Sunday, February 19, 2017

Chapter 7 (Chapter Summaries) "Beyond Law: Governance and Legal Effects of Law in Social Norms, Contract Communities, and Disclosure Regimes" From "Elements of Law and the United States Legal System"

(Washington Monument Pix © Larry Catá Backer 2016)

I recently announced the forthcoming publication by Carolina Academic Press of my Elements of Law and the United States Legal System (ISBN: 978-1-61163-927-8 • e-ISBN: 978-1-61163-984-1).

The work made sense as a century of legalization (here and here) and judicialization (here and here) forces more and more people worldwide to bump up against aspects of aspects of the U.S: legal system.  The system is a complex amalgamation of distinct approaches to legalization, and the mechanics of its implementation, that  tends to be mystifying to everyone, even individuals trained in law elsewhere. Most people tend to be hard pressed to explain the U.S. legal system either to non-lawyers or to foreigners, even sophisticated foreign lawyers or jurists, or for that matter to each other. Most would find it difficult unravel the distinct strands of law in the United States, each of which deeply embedded within their own internally coherent systems of generation, interpretation and application. The object of the book is to make the elements of law within the U.S. legal system more accessible and easier to invoke.

This set of posts provide interested readers with a more detailed description-summary of each chapter along with teaching objectives. After these descriptions I will circulate a chapter by chapter based draft Teacher's Manual. Comments welcome for all. 

All contents posted on line may be accessed here:


Summary book organization and Chapter 7 Summary follows.


Friday, February 17, 2017

"Sovereign Conduct on the Margins of the Law" Notes From the Symposium Hosted by the Vanderbilt Journal of Transnational Law



Issues surrounding sovereignty have received increasing attention over the last few years, most recently in Congress’s decision regarding Saudi Arabian immunity. The Vanderbilt Journal of Transnational Law hosted four panels around the themes of legalization of sovereignty within globalization. Sovereign conduct is considered at the margins of the public and private spheres, and at the juncture of law and politics especially in the transnational sphere. More specifically the issues coalesce around sovereign power and money--finance and economics. The panels explored various facets of these issues, such as: the involvement of sovereigns in cyber-crime; terrorism financing, the immunity aspects of state owned enterprises; and the problems surrounding sovereign debt crises. Participants in these panels included practitioners and academics with expertise in each of these topics. This symposium was held at the Vanderbilt Law School on Friday February 17, 2017.

This post includes the Conference Program and summary observations on each of the presentations, all of which follow, below. 

Chapter 6 (Chapter Summaries) Law Articulated by Regulatory Agencies; "Elements of Law and the United States Legal System"

(Washington Monument Pix © Larry Catá Backer 2016)

I recently announced the forthcoming publication by Carolina Academic Press of my Elements of Law and the United States Legal System (ISBN: 978-1-61163-927-8 • e-ISBN: 978-1-61163-984-1).

The work made sense as a century of legalization (here and here) and judicialization (here and here) forces more and more people worldwide to bump up against aspects of aspects of the U.S: legal system. The system is a complex amalgamation of distinct approaches to legalization, and the mechanics of its implementation, that tends to be mystifying to everyone, even individuals trained in law elsewhere. Most people tend to be hard pressed to explain the U.S. legal system either to non-lawyers or to foreigners, even sophisticated foreign lawyers or jurists, or for that matter to each other. Most would find it difficult unravel the distinct strands of law in the United States, each of which deeply embedded within their own internally coherent systems of generation, interpretation and application. The object of the book is to make the elements of law within the U.S. legal system more accessible and easier to invoke.

This set of posts provide interested readers with a more detailed description-summary of each chapter along with teaching objectives. After these descriptions I will circulate a chapter by chapter based draft Teacher's Manual. Comments welcome for all.

All contents posted on line may be accessed here:


Summary book organization and Chapter 6 Summary follows.


Thursday, February 16, 2017

沉思录69/民主部分 38:“看哪,弟兄和睦同居是何等地善,何等地美!” ——关于特朗普总统的就职演讲的评论Ruminations 69/Democracy Part 38: "Behold, how good and how pleasant it is for brethren to dwell together in unity!": On President Trump's Inaugural Speech

(Donald Trump pix © ABC News)

中国语文 only
ENGLISH VERSION HERE

 
沉思录69/民主部分 38:“看哪,弟兄和睦同居是何等地善,何等地美!”
——于特朗普总统的就评论


(Larry Catá Backer)

美国人喜戏剧。每次政党更替时,所有事物仿佛都成摩尼教一样的非黑即白,扎在光明与黑暗之间,而且黑暗力量似乎已经最后的战役做好了准备,蓄势待发。此时此刻的社会,光明的一面亦藏有黑暗,黑暗的一面也蓄着光明。在这种政局力量变的时刻,非黑即白的思想形更加明

虽然这两股截然相反力量互相视彼此,持的立也各自相反,但它往往都是从同一个渊源中汲取指,从相同的愿景中找力量。这里的渊源即犹太教和基督教的《圣经》(在此,我尽力避免使用有争性的名称《旧》和《新》),在美国的动时期,《圣经》在很大程度上有着指引作用。这一点在美国总统的就中体得最,尤其是当他的当选代表了某一种愿景的胜利的时候。(即便因美国的政体设置,这种胜利可能并不是巨大的,或者完全覆性的。)

八年前,在与今天的胜利和憾有些相似的总统选中,我写下了这样的

自美国建国以,尤其是革命时期的峰时期,政治演的一个著特点在于演者会按照个人风格圣经。奥马巴总统不仅在宣誓就时使用了林肯曾使用的圣经,而且在演修辞中都以林肯总统象征意义。奥巴马总统即将林肯总统比作母亲,这位母亲不仅解放了黑奴,就像予孩子分娩一样使他获得自由,而且这位母亲是在美国这个大家庭遭遇危机时的守护者。1861年到2009年,正是从奴隶解放到林肯这位母亲的后代成总统的过程,时代行至此是如此名正言

2009年,我有兴致地期待着第44届总统的就会选哪一段圣经,这个选将决定第44届总统的第一步会怎么走。奥巴马先生选了哥林多前138-13(国际准版本),我回了自己对于奥巴马总统就的分析:Democracy Part XIV: “For Now We See Through A Glass, Darkly; But Then Face to Face”; On President Obama's Inauguration Speech,发这个演精确地指向了奥巴马政府治理国家的基本愿景和原

在这篇我对奥巴马总统就的分析中,我写道:
林肯总统偏福音教士,奥巴马了基督教的造者——犹太人保。奥巴马的就到慈善之美德和人对于家庭的、对于处于全球视角下的美国的,这体出奥巴马政府将和前任政府一样,致力于统一主流价值,向世界呈出一个政治、道德和社会治理的普世基
这种哲学的实其实是基于理想主义而不切实际的。很多东西可以去警示左派和右派的人,无对他而言是胜利还是失,都没有理由自自得,或是就此止步。

总统演所能达出的信号之有趣,使得我同样在2017年的大选中期待着特朗普先生的就,及他选如何解圣经,这份解志着第45届美国总统如何执政。2017120日,特朗普总统在其就中,选了《先知》和《篇》,确切地,是以 426,耶米利 3131-33,和 133

这篇文章旨在推敲特朗普总统的就中所体出的意义和基本前提,我最好将其与第44届总统的就对照,因从某种意义上,第44届总统是和特朗普相对立的双生子。下文有特朗普就的全文,这里可以查看更多有着统共的分析


Wednesday, February 15, 2017

Chapter 5 (Chapter Summaries) Law Articulated by Legislatures: Statutory Law: "Elements of Law and the United States Legal System"

(Washington Monument Pix © Larry Catá Backer 2016)

I recently announced the forthcoming publication by Carolina Academic Press of my Elements of Law and the United States Legal System (ISBN: 978-1-61163-927-8 • e-ISBN: 978-1-61163-984-1).

The work made sense as a century of legalization (here and here) and judicialization (here and here) forces more and more people worldwide to bump up against aspects of aspects of the U.S: legal system.  The system is a complex amalgamation of distinct approaches to legalization, and the mechanics of its implementation, that  tends to be mystifying to everyone, even individuals trained in law elsewhere. Most people tend to be hard pressed to explain the U.S. legal system either to non-lawyers or to foreigners, even sophisticated foreign lawyers or jurists, or for that matter to each other. Most would find it difficult unravel the distinct strands of law in the United States, each of which deeply embedded within their own internally coherent systems of generation, interpretation and application. The object of the book is to make the elements of law within the U.S. legal system more accessible and easier to invoke.
All contents posted on line may be accessed here:


Summary book organization and Chapter 5 Summary follows.


Tuesday, February 14, 2017

Ruminations 71: Thoughts on Martha Minow and Robert Post, "Standing Up for 'So-Called' Law"


中国语文 VERSION HERE.

A large section of the American intellectual elite has been wary of the election of the 45th President, and more worries still from the evidence of the trajectory of his presidency from his actions after January 20, 2017.  To a great extent this wariness and its public expression is to be lauded--it is the great hallmark of this Republic that its elites can both fracture and aggressively push forward their opposition to the actions of the Republic's political leaders (e.g., here).

The habit of the 45th President to tweet his thoughts, and to opine on current events touching on his presidency, has also raised hackles--especially among those most offended by their contents (e.g., here, here, here and here). That also is fair--as politics.  On the other hand, there may be a sense that the critique a bit fussy and old fashioned suspicion that novel uses of new technologies in politics  can only lead to bad things, especially when used in the way pioneered by the 45th President. 

Critiques, however, have started to take the 45th President's tweeting more seriously.  On January 27, 2017 the 45th President  issued the Executive Order: Protecting the Nation From Foreign Terrorist Entry into the United States. That Executive order causes confusion at airports, strong counter reactions among people who called it a "Muslim Ban" (here, here, and here), and lawsuits. An initial effort to block the Executive Order from a New York federal district court was ignored (here). Thereafter a federal district court judge issued a nationwide injunction (here, and here) that produced a set of tweets from the President (set out above) that itself provoked additional reaction (here, here, here and here).  
"I know there's a fear among the judiciary with what's being said," said John Muffler, a former U.S. marshal who teaches security at the Reno, Nevada-based National Judicial College. He cited professional contacts and email exchanges with judges.The president's critical comments have consequences, he added, because "people on the edge can easily be pushed over the edge once the rhetoric gets going." (Trump Attacks on Judiciary Raise Safety Concerns for Judges Fortune 11 Feb 2017)
Thereafter the injunction was affirmed by the 9th Circuit (here).  As of this writing it is not clear how the administration will respond.

The deans of the law schools at Harvard and Yale, Martha Minow and Robert Post, also saw in these tweets an opportunity to add their voices to the political discussion.  Their decision to lend their quite self consciously influential voices (at least within their peer groups and in their industry) merits reflection both for its thoughtful content and for the character of the intervention--quite consciously public. The opinion essay, Standing up for ‘so-called’ law, is reproduced below along with some brief comments about the opinion essay--focusing on it as rhetoric and politics.

Monday, February 13, 2017

February 2017 Newsletter From John Knox, Special Rapporteur on Human Rights and the Environment--From Bio-Diversity and Human Rights to the Dakotah Access Pipeline


John H. Knox, UN Special Rapporteur on human rights and the environment (former Independent Expert on Human Rights and the Environment) and Henry C. Lauerman Professor of International Law has been advancing his mandate. (See HEREHERE, HERE, and HERE, HERE, HEREHERE. and HERE) .





Professor Knox has just released his February 2017 progress report on the work of his office. It makes for interesting reading. Two points are worth noting. The first touches on the Annual Report on Biodiversity and Human Rights. The report strengthens the case for the increasingly important aggregation of issues of environment and sustainability on the one hand, and fundamental human rights on the other. Both fields have evolved with knowledge of the other but committed to their own self referencing autonomy grounded in their inward looking core premises and the maintenance of field and jurisdictional boundaries.  The resulting incentives to develop along different paths and to only occasionally join for mutual benefit on what may be perceived to be shared goals has hampered the work of both areas. This divergence is not unique to environmental human rights discourses; the ideologies, practices and outlooks of business and those of human rights have also moved along parallel but not converging lines, to the great detriment of both.  It is recognized that
 The loss of biodiversity may interfere with the enjoyment of a wide range of human rights, including the rights to life, health, food, livelihood, water, housing, culture. The rights of indigenous peoples and others particularly reliant on healthy ecosystems are especially subject to threat. Biodiversity and human rights are closely linked and interdependent. The full enjoyment of many human rights depends on healthy ecosystems; at the same time, effective biodiversity policies depend on the exercise of human rights, including rights to information and participation, and require taking into account the rights of those who live in protected areas or who are otherwise directly affected by the policies. (Biodiversity and Human Rights)
Lamentably, the operationalization of the sentiments in statements of this kind points to where substantial work still needs to be done. In the absence of the development of shared principles, and of methodologies  and pathways toward linkages, the statement will remain essentially hortatory.  What may be required is the sort of quite targeted fact finding that supports better joint approaches (e.g., how does biodiversity loss specifically affects specific human rights in specific contexts, etc.).  Without that sort of joint work little progress, other than a refinement of rhetoric, will be possible. To that end, the human rights community has a responsibility to embed issues of environment and sustainability in ways that have not been fully developed in their field. As Prof. Knox notes: "Despite the close linkages, the two areas have often developed in parallel and in isolation from each other. Their relationship is not well-understood or clearly defined. There is a gap in assessing biodiversity/ecosystems policies from a human rights perspective. Furthermore, there is a need to clarify States’ human rights obligations pertaining to policies on biodiversity/ecosystems." (here)

The second touches on the Dakotah Access Pipeline. The Special Rapporteur has joined with the Special Rapporteur  on the Rights of Indigenous Peoples to halt construction and engage in consultation with affected communities and with the Special Rapporteur on the rights to freedom of peaceful assembly and association criticizing the use of state power in the context of the protests. In the face of the reconstruction of American approaches to both international law and multilateralism the consequences and impact of the call to halt construction will be interesting, even if that reaction is merely to ignore the call itself. Indeed, both the call to halt construction and the criticism of internal security forces nicely evidences the limits of the conventional approaches to international legalization within which these were framed.

The Newsletter follows with links to the reports. 


Sunday, February 12, 2017

Chapter 4 (Chapter Summaries) Law Articulated by the Courts: Equity; "Elements of Law and the United States Legal System"




(Washington Monument Pix © Larry Catá Backer 2016)

I recently announced the forthcoming publication by Carolina Academic Press of my Elements of Law and the United States Legal System (ISBN: 978-1-61163-927-8 • e-ISBN: 978-1-61163-984-1).

The work made sense as a century of legalization (here and here) and judicialization (here and here) forces more and more people worldwide to bump up against aspects of aspects of the U.S: legal system.  The system is a complex amalgamation of distinct approaches to legalization, and the mechanics of its implementation, that  tends to be mystifying to everyone, even individuals trained in law elsewhere. Most people tend to be hard pressed to explain the U.S. legal system either to non-lawyers or to foreigners, even sophisticated foreign lawyers or jurists, or for that matter to each other. Most would find it difficult unravel the distinct strands of law in the United States, each of which deeply embedded within their own internally coherent systems of generation, interpretation and application. The object of the book is to make the elements of law within the U.S. legal system more accessible and easier to invoke.


All contents posted on line may be accessed here:


Summary book organization and Chapter 4 Summary follows.


Saturday, February 11, 2017

No.175-1 章永乐:旧邦新造的历史文化基因 (No.175-1 Zhang Yongle: The old state of the new historical and cultural genes)



This is another in the series of essays that were presented at the “来华外国人与近代中国法” 国际学术研讨会 "Foreigners and Modern Chinese Law" International Symposium Conference and then continued thereafter in the same spirit.

No.175-1 章永乐:旧邦新造的历史文化基因; No. 175 No.175-1 Zhang Yongle: The old state of the new historical and cultural genes.

In this essay Zhang Yongle speaks to the socio-cultural and religious foundations of Manchu Imperial rule and its effects in shaping the political culture of China in the period immediately preceding the Republic.  He also notes the continuing effects of this late Imperial system on Chinese political culture. He starts by arguing that the Qing Dynasty's ruling system had  a strong specificity: the rule of the dynasty was founded on a quite specific and comprehensive alliance between Manchu, Mongolian, and Tibetan elites. In addition to the political and military dimensions, the Manchu, Mongolian and Tibetan alliance structure had a strong religious bond in Tibetan Buddhism. Understanding this political integration through the religious culture is necessary fully understand the impact of the fall of the emperor on Chinese civic life. The Imperial system was not just a political structure, it was a cultural psychological structure. The emperor was regarded as the emperor, the stability of the monarchy is related to the stability of daily life of hundreds of millions of people. Once the Imperial system was swept aside, there was not just a political vacuum, but also a cultural vacuum. The Republic needed to create an alternative to the cultural functions that the emperor had previously assumed. Without it the new system lacked cultural support, and resulted in a systemic fragility.

The essay was posted to 叁會學坊, the San Hui Fang Workshops microblog and it follows below 中国语文 only.

Friday, February 10, 2017

Chapter 3 (Chapter Summaries) Law Articulated by Courts: The Common Law: "Elements of Law and the United States Legal System"




(Washington Monument Pix © Larry Catá Backer 2016)

I recently announced the forthcoming publication by Carolina Academic Press of my Elements of Law and the United States Legal System (ISBN: 978-1-61163-927-8 • e-ISBN: 978-1-61163-984-1).

The work made sense as a century of legalization (here and here) and judicialization (here and here) forces more and more people worldwide to bump up against aspects of aspects of the U.S: legal system.  The system is a complex amalgamation of distinct approaches to legalization, and the mechanics of its implementation, that  tends to be mystifying to everyone, even individuals trained in law elsewhere. Most people tend to be hard pressed to explain the U.S. legal system either to non-lawyers or to foreigners, even sophisticated foreign lawyers or jurists, or for that matter to each other. Most would find it difficult unravel the distinct strands of law in the United States, each of which deeply embedded within their own internally coherent systems of generation, interpretation and application. The object of the book is to make the elements of law within the U.S. legal system more accessible and easier to invoke.

All contents posted on line may be accessed here:


Summary book organization and Chapter 3 Summary follows.