal logic, while the objects of regulation remain constant. This essay continues work on the evolution of a "law" beyond that of the domestic legal orders of states and the international law frameworks that serve as an expression of state based collective governance. To that extent, it seeks to liberate theory both from the ideological constraints of the state system and as well from the limitations of earlier work in transnational law. To consider the possibility of global law, of law/governance beyond the state, it is necessary to avoid attaching its framework either to the state or to law (as traditionally and narrowly understood as a product of the state).
Review Essay: Taking a Step Toward a Law for Sovereign Wealth Funds
Social Science Research Network, 2012
In The Law of Sovereign Wealth Funds. Fabio Bassan has taken on a very great challenge. He would ... more In The Law of Sovereign Wealth Funds. Fabio Bassan has taken on a very great challenge. He would provide a legal structure for sovereign wealth fund regulation, and simultaneously, he would interrogate the consequences of the sovereign character of projections of private power between states. But the world he describes is both unified by the logic of globalization. On the one side is the state system, grounded in principles of sovereignty and of the fundamental distinction between the state and everything else, On the other is the emerging system of societally constituted functionally distinct governance organs, grounded in principles of free movement of capital and investment. When they collide only fracture is possible. The more these forces work toward harmonization, the more relentlessly they illuminate the resulting fracture of governance. That is perhaps the greatest insight of Bassan’s masterful effort to organize the law of SWFs. This essay considers that effort.
Social Science Research Network, 2005
This paper examines two visions of the form to be taken by the emerging regime of globalized capi... more This paper examines two visions of the form to be taken by the emerging regime of globalized capital flows where 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 the United Nations Human Rights establishment in Geneva and the Roman Catholic Church on globalization and sovereign debt in opposition to the market driven system elaborated through the IMF and well illustrated by Krueger's proposal for state discipline through bankruptcy.
[23PacRimLPolyJ0251] The Emerging Structures of Socialist Constitutionalism with Chinese Characteristics: Extra-Judicial Detention and the Chinese Constitutional Order
The Autonomous Global Enterprise: On the Role of Organizational Law Beyond Asset Partitioning and Legal Personality
Social Science Research Network, Feb 7, 2006
Abstract: Today, an economic enterprise can insulate its assets within itself. It can disperse it... more 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 ...
Cuba's Integration into the Global Economy How Much is Cuba Expected to Change; How Far is Cuba Willing to Go; and Will the EU Serve as the Mediator of Those Changes?
Social Science Research Network, 2018
The essay considers the question: what internal Cuban legal adjustments will be necessary for Cub... more The essay considers the question: what internal Cuban legal adjustments will be necessary for Cuba to enter into a fully normalized relationship with the U.S. and the rest of the world? That raises three distinct questions made necessary by the profound changes that have occurred between the time U.S. Cuban normalization reached its high point in early 2016, and the changes in the world situation starting with the U.S. 2016 elections and its aftermath. The first question, examined in Part II, centers on consideration of the adjustments Cuba might have to undertake if it is to embed itself within the structures of global trade and finance. To that end, the chapter analyzes the legal changes Cuba would need to undertake to join international financial institutions and global and regional trade organizations. The second question, considered in Part III, examines the extent to which Cuba is disposed to consider these possible reforms. Against the objective of socializing Cuban legal and economic practices with global norms, the chapter will critically assess the extent to which the current Cuban socio-political framework can produce these modifications and the consequences for such limitations, including with respect to the limits of political reform and the relevance of human rights norms in the construction of economic legal and governance structures. The third question, considered in Part IV, then examines what may be possible in the aftermath of the U.S. Presidential election of 2016 (and its aftermath) and other global changes, including the emergence of a Chinese alternative to national embedding in global trade. These have considerably changed the terrain within with the consequences of U.S. - Cuba normalization can be considered. The examination considers the value of the European Union’s strategic initiative, the Political Dialogue and Cooperation Agreement (PDCA) as a viable basis for Cuban reintegration in the global economy.
Tulsa Law Review, 1999
The men of today show a certain duplicity of attitude which is painfully lacerating to women; the... more The men of today show a certain duplicity of attitude which is painfully lacerating to women; they are willing on the whole to accept woman as a fellow human being, an equal; but they still require her to remain the inessential. For her these two destinies are incompatible; she hesitates between one and the other without being exactly adapted to either, and from this comes her lack of equilibrium. With man there is no break between public and private life: the more he confirms his grasp on the world in action and in work, the more virile he seems to be; human and vital values are combined in him. Whereas women's independent successes are in contradiction with her femininity, since the "true woman" is required to make herself object, to be the Other.' Simone de Beauvoir was concerned about the status of women when she wrote this passage. Yet the women's dilemma described by Ms. Beauvoir, the division of the social and cultural world between the public and the private, can be generalized. t Executive Director, Tulsa Comparative and International Law Center, Professor of Law, University of Tulsa College of Law. My thanks to Michael Romano for his research assistance and Taiawagi Helton for his superlative editorial assistance. 1. SIMOE DEBFutVom, THESEcoNDSEX262 (1989 ed.) (1949).
Washington University Global Studies Law Review, May 3, 2014
The role and shape of international trade agreements is changing. No longer simple devices for ea... more The role and shape of international trade agreements is changing. No longer simple devices for easing the movement of goods across borders, they are becoming both an instrument of integrated economic regulation at the supranational level and a tool of international relations within the emerging global economic order. The recently expanded scope of negotiations over the Trans-Pacific Partnership ("TPP") serves as a case in point, one that focuses both on the trilateral relations between Japan, the United States, and China, and on the form of competition for control of the language of supranational economic regulation. The focus of this Article is on the decision by Japan to join the U.S.-led negotiations for a Trans-Pacific Partnership, even as it pushes ahead with a Free Trade Agreement with China and Korea. This decision represents a critical new aspect of Japanese trade relationships that is likely to have significant economic and geopolitical effects. I will first describe the TPP from its genesis as an effort by Brunei, Chile, New Zealand, and Singapore to better integrate their economic relationships into current efforts to create a powerful free trade area of the Pacific that excludes China. I will then elaborate on the central strategic considerations that follow from this important decision in the relationships between Japan, the United States, and China, with emphasis on the way in which this affects contests for control of international rulemaking within the structures of economic globalization. For Japan, the TPP may represent a means to use a necessary containment of its own policy autonomy within complex
Social Science Research Network, Aug 18, 2005
termination.13 In addition, if Disney were to terminate Ovitz without good cause, Ovitz would be ... more termination.13 In addition, if Disney were to terminate Ovitz without good cause, Ovitz would be entitled to a very large severance fee. 14 Ovitz's tenure at Disney was apparently not a great success. By September 1996, Ovitz was alleged to have signaled to Eisner a desire to seek other employment, however Ovitz did not want to resign.' 5 Instead, after some discussion with Eisner, Ovitz and the Disney board agreed to treat Ovitz's departure as a "nonfault termination."' 6 This was memorialized in a letter dated December 27, 1996 (the "Termination Letter").' 7 By 2004 it was still not clear to the Delaware courts whether the Termination Letter had been approved by the board or the members thereof.' 8 As a consequence, Ovitz lost the right to the option to purchase two million shares of Disney stock but instead received approximately 39millionincashandtherighttoexercisetheoptiontopurchasethreemillionshares.19LegalchallengestothevalidityoftheEmploymentAgreementandtheTerminationLetterfollowedwithaderivativeactionfiledinJanuary1997,withindaysoftheexecutionoftheTerminationLetter.20Thelitigationcontinuedthrough2005whenthelawsuitfinallyappearedreadyfor13Id.14Id.TheseverancefeewouldbeequaltothepresentvalueofanyremainingsalarypaymentsthroughSeptember30,2000,a39 million in cash and the right to exercise the option to purchase three million shares. 19 Legal challenges to the validity of the Employment Agreement and the Termination Letter followed with a derivative action filed in January 1997, within days of the execution of the Termination Letter. 20 The litigation continued through 2005 when the lawsuit finally appeared ready for 13 Id. 14 Id. The severance fee would be equal to the present value of any remaining salary payments through September 30, 2000, a 39millionincashandtherighttoexercisetheoptiontopurchasethreemillionshares.19LegalchallengestothevalidityoftheEmploymentAgreementandtheTerminationLetterfollowedwithaderivativeactionfiledinJanuary1997,withindaysoftheexecutionoftheTerminationLetter.20Thelitigationcontinuedthrough2005whenthelawsuitfinallyappearedreadyfor13Id.14Id.TheseverancefeewouldbeequaltothepresentvalueofanyremainingsalarypaymentsthroughSeptember30,2000,a10 million severance payment, a payment of $7.5 million for each fiscal year remaining under the employment agreement, and the immediate vesting of three million share options. Id. 15 Id. at 252.
The EU to the Rescue of the Cuban Economy? the Political Dialogue and Cooperation Agreement (PDCA) and the State of Cuba-EU Economic Relations
Social Science Research Network, 2021
The Political Dialogue and Cooperation Agreement (PDCA) between the E.U. and Cuba was an importan... more The Political Dialogue and Cooperation Agreement (PDCA) between the E.U. and Cuba was an important change in the way that the E.U. sought to engage with developing states. PDCA remains an important milestone for European foreign policy. It has become the template for European engagement with states and a means of projecting European values (either in the form of capacity building or continuous dialogue through trade and structural elements) in trade. Its importance was underlined by the late 2020 negotiations of a similar pact, a “Comprehensive Agreement on Investment,” with the People’s Republic of China. It makes sense, then, to consider the form and substance of Cuba-EU trade through the lens of the PDCA, and that is the object of this paper. The paper is divided into two parts, the first examines the PDCA in detail. In that context it seeks to extract the core bargain the Europe has been willing to strike as the foundation of its trade relationships with states the conduct of which are incompatible with European values and its human rights law. Part 3 then examines the state of trade relations through 2020, and in the shadow of the global pandemic. What appears here is that despite the transformation of driving trade principles, the state of actual trade and investment remains little affected. But that is not what PDCA appears to have bought the E.U. Rather, PDCA is an important element in the project of international normative legalization, that is in the construction of a distinct “common position” grounded in the narratives of the foundational normative principles of liberal democracy, markets and human rights.
Social Science Research Network, 2012
The corporation, like the state from which it preceded and to some extent superseded, can be unde... more The corporation, like the state from which it preceded and to some extent superseded, can be understood in its triadic sense-as sign, interpretant and object. Like the state, it serves as an incarnate abstraction, an object, the sign and interpretant which shimmers with meanings that from a distance appear solid and yet which, on closer inspection, dissolve into a dynamic complex of interlocking and interacting signification. This polycentricity, and its functional effect in law, was at the center of a recent U.S. Supreme Court case, Citizens United v. Federal Election Commission. This paper closely examines Citizens United as an expression of a complex polycentric semiosis. After an introduction, Part II examines the case closely. Part III then draws together the semiotic elements together. The incarnation of the corporation, and its representation as simultaneously political person and property, that is, as person and instrument, signifies both the entity and the person it now simultaneously signifies in ways that suppress and transform both. Citizens United illuminates the object of the corporation as a site of primacy and purpose and also as the place without place or meaning. Within this space of simmering meaning law assumes as fictive a solidity as the enterprise it means to capture through its own craft. What is left is primacy (of the corporation) and purpose within disorder and the absence of meaning, a state of affairs well illustrated in the aftermath of the decision, illustrated in Part IV.
Signs In Law - A Source Book
Springer eBooks, 2015
Jiang Shigong 强世功 on “Written and Unwritten Constitutions” and Their Relevance to Chinese Constitutionalism
Modern China, Dec 16, 2013
Chinese constitutionalism is usually analyzed and found wanting in the West. The deficiencies of ... more Chinese constitutionalism is usually analyzed and found wanting in the West. The deficiencies of Chinese constitutionalism stem in part from its differences from the forms and sensibilities of governmental organization common in the West. But constitutionalism ought not to be reversed engineered to support a particular approach to its operationalization. This article considers the extent to which Chinese constitutionalism is both true to emerging global principles of constitutionalism and how those principles might be applied in a distinctly Chinese way while remaining true to the objectives of transnational constitutionalist principles. The constitutionally significant distinction at the root of the Chinese way of constitutionalism lies in its separation of powers doctrine, one that divides power between political and administrative functions and which does not vest the whole of the power of state in a government. The examination is undertaken through a close engagement with Jiang Shigong’s study of the foundations of Chinese constitutionalism within the context of universalist principles of legitimate constitutional expression.
Current history, Sep 1, 2019
“The Flower of Democracy Blooms Brilliantly in China [中国的民主之花绚丽绽放]”
Routledge eBooks, Nov 4, 2022
Describe, Predict, Intervene! - On Objective Subjectivities and the Simulacra of Semiotics in the New Era; Simulated Signification and of Mechanical Meaning Making in Managing Post-COVID Human Society
Social Science Research Network, 2022
Rights and Accountability in Development v DAS Air and Global Witness v Afrimex: Small Steps towards an Autonomous Transnational Legal System for the Regulation of Multinational Corporations
Melbourne Journal of International Law, May 1, 2009
The Problem of the Enterprise and the Enterprise of Law: Multinational Enterprises as Polycentric Transnational Regulatory Space
In the multinational enterprise (MNE) one encounters entity, connections, and linkages, and funct... more In the multinational enterprise (MNE) one encounters entity, connections, and linkages, and functionally differentiated production chains. Each aspect of the MNE is partially and simultaneously subject to layers of regulatory governance. This chapter explores the effects of these regulatory interventions on shifting constructions of the MNE. To that effect it examines first the relationship between emerging transnational law and an objectified MNE. It then considers the way that the focus and context of transnational law shifts as the regulatory focus moves from MNE as object to the MNE as a set of linkages and connections, and then to the regulation of production through which is itself the object of MNE function. This reconsideration of the character of the MNE produces a substantial effect on the way in which transnational law is understood and applied, matching polycentricity in the construction of law with polycentricity in the construction of the MNE itself.