Larry Catá Backer

Pennsylvania State University

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Jan M. Broekman

Pennsylvania State University

Keren Wang

Pennsylvania State University

Flora Sapio

University of Naples - L'Orientale

Bret Stancil

California University of Pennsylvania

Nabih Haddad

Harvard University

Rachel Anderson

Center for Public Justice

Erika George

University of Utah

James Korman

University of Delaware

Augusto Molina

Peninsula Library System

Tomonori Teraoka

University of Pittsburgh

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Harvard University

Pennsylvania State University

University of California, Berkeley

Rutgers, The State University of New Jersey

Fudan University

University of Nevada, Las Vegas

School of International Relations

Stanford University

Brandeis University

Australian National University

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PANEL: WELFARE/SOCIAL JUSTICE: WHERE DO WE GO FROM HERE?

Western New England law review (1997)

Rebecca Johnson Dianne Wilkerson Lynne Polito Larry Catá Backer

Social Justice

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From Constitution to Constitutionalism: A Framework for Analysis of Nationalist and Transnational Constitutionalism

Larry Catá Backer

Constitutionalism

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Linking People to Governing Institutions Through Leninist Political Parties: 全过程民主 (Whole Process Democracy), Socialist Consultative Democracy, and 《中国新型政党制度》 (China's New Political Party System)

SSRN Electronic Journal (2022)

Larry Catá Backer

The role of political parties in the Chinese democratic socialist political order has always been deeply misunderstood, even within Chinese academic and popular circles. The misunderstanding at a macro level is likely a product of great ideological battles of the last century between liberal democratic and Marxist Leninist approaches to the organization of states, the positioning of political authority and its exercise through political parties--mass collectives developed for that purpose. These organizational differences reflect an even deeper conceptual gap between the way that these ideologies construct and apply the notion of party within their democratic imaginaries. Though both systems use the same word to describe collective political organization—the ideological basis of the meaning of that term could not produce a greater distance in the way in which meaning is embedded in those terms. This study takes a deeper dive into the current elaboration of the political theory of Chinese socialist constitutional democracy, the role of political parties within it, and the connection between the people and both. To those ends, the study focuses on three key documents produced by the Chinese State Council: (1) 《中国新型政党制度》 (China's New Political Party System; 25 June 2021); (2) : 中国的民主 (China: Democracy That Works; 4 December 2021); and (3) [美国民主情况] (The State of Democracy in the United States; 5 December 2021). Through the lens of these contemporary elaborations of Chinese Marxist-Leninist theory, the study considers the hypothesis: 'the emerging theory of Leninist political parties contributes to the development of a coherent theory of endogenous socialist constitutional democracy.' It's subsidiary hypothesis is that at least conceptually, the transformation of the 'mass line' principle into 'whole process democracy' provides a basis within Leninist political theory to link the people to their state institutions through the structuring of a system of well managed mass political organizations under the leadership of the vanguard.

Direct Democracy

Representative democracy

Political system

Political process

10.2139/ssrn.4134483

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Signs In Law - A Source Book

Springer eBooks (2014)

Jan M. Broekman Larry Catá Backer

10.1007/978-3-319-09837-1

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Between State, Company, and Market: A Preliminary Engagement on the Business and Human Rights Obligations of States and State Owned Enterprises (SOEs)

SSRN Electronic Journal (2016)

Larry Catá Backer

This past summer, the Working Group on the Issue of Human Rights and Transnational Corporations and other Business Enterprises delivered its 2016 Report to the U.N. Human Rights Council. The focus of that report was the relationship of states and state owned enterprises to the state duty to protect and the corporate responsibility to respect human rights at the core of the United Nations Guiding Principles for Business and Human Rights. Part II develops a deep analysis of the 2016 WG Report, interrogating its conceptual framework and its implantation programs. Part III then briefly considers the work left to be done: from conceptual lacunae to implementation. It consists of a set of ten (10) challenges and recommendations for further development. These recommendations and challenges suggest that issues of corporate personality, of sovereign immunity, of asset partition, and of the mania for compartmentalization that marks certain approaches to global economic and financial regulation may well hobble the work of embedding human rights within the operation of states as owners and SOEs as public enterprises. More importantly they suggest the difficulty of the current strongly held consensus that the focus of regulatory governance must be grounded in and through a formally constituted enterprise, the SOE, rather than focusing regulation on economic activity irrespective of the form in which it is undertaken. Until these conceptual issues are considered the regulation of economic activates — SOEs, supply chains, multinational corporations, will remain elusive.

Conceptual framework

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On the Tension between Public and Private Governance in the Emerging Transnational Legal Order: State Ideology and Corporation in Polycentric Asymmetric Global Orders

SSRN Electronic Journal (2012)

Larry Catá Backer

This essay considers the tension between public and private governance in the emerging transnational legal order. The focus of examination is the corporation, which is where this tension is most in evidence. The analysis starts with the greatest structural impediment to the consideration of the tension between public and private in the transnational ordering of the corporation — the ideology of the state order, which disguises alternative governance orders and the governments through which they are operationalized. It is with the effects of the ideology of the state order that the analytical limitations of analysis become clearer, the object of Section II. More importantly, the exposure of the ideology of the state reveals the extent to which it can bend the objectives of analysis from one that follows reality on the ground to one that takes that bends that reality around the state. That bending can produce substantial effects on the structure of debate and the possibilities for understanding institutional changes in behavior that quite directly challenge the normative presumptions of the privileged ideology. This effect can be exaggerated when changes appear to threaten the hierarchies built into governing ideologies. Sections III and IV explore the power of ideology in framing analysis in Gunther Teubner’s conception of the reality of self-constitutionalizing organization outside the state and in Peer Zumbansen’s excellent theorizing of transnational law as method. Both suggest the ways in which the ideologies of framing analysis can color both the way in which relationships are understood and the objectives of analysis are formed. Section V then posits an alternative analysis, freer (though not entirely free) of the orbit of the state, a vision possible only when the ideological presumptions of the state are suspended.

Corporation

Public order

Global Governance

10.2139/ssrn.2038103

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Narrative and Jurisprudence in State Courts: The Example of Constitutional Challenges to Sex Conduct Regulation

Albany law review (1997)

Larry Catá Backer

Success in these matters is as mathematicians would say, a function of the advance we have made in civilization.... We must not expect too much from formal changes; we may put our finger on this or on that which may be amended, and if it is done it may help, but the fundamentals he elsewhere. You get out of a community what there is in it,' ... and neither laws nor principalities nor powers will in the end help you one jot or tittle.(1) Common wisdom has it that courts or juries facts. Rules, legally binding conduct norms, are then applied to these facts in order to make a judgment about the culpability or liability of one party either to the state or to another. It is all supposed to be very mechanical. The subtlety is not in the narrative, but in the public policy choices over which courts must occasionally agonize, or more likely nowadays, defer to the agony of the legislature. My purpose here is to argue that the traditional model has it backwards. I believe that the standard model must be stood on its head in order to understand the real relationship between facts and norms in the following way: Much of our jurisprudence is embedded in facts. The we relate or find facts suggests the outcome; factual descriptions are inherently judgmental. They are judgmental in the that words all tend to be at once descriptive as well as a judgment of the thing described: for example, the word whore. The basis of that judgment, of course, is the set of underlying socio-cultural norms of the society. This sort of judgment is intuitive; it is attached to the words we use to describe any thing or event without any effort on our part (other than in the choice we make of the words we use to describe). Thus understood, the facts themselves have strong jurisprudential qualities. At this point, one might reasonably be heard to argue that any single set of facts gathered in a single case would tend to have limited value, even if the facts have jurisprudential value. But courts are in the business of collecting facts. And the facts so collected are published and widely disseminated among other judges. We assume case reports are important for their precedential value (in the particular jurisdiction) and also more generally for the they may teach other judges how and why the rules of general applicability But the case reports become more important as the repositories of the stories they preserve about human behavior. Similar stories reported over and over and over begin to assume the status of truth. They begin to incorporate their own judgment in their very telling. Thus, I hope to demonstrate to you that case reports are more valuable as repositories of narrative, than as a piece-meal common law rule books. The stories judges hear, retell and choose to preserve are the textbooks of applied cultural sociology from which the judiciary (primarily), but also the bar and general public, are taught to understand the world, and the underlying basic social norms on which society is based. In effect, the narrative of the cases provide the judiciary with its primer of the way things work. As such, these collections of accumulated facts create repetitive realities. They are repetitive because they seem to occur in case after case reported to the judiciary. They are realities because they repeat; they assume the power of common-knowledge of human nature. These realities are the ground zero from which all parties start in any judicial action. And the reality is essentially narrative based -- litigant folktales in which social (and legal) judgment is embedded into the telling of the story itself. Because repetitive narrative serves as story with a moral, accumulated judicial reality affects litigation in two ways. First, these fabricated realities can affect the a court views the set of facts in any singular case. …

Culpability

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Aligning emerging global strategies to combat corporate corruption: From a "two thrust approach" to a "two swords one thrust strategy" of compliance, prosecutorial discretion, and Sovereign investor oversight in China

International Lawyer (2019)

Larry Catá Backer

Language Change

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'Order, Discipline and Exigency': Cuba's VIth Party Congress, the Lineamientos (Guidelines) and Structural Change in Education, Sport and Culture?

SSRN Electronic Journal (2011)

Larry Catá Backer

The Lineamientos de la política económica y social del partido y la Revolución approved April 2011 has the potential to significantly alter the social, economic and political organization of the Cuban state. Though they remain true to the fundamentals of the Marxist-Leninist State-Party system, the Lineamientos conceive anew the normative basis of state operation. This essay examines the Social Politics (Política Social) provisions of the Lineamientos. These target the great cultural-political achievements of the Revolution — medical care, education, culture, sport, social security, employment policy and state subsidies. In effect, these serve as the ideological heart, as well as the barometer of changes in the fundamental Party line and its effectuation. The essay starts with a consideration of the Linemamientos provisions of Política Social as they relate to education, health, sport and culture. It will consider these Guidelines in light of those initially proposed and explore the extent of the changes within the framework of the Lineamientoset as a whole. The second part of the essay examines what these changes suggest in terms of the place and character of education, sport and culture within evolving Cuban state policy and suggest what the changes may mean for the future course of the development of Cuban State-Party system. First, the Lineamientos themselves were developed in response to the recognition that the current economic model was both tied to the economic development needs of the State (as represented in the economic provisions of the Lineamientos themselves) and, like the current economic model, unsustainable in its present form. Second, Second, it is not clear how effective the State will be in bending education to the needs of Cuban industry. Third, it suggests that the earlier expenditure on brick and mortar projects — large school buildings and other substantial infrastructure, now has become something of a drag on the ability of the state to deliver education efficiently. Fourth, Cuba is now wrestling with the consequences of globalization and the technological revolution that made globalization possible. Fifth, the public focus on family involvement as a critical component of education, and education reform, cannot be exaggerated. Sixth, the Lineamientos reaffirms and continues the long tradition of centralized control of education and the importance of the political education of Cuban citizens in socialism. And lastly, the emphasis on the connection between education, culture, and sport and revenue generation can have a potentially significant effect on the delivery of these services to the population. More generally I will suggest that the education, sport and culture Lineamientos parallel similar issues facing developed states, including the United States.

10.2139/ssrn.1881598

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The algorithmic law of business and human rights: constructing private transnational law of ratings, social credit and accountability measures

International Journal of Law in Context (2022)

Larry Catá Backer Matthew B. McQuilla

Abstract This paper examines the rise of algorithmic systems – that is, systems of data-driven governance (and social-credit-type) systems – in the form of ratings systems of business respecting human rights responsibilities. The specific context is rating or algorithmic systems emerging around national efforts to combat human trafficking through so-called Modern Slavery and Supply Chain Due Diligence legal. Section 2 provides a brief contextualisation of the problems and challenges of managing compliance with emerging law and norms against forced labour and, in its most extreme forms, modern slavery. Section 3 examines the landscape of such algorithmic private legal systems as it has developed to date in the context of forced labour ratings systems. There is a focus on the connection between the power to impose the normative basis of data analytics and the increasingly tightly woven-in connection between principal actors in this endeavour.

Due diligence

10.1017/s1744552322000453

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