Sunday, December 31, 2006

Taxing and Spending for Religion: Of Virginia Prisoners and Kosher Diets

A federal appellate court in Virginia recently ruled that a state prisoner was denied his rights under federal law when the state refused his request for a kosher diet. Religious Land Use Law is Upheld, Richmond Times-Dispatch, Dec. 30, 2006. "Ira Madison, a Hebrew Israelite and a member of the Church of God and Saints of Christ in Suffolk, sued the state and various Department of Corrections officials in U.S. District Court in Roanoke in 2001, saying his requests for kosher meals while an inmate at the Buckingham Correctional Center were being denied. Madison argued that the state violated the federal Religious Land Use and Institutionalized Persons Act." Id.

The ruling is unremarkable except to suggest that the Taxing and Spending Power, recently thought ripe for narrowing under our new Supreme Court regime, appears to be alive and well, at least where religion is involved. As a consequence, the conservatism that brought the United States a new sensitivity to religion in state action also promises to continue to march down the path to the certain obliteration of states as a semi sovereign viable level of government in the United States and takes us one step closer to the end of the federalism experiment started by the Founders of the Republic.

Washington and Bolívar, Windows on Differences in Political Culture in the 19th Century

In a remarkable essay, the 19th century Colombian (correction Ecuadorian) author Juan Montalvo drew on the symbolic character of the germinal leaders of their respective nations--George Washington and Simon Bolivar, to sketch the fundamental distinctions between North and South American political culture. (Juan Montalvo, Los héroes de la emancipación de la raza hispanoamericana, in Siete Tratados (Paris, 1883) reproduced in Conciencia intelectual de América: antología del ensayo hispanoamericano 132-134 (Carlos Ripoll, ed., New York: Eliseo Torres, 1966). The essay is particularly relevant today as a basis for understanding the difficulty that North and South American political cultures have in harmonizing approaches to law and legal culture.

Saturday, December 30, 2006

The Execution of Saddam Hussein and the Road to Global 'Higher' Common Law

Today, Saddam Hussein, former leader of Iraq, statesman, leader of the Iraqi Baath party, brutal dictator and the man who, in the name of the state and for the retention of his own power and that of his followers, ordered the death of many people, and caused the death of many others, was executed after trial by a court constituted for that purpose by his successors, the judges of which were installed with the approval and guidance of the military occupation authorities of Iraq and trained in the techniques of judging by representatives of Western judicial elites in London.

Friday, December 15, 2006

China and Neo-Colonialism in Africa: A Warning from South Africa

I recently wrote about accusations of Chinese neo-colonialism in Africa, and Chinese sensitivities to these accusations. Larry Catá Backer, “The Problems of Being a great Power: China and Neo-Colonialism in Africa, Law at the End of the Day, Nov. 22, 2006. A recent story published by the BBC emphasizes African sensitivities to what may be seen, through African eyes, as Chinese neo-colonialism in Africa. “Mbecki Warns on China-Africa Ties, BBC News, Dec. 14, 2006. It also suggests that despite its unique historical relationship with Africa, China may not be able to avoid being painted as just another great power exploiter on the African continent—at least to the extent that such a portrayal works to the benefit of African elites.

The Party and the Prostitutes

In 1957, on the eve of the Cultural Revolution, Deng Xiaoping famously reminded the Chinese Communist Party ("CCP") that, as the party in power, it must be willing to accept supervision. Deng Xiaoping, The Communist Party Must Accept Supervision, in I SELECTED WORKS OF DENG XIAOPING, 1938-1965 (People’s Daily On-Line ed.) . For Deng, the issue was how to best appease the masses and avoid the problem of “big democracy.” Deng did not expect perfection, just a pragmatic balancing of the realities of human nature and the needs of a satisfactorily running state. Particularly, in connection with its relations with the masses, the CCP should expect that “occasional disturbances are unavoidable. This still is no cause for alarm; in such situations we should just stay calm and try to face the masses, rely on them and explain things to them painstakingly. Then, disturbances will subside.” Id.

A report from China on December 9, 2006 and reported in the foreign press (Edward Cody, Public Shaming of Prostitutes Misfires in China, The Washington Post, Dec. 9, 2006 at A-10) provides a glimpse into the way that the Chinese Communist Party may be open supervision, and thus supervised, to the institution of a rudimentary rule of law culture at the core level of social organization. The story relates a curious incident in Shenzhen. It seems that local officials were faced with a dilemma. Provincial girls were flocking to the city, many of them then reduced to prostitution to service a growing population of factory workers. Because of its proximity to Hong Kong, the prostitution trade was particularly lucrative, since Hong Kong residents found the Shenzhen prostitutes an acceptably cheap substitute for their delights of Hong Kong.

This presented the authorities with a problem: how to control vice in this rapidly growing area. The authorities chose an age/old method, common, in its own way, in the United States as well as in China, apparently. The authorities chose to humiliate the prostitutes and their clients. In the United States, the authorities or others sometimes publish the names of people arrested on vice charges in the local newspapers. In Shenzhen, the authorities, in the form of the Futian Public Security Bureau, chose to parade “about 100 women and their alleged johns in the street, using loudspeakers to read out their names and the misdeeds they were accused of committing. News photographers snapped away while thousands of residents lined up to take in the show.” Cody, supra.

But this time, the popular reaction to this attempt at vice control was unexpected. Rather than react against the spread of vice in the area, local groups quickly denounced the local authorities for the violation of the privacy rights of the victims of the parade. A local lawyer wrote to the National People’s Congress to protest what he considered to be the unlawfulness of the Futian Public Security Bureau action (illegal under current law and likely to have a baneful influence on the people and China’s reputation abroad). Id. In particular, the lawyer suggested that the humiliation violated the legal process rights of people accused but not yet convicted and that the humiliation itself was uncivilized (and thus, slyly implied that it ran contrary to the thrust of the great ideological campaigns of the Chinese Communist Party—from Sange Daibiao to ba rong ba chi).

In addition, the All China Women’s Federation complained that the parade constituted an insult to all Chinese women. Id. Again, slyly suggesting the dissonance between the action and the ideological basis of Chinese political society, the federation noted that such parades damage “the development of human civilization [and] has no place in a modern society.” Id. Others suggested that the tactic was uncomfortably close to the tactics used during the worst days of the Cultural Revolution and that the parade exceeded the penalties currently on the books for prostitution (administrative detention). Id.

But Xu Desen, the Futian District Communist Party secretary, “endorsed the parade as a good way to discourage prostitution. Speaking to local reporters, he praised police for the crackdown and said it would continue.” Id. Not that what he suggested is aberrational by U.S. standards. Indeed, similar tactics have been used in the United States and praised by American police officials. “For instance, St. Petersburg achieved a first when it premiered "John TV," a cable television program that broadcast the names of johns and prostitutes. The program caused a furor and generated widespread publicity on radio, television and newspapers. But it also brought accolades and public support. NBC Nightly News featured St. Petersburg on its "American Closeup" segment highlighting communities that are trying new ways to halt prostitution. The British Broadcasting Corporation dispatched a television crew from New York to "see how the Americans do it," officials said.” Ronald J. Getz, High-Profile Program Successfully Drives Prostitutes Out of Town (Long Version) Community Policing Exchange, Nov/Dec 1996. They have been criticized in the United States as well. See Marty Levine, Three Year Protest Against Publishing Names of Arrestees Continues: Publishing lists of arrestees may do more harm than good for the hood, protesters say, Pittsburgh City Paper, Nov. 9, 2006.

Edward Cody, who wrote the article, drew as a moral of this episode, the idea that China has come a long way and, quoting Kang Xiaoguang, a sociologist with the Rural Development Institute at the People’s University of China, that “the public has a stronger sense of human rights and privacy protection.” Id.

I would draw a related moral from this story. The Chinese masses have been listening to their political elites. They have been absorbing the substantive meaning of the ideological campaigns that have pointed almost uniformly in a single direction since the leadership of Deng Xioaping in the late 1970s. The masses have absorbed the important message of rule of law, at least in its raw state. The masses grow less tolerant of activity that tends to ignore rule of law as applied. While the masses may not interpret the application of rule of law accurately all the time, or well, the common people are developing a sense of actions that suggest arbitrary activity. They demand a justification in law for action that does not appear to be in conformity with it. Even the Party is subject to its won rules. Rules that do not work ought to be abandoned through a formal process rather than ignored at the whim of local officials. The Party has accepted the supervision of laws of its own making. It must now, as Deng Xiaoping suggested a long time ago, also accept the supervision of those whose welfare is their primary concern. If the Party wishes to avoid the dangers of big democracy, if the Party seeks to remain the party in power, it would do well to follow Deng’s advice and accept the supervision of its own laws and the insights of its own people.

Without lesser democracy there would have to be greater democracy, because the masses need to find outlets for their anger. Our idea is to provide places for the masses to vent their anger, places for them to speak their mind and places to make appeals. The suggestions of the masses fall into the following categories: Some are reasonable and should be accepted and put into practice; it would be wrong to ignore them, which would be bureaucratic. Others may be basically reasonable, in which case the reasonable part should be put into effect and explanations offered concerning the part that cannot be put into effect. Still others may be totally unreasonable, in which case we should explain to the masses why. In brief, the masses should have plenty of opportunity to air their views, offer suggestions and give vent to their anger -- at people's congresses, political consultative conferences, workers' congresses, students' congresses, and so forth. Greater democracy can be avoided if there is lesser democracy. Nobody would demand greater democracy and no workers or students would go on strike once the masses have vented their anger and every effort has been made to solve their problems. Deng, 1957, supra.

The officials in the Futian District ought to have a lot of explaining to do, to the Party, to the State, and to the masses, all of which he serves through law bounded by the substantive ideology of the people expressed through its party in power.

Sunday, December 10, 2006

Some Thoughts on the Role of a Minority Groups Section in the American Legal Academy

The Minority Groups Section remains one of the most vital sections in the Association of American Law Schools. Its institutional presence serves as a constant reminder of the progress that traditionally disadvantaged groups have made within the legal academy in the United States, as well as the progress that remains to be made. But that task, and those accomplishments provide a deeper insight we might do well to consider more fully. Like many of us in our other relationships with the community at large, the Section stands both apart from and comfortably, perhaps too comfortably, within the community of academics in the United States the AALS seeks to serve. And that brings me to the point of this short essay on the role of a community of faculty connected by ties of status in an organization otherwise largely divided by interest in one or another field of law: the Section must, in its programs and actions, remember that while it is a part of this great organization, it ought to always stand apart from it as well.

One of the great tasks of this Section has been to naturalize the contributions of its members to the academy. That remains a difficult task, requiring some of our colleagues, and the institutions in whose governance they participate, to abandon systems of judging that supposed many of our members to be invisible or required them to mimic some imposed model of academic perfection, a model our members had little hand in creating, for a chance at continuing appointment. For everything from challenging assumptions of what constituted scholarship worthy of the name, to who might produce these works (and in what forms), to issues of educating students to overcome their own personal and cultural prejudices, this Section has lent its hand whenever it could. Its greatest activity may be to provide refuge. This Section opens its institutional home to the marginalized, to those who have been demonized, to those who might be cast away. This Section also serves to amplify the many voices that together make up a mellifluously dissonant chorus that can only better serve to move us closer to the ideals that help shape our political society. But perhaps the greater task for this Section has been to develop behaviors that demonstrate that, at least at an institutional level, individuals can participate in as equals within an environment respectful of difference but united within a community of shared values. Not political or economic values, to be sure (that would be dreadful indeed), but of ethical values springing most assuredly from a heightened understanding of human dignity in all of its complexities and contingencies.

The role of the stewards of this Section ought to be to help the Section and its members to more effectively stand as part and apart from its colleagues within the majority organization. Stewards ought to serve as a voice for the collective will of this Section and its members, to undertake those tasks that further embed each member as individuals within the fabric of academic life on terms of equality, mutual respect and dignity. One of the great tasks of a Minority Groups Section is to spread word of the great work of the members of this Section.

Many of the Section’s members have already achieved well-deserved national and international prominence. The Section has an obligation to ensure that other voices within the Section are also provided with greater opportunities to let the world know what they are doing and what they are thinking. The Section’s members are at their best when they seek to serve each other. The Section works its greatest good when it looks for easier ways to share its members’ accumulated knowledge of teaching and the techniques of service and the production of knowledge.

On Hiring Law Faculty and Law School Hierarchies

I was thinking about the dynamics of hiring candidates for law faculties recently. Decisions with respect to hiring are complex matters. Each decision may be based to some substantial degree on the general qualifications of the candidate. But that is merely the start of the analysis. Other considerations are also important—and many of them call for judgment. This judgment is not simply subjective, as we might tend to understand the term; it does not refer to the usual sort of judgment faculty sometimes indulge in from time to time—fear of competition, protection of turf, fear of racial/ethnic/gender ‘tipping,’ or strong feelings against a particular field of inquiry (for example against critical race or law and economics work).

Yet, the judgment I speak of is not of a simple objective sort. Rather, our judgment is meant to be highly contextual—relating in large measure to who a faculty is and what a faculty has stated it wants to be. It ought not be center on whom the candidates are and what the faculty ought to expect from them at a minimum. The one thing faculties ought not do when considering a candidate is to decide on a hire on the basis of some causally falsely objective criteria—for example, all things being equal, would the person possibly succeed as a law professor somewhere. At bottom, a faculty, as a collegial body, must rely on the good faith judgments of its members (judgments that might be wrong in retrospect), but judgments made on the basis of appropriate factors fairly considered and consistently applied.

But context is a funny thing. Faculties sometimes say things they do not mean. Faculties mean things they do not say. Sometimes, and actually far more often than we care to admit, faculties speak out of several sides of their mouths. Faculties sometimes start a hiring process from the most theoretically and contextually pure of motives and out of desperation or changes of heart end a process through clumsy exercises in ‘realpolitik’ or making do. And sometimes, more often than we care to admit, candidates’ fortunes rise ort fall with the collection of alternative invitations they obtain (and are wise enogh to communicate).

Many faculty, for example, are quick to declare that they have embarked on one or another great project of moving their institution into the top ranks of the legal academy. Sometimes, this great project is officially endorsed on web sites or a law school’s various marketing vehicles. Often, however, these expressions are meant for purposes other than that for which they are expressed. As a consequence, the hiring process devolves into a process of carefully preserving the forms but not the substance of such mandates. It is difficult for faculties to avoid lip service mandates.

Suppose, however, that a faculty meant what it said about a commitment to moving their institution into the top ranks of the legal academy, as such movements are conventionally measured. For this exercise let us assume away the usual caveats of such endeavors—that such movements cannot be measured with any assurance; that such movement is inherently subjective, involving as much aggregate reputation as achievement of any measurable objectives; that measurements in any case, are always geared to confirm the position of certain institutions at the top of the reputation pecking order (a carefully designed reverse engineered system of objective measures, which take as their ideal the characteristics of institutions that must be ranked at the top of the scale can produce such results consistently over the years); that such measures are shooting at a moving target, etc. In those circumstances, what is the basis for making conventional judgments about the suitability of a candidate for a position at a law school with such an ambition (that is the ambition to move into the top ranks of the academic rankings)?

I would posit that approaches to legal research have now developed into at least three clear levels or approaches. I suspect that a faculty’s emphasis on a particular level of analysis, at an aggregate level, may have an impact on the reputation of that faculty as a whole. I would further posit, that in the current state of American law schools, such a candidate might have to demonstrate performance at what I might call a third level of analysis in her research and approaches to the study of law. I make no judgment about the value of suitability of these levels or approaches to law and legal study. Indeed, there may be a good case made for inverting the reputation order of scholarship. But I am calling it as I see it. Where it goes requires aggregate behavior and preferences changes beyond my abilities to influence to any substantial degree.

Performance of even entry level candidates at a level suitable to the top ranks of the legal academy (judged on a global, rather than on a parochial, basis) requires more than a mere facility with law at what I consider a first level of analysis. First level analysis consists of the identification of an interesting legal problem arising from deficiencies in statutes or case law or as a result of changes in patterns of behavior or technology, examine the character of the problem and propose an approach to its solution through changes (usually legislative) in behavior. This is the sort of reasoning one tends to see very often, but is also the type of effort that tends to be weeded out in many of the top global peer reviewed journals. But, of course, not always. It is the sort of approaches to the study of the law critical to the functioning of bench and bar on an everyday level; the sort of scholarship that was once highly prized at all levels. Applying social class analysis by analogy, one might look on this as the sort of working class level of law studies; it is essential for the functioning of the social order, but the sort of class from which conventionally ambitious parents might want their children to escape.

Nor are performance expectations at the highest levels satisfied, in my judgment, with the less common second level of analysis. Second level analysis consists ordinarily of an identification of a general policy framework within which an interesting legal issue might arise, and an engagement of policy or broader analysis, sometimes at least recently, accompanies by a rudimentary comparative analysis of some sort (for example, it was common to engage in simple legal/cultural analysis in transnational legal issues affecting East Asia, especially in the 1990s). From my perspective, this is the sort of analysis one tends to see more commonly in the so-called “better student edited journals” (but not always). This is today’s “meat and potatoes” scholarship. It invariably tends to provide the foundation of good regional programs, for example those developed at many state or state supported institutions (whose excess reputation might then be attributable to other factors—in state tuition differentials, proximity of better reputed competitor institutions, perceptions of the “market” etc.). Applying social class analysis by analogy, this second level tends to consist of the middle class, the good burghers, the great guardians of the institution and institutional norms. This is the comfortable sponge of the profession, absorbing the products from other classes but trying to remain true to its good old fashioned values.

Critical for sustained performance at the level conventionally expected at the top of the institutionalized profession is a clear and not incidental evidence of a facility with what I term third level analysis. Third level analysis consists of strong evidence of broader theoretical implications of analysis, an understanding of the principles or foundations within which the problem is grounded, possibilities for interrogating that grounding, and an engagement with those broader and deeper themes, both in connection with the specific issue examined and its spillover effects. This is the sort of “deep command of the problem” work that provides broad perspective, deep insight, and application to specific issues (again, though not always). It suggests knowledge of the connection between the specific and the general, the surface and the foundation, in a thoughtful way. Clearly, entry-level candidates will not have fully developed this facility. On the other hand, personal experience suggests that this facility exists in entry-level candidates—and even entry-level candidates without an advanced degree (other than a J.D.). This is the upper class of the profession—sometimes eccentric, and financially independent enough to do what it wants without much of a regard for anything else, other than the requisites of its own leadership. The up side is the ability to pull the profession, and the study of law in whole new directions, the down side is the arrogance and control of authoritative investigation that can sometimes suffocate other endeavors that tend to threaten its position. But I guess one takes the good with the bad as long as one is willing to continue to subsidize the current academic social order. And double standards, anti-democratic tendencies, and failures to live up to the promise of institutional status always dog this group.

So, it appears to me, scholarship does matter, and the form of scholarship matters most. For all that the academy speaks the language of inclusion, democracy, judgments purely on ‘merits’ and the like, it acts, like every other institution, to solidify hierarchy and a complicated system of status sorters. It seems that the sort of scholarship one engages in is, like salaries and other evidences of status, continue to contribute to the maintenance of a proper order in our institution. In institutions like these, every actor knows its place, and the systems for maintaining the appropriate hierarchical order have been developed to preserve that order. It is not that institutions cannot be upwardly (or downwardly), it is just that such movement is not as easy as it might seem. The institutional ordering of the academy makes such movements more rather than less difficult. But in this the academy is little different from other institutions. In this context, it may be wise to be suspicious of articulations of aspirations to “move to the highest ranks” of the academy; and it helps explain why it lip service may be the most efficient means of living within one’s assigned level in the academic hierarchy.

Friday, December 01, 2006

"Las ideas no se matan!"

I was asked recently about a quote I reference in the "About Me" section of my web site. Someone wanted to know what the quote meant and why I referenced it. This is understandable, the person quoted is Fidel Castro Ruz, the current leader of Cuba and great ideological foe of the United States. The quote is from a speech delivered by Fidel Castro in 1999 to a group of students in Caracas Venezuela, a very long speech, touching on issues of core ideological difference with the free market West. Fidel Castro Ruz, “Una Revolución solo puede ser hija de la cultura y law ideas,” Discurso pronunciado por el Presidente del Consejo de Estado de la República de Cuba, Fidel Castro Ruz, en el Aula Magna de la Universidad Central de Venezuela, el 3 de febrero de 1999.

Near the end of the speech, Castro reminisced about a now famous episode the occured a moment that provided him with a great insight, a moment in which in the mountains of Cuba, he faced the certainty of death, which he reduced to its essence--"las ideas no se matan."

Ahora, podemos decir, como me dijo un teniente que me hizo prisionero en un bosque, al amanecer, en las inmediaciones de Santiago de Cuba, varios días después del asalto a la fortaleza del Moncada. Habíamos cometido el error —siempre hay un error—, cansados de tener que reposar sobre piedras y raíces, de dormir en un pequeño varaentierra cubierto de hojas de palma que estaba por allí, y nos despertaron con los fusiles sobre el pecho, un teniente casualmente negro, por suerte, y unos soldados que tenían las arterias hinchadas, sedientos de sangre, y sin saber ni quiénes éramos. No habíamos sido identificados. En el primer momento no nos identificaron, nos preguntaron los nombres, yo di uno cualquiera: ¡prudencia, eh! (Risas), astucia, ¿no? (Aplausos), quizás intuición, instinto. . . . .

Pero aquel teniente, ¡qué cosa increíble! —esto nunca lo había contado en detalle públicamente—, está calmando a los soldados, y ya casi no podía. En el momento en que buscando por los alrededores encuentran las armas de los demás compañeros, se pusieron superfuriosos. Nos tenían amarrados y apuntándonos con los fusiles cargados; pero no, aquel teniente se movía de un lado a otro, calmándolos y repitiendo en voz baja: "Las ideas no se matan, las ideas no se matan." ¿Qué le dio a aquel hombre por decir aquello?

. . . . .

Como dijo aquel Teniente, las ideas no se matan (Aplausos), nuestras ideas no murieron, nadie pudo matarlas; y las ideas que sembramos y desarrollamos a lo largo de esos treinta y tantos años, hasta 1991, más o menos, cuando se inicia el período especial, fueron las que nos dieron la fuerza para resistir. Sin esos años que dispusimos para educar, sembrar ideas, conciencia, sentimientos de profunda solidaridad en el seno del pueblo y un generoso espíritu internacionalista, nuestro pueblo no habría tenido fuerzas para resistir. Id.
Here is a basic English translation of this passage provided by the Cuban government::

Now we can say the same thing a lieutenant said who took me prisoner in a forest near Santiago de Cuba in the early hours of dawn several days after the attack against the Moncada army garrison. We had made a mistake, there is always a mistake. We were tired of sleeping on the ground, over roots and stones, so we fell asleep in a makeshift hut covered with palm fronds. Then, we woke up with rifles pointed against our chests. It was a lieutenant, a black man, with a group of unmistakably bloodthirsty soldiers who did not know who we were. We had not been identified. At first, they did not identify us. They asked us our names. I gave a false name. Prudence, huh? (LAUGHTER) Shrewdness? (APPLAUSE) Perhaps it was intuition or maybe instinct. . . . . .

But that lieutenant, what an incredible thing! I have never told this story in detail publicly. This lieutenant was trying to calm down the soldiers but he could hardly stop them anymore. When they found the other comrades’ weapons while searching the surroundings, they were infuriated. They had us tied up with their loaded rifles pointing at us. But the lieutenant moved around calming them down and repeating in a low voice: "You cannot kill ideas, you cannot kill ideas". What made this man say that?

. . . . .

As that lieutenant said, ideas cannot be killed. (APPLAUSE) Our ideas did not die, no one could kill them. And the ideas we sowed and developed during those thirty odd years until 1991 more or less, when the special period began, were what gave us the strength to resist. Without those years we had to educate, sow ideas, build awareness, instill feelings of solidarity and a generous internationalist spirit, our people would not have had the strength to resist. Id.

The perhaps necessarily breezy translation provided by the Cuban state apparatus hides a bit of subtlety of meaning. Castro hints at some of the subtlety in that portion of the speech quoted above. But the phrase itself is worth a bit of deeper exploration. The quote, "las ideas no se matan" means "literally"-- ideas can't be killed-but it also carries some overtones-it can be a form of indirect command (don't kill ideas)-or it serves as a reference to the basic set of normative and universal truths which are beyond human power to alter, or to the actual person who holds these ideas and seeks to spread them. This last insight was the focus of the use of the phrase in the context of the "founding story" of his capture by the forces of Batista, the then current dictator of Cuba, and the ciritcal intervention by the officer. The argument that saved Castro's life, then becomes the founding myth of the Cuban revolution, conflating Castro as a person, Castro as the proxy for the ideas and system he was fighting for in Cuba, and ultimately for ideas in general.

Castro's use of the event, and the quote, "las ideas no se matan," is narrowly pointed --to the defense of the founding ideology of the Cuban Revolution against that of the United States and its global ideology. But there is irony here as well. Freed of its peculiarly Cuban context, the insight cuts in all sorts of directions. The larger truths embedded in this quote serve to complicate the simple elegance of its exposition by any advocate of a system of ideas. Ideas do not disappear. Ideas cannot be defeated. Ideas do not cease to exist. Ideas, principles, norms, values, appear and reappear. Ideas cannot be defeated. They cannot be erased. No level of human consensus can eradictae, trasnform or suppress ideas for any appreciable length of time. To seek a complete and eternal victory of one idea over others is to engage in a fool’s game. Or perhaps, is the stuff of Messianism--the forward thinking of hope for the advaocates of particular idea systems. More irony--the early Christians understood this well as they embraced the cultural values of the peoples Christian missionaries sought to convert. Elements of modern Hinduism attempt a similar feat—attempting to embed Buddhism and Sikhism within their own systems. Modern American Religion Clause jurisprudence is remarkable for its ability to produce wave after wave of older ideas, repackaged and recalculated, sometimes long after it appeared to have been utterly rejected. While it is possible to manage the power of ideas to control larger segments of human societys, it appears to be virtually impossible to suppress or extinguish the expression of the idea itself.

This is not to suggest that there is no truth, or that all values are relative or the usual related nonsense spewed by those who are comfortable in the false belief that their knowledge is sufficient to definitively judge ideas. Logos may well be perfection, but no one of us is Logos. Nor does it appear that Logos is a picky as some of us are with respect to its content. Ideas cannot be killed, and especially, it seems, thos eideas that stand to remind us that we may embrace only partial and imcomplete knowledge. Perhaps this is a way of understanding the rewification of ideas, Logos, as divine, as beyond the human ability to produce or control. Ultimately, it suggests that humility is the gateway to knowledge, and knowledge to the understanding of the nature of ideas that may not be killed. Humility in this context requires us to remember that even the best of us possess only a partial and subjective knowledge, truth. Ideas cannot be killed because we continue to strive for a perfection of knowledge, a perfection that will elude us for some time yet.

On Terminating Academic Programs in Law Schools

The issue of the creation, administration and termination of substantive academic programs in law schools is complex. It may involve issues of policy, firection, resources, and mission. As these change, substantive programs sometimes change as well. At times, those changes require terminating otherwise useful programs that no longer serve the Law School. It In the context of faculty governance, it is always a good exercise for faculties to take stock of a Law School's programs from time to time. But sometimes, there is a temptation to substitute process for substantive concerns in considering whether an academic program ought to be terminated. It is to that issue that I devote this sort essay.

When programs termination is sought for process reasons, it is sometimes an indication that an administrator has determined that a program ought to go, but is concerned about discussion on the merits. This concern may arise from any number of factors: fear of an adverse faculty determination, a wish to minimize faculty consideration of the issue for fear that a wider discusison migth ensue, one whose timing is sought to be controlled in other quarters, a need to find ways to control individual faculty from time to time, or a reassessment of the administrative distribution of burdens come to mind. There are other reasons no doubt.

Process based arguments for program termination usually fall into two categories:

1. The programs mislead students;
2. The programs can be abused by students.

The arguments are related. Both suggest a strategic behavior approach to program analysis. One starts from a presumption that students are incapable of understanding the nature and character of the program as a result of which they misapprehend (and perhaps misapprehend to third parties) the character of nature of the program they have (successfully) undertaken.

The other starts from the opposite presumption, that students are not only quite capable of understanding the nature and character of the program, but understand both well enough to use the substance or procedures available through the program to effect strategic behavior having little to do with a desire to attain the substantive benefits made available through the program.

While inconsistent, it might even be possible for a student to know both too much and too little. My guess is that the apocryphal student is one who mistakenly believes that the program (for example a Certificate Program in International, Comparative and Foreign Law, or a Certificate in Critical Race Studies) has a greater substantive effect than it has in reality (perhaps even equating it with the substantive benefits of an advanced law degree) and (so the argument might go) would not have undertaken the course of study had she only known the reality of the limits of the ‘benefits’ of the certificate. As a consequence, this student (or even better one who is induced to register for the certificate (let's say) for purely strategic purposes) uses such registration to move up the queue for limited enrollment registration for which program participating students receive a preference (thus denying ‘more deserving’ students a coveted slot).

I suggest here that the arguments, should they be made, have no merit for the purpose for which they are deployed (termination of the programs) even if they might have merit from a more appropriately limited administrative perspective (minimize misapprehension and avoid abuse). Let me explain:

Assuming that there is a problem relating to information, it seems to me that the solution is not to eliminate the program with respect to which a descriptive ambiguity or misapprehension exists, but to cure the ambiguity or misapprehension. Thus, the answer to the first argument is this: provide more and better information. To choice any other alternative suggests a very bad precedent—that any program with respect to which ambiguity might be present is subject to a risk of termination on that score. Surely, if that is the case, there is hardly a program that is currently run that might not be fodder for elimination on that basis alone. I can’t imagine that is the sort of argument that might be raised in good faith. Having said this, substituing one program for another to comport program quality to expectations is not unreasonable. But that is a substantive argument rarther than one in which the only response to an information disjunction is: terminate the program!

Assuming there is a problem of abuse, the solution is similar: manage the abuse better. Virtually every program administered through a typical Law School is subject to abuse. I don’t think that, on that basis alone, we would consider eliminating the Law School’s programs (though that would certainly and definitively end the possibility of abuse). Abuse, standing alone, provides little basis for considering eliminating an otherwise substantively positive value program. Thus, the mere existence of abuse ought not to produce a strong presumption of terminability.

Moreover, the criticism of abuse really masks two questions (1) does the conduct complained of actually constitute abuse? and (2) are there methods to manage or eliminate the conditions leading to an excessively high level of abuse? With respect to the first, I am not sure that the use of a course preference option ought necessarily to constitute abuse. I believe that in the minds of some, it might constitute abuse only when coupled with bad intent. But, who can look with any confidence into the hearts of students. Students say lots of things we discount; students purport to provide rationales for doing things that we discount. To raise this possibility (in some students—I would be suspicious of any argument suggesting a 100% ‘bad motive’ rate) simply means that the administrator is uncomfortable with the preference system in general or as applied to the certificate programs. Well, if that is the case, then the focus of the discussion ought to be on the preference rather than on the termination of the program as a whole. More generally, it is not clear that abuse can be defined as any use of strategic thinking in designing a course of study, when the basis of a Law School education includes rigorous training in the utilization of strategic decision making for clients in every conceivable legal context. And I am unconvinced that strategic thinking in deciding to participate in a substantive program can ever rise to the level of unethical conduct.

That brings me to the heart of the issue—an issue of management. Do our administrators have the tools they need to manage any abuse that they believe, reasonably and appropriately, to exist? The answer, I believe is that they already possess the tools they need to adequately manage this ‘problem.’ A combination of mandatory student counseling and oversight at the early stages of program completion would provide significant control. Counseling all students about the evils of strategic thinking in course or program selection by the administrators who feel strongly about this (I don’t) may be a way to alert students to the culture of course and program selection that we appear to be moving toward (though this also might be a subject well suited to faculty discussion and approval).

What are left with? From my perspective very little that cannot be cured by appropriate and traditionally available techniques of program management. And that brings us back to where every faculty ought to begin--to a discusison of the substantive value of a program.

Saturday, November 25, 2006

On the Cusp of Great Changes: American Religion Clause Jurisprudence in the First Decade of the 21st Century

The interpretative bases of the Religion Clauses, never very stable to begin with, seems to have up ended over the course of the last half-decade. I might venture to say that (with a few notable exceptions), except perhaps for their holdings, and the general principles the underlie them, cases decided much before 2000 will be of increasingly little value in helping understand what the Supreme Court is doing when it is confronted by a Free Exercise of Establishment Clause Case. The three prong Lemon test (Lemon v. Kurtzman, 403 U.S. 602 (1971))—secular purpose, secular effects and no substantial entanglement, has been substantially modified into a very different standard or superceded. This makes sense as the court shifts away from a jurisprudence (like Lemon) deliberately designed to make it difficult for the state to accommodate religion (a point made by Justice Harlan in Sherbert (Sherbert v. Verner, 374 U.S. 398 (1963))) to one in which accommodation is easier to justify. It is the limits and contours that that more liberal justification that continues to embroil the court in jurisprudential battles.

What follows is a brief suggestion of the way the Supreme Court is rewriting the analytical bases for approaching interpretive issues touching on the Religion Clauses. But understand that, as in previous interpretive eras, the Supreme Court remains deeply divided. At least two principle foundations of Religion Clause jurisprudence continue to dominate the Court. Their advocates are among the ablest jurists of the last several generations.

One, led ever more aggressively by Justice Scalia, is grounded in appeals to tradition—not jurisprudential tradition, but the cultural understandings and practices of the people in the United States around the time of the adoption of the Bill of Rights. This has led Justice Scalia to adopt an aggressively anti-separationist position. Justice Scalia starts from the position that the Religion Clauses were not meant to force a separation of state from Religion, something that would have been at odds with the lived reality of the Republic at its founding. Neutrality is defined from the perspective of the benefits or grants offered by the state. Where the government offers any benefit or privilege, it must make it available to religion on an equal basis. Indeed, the Religion Clauses compel the privileging of religion as against irreligion and may permit the state to accommodate the beliefs of the majority religion over that of all others (as long as there is no formal establishment). For minority religions, there is the solace of an individually applied Free Exercise Clause. However, where majority religious morals or ethics results in enactment of a statute that is otherwise generally applicable and not purposely intended to target a religion, then even the protections of the Free Exercise Clause would not be available. States are otherwise free to accommodate religion, either through direct funding or through the support of religious activities of citizens (Mitchell v. Helms, 530 U.S. 793 (2000) (“So long as the governmental aid is not itself ‘unsuitable for use in the public school because of religious content,’ . . . and eligibility for aid is determined in a constitutionally permissible manner, any use of that aid to indoctrinate cannot be attributed to the government and is thus not of constitutional concern.”)). For Scalia, the way to avoid the problem of the establishment of any one religion is to permit the establishment of them all (or at least of most of them). In effect, Scalia would like to see a return to Reynolds v. United States, 98 U.S. 145 (1878) (“Congress was deprived of all legislative power over mere opinion but was left free to reach actions which were in violation of social duties or subversive of good order”) and especially Davis v. Beason, 133 U.S. 333 (1890) (“It was never intended or supposed that the amendment could be invoked as a protection against legislation for the punishment of acts inimical to the peace, good order and morals of society. . . . Probably never before in this history of this country has t been seriously contended that the whole punitive power of government for acts, recognized by the general consent of the Christian world in modern times as proper matters for prohibitory legislation, must be suspended”). Justice Scalia would apply these ideas as a general principle in both Free Exercise and Establishment Clause jurisprudence, but in a more modern, neutrality and “original understand” guise, and without the underlying anti-Catholic and anti-Mormon element.

In its more benign form, expounded in the opinions of Chief Justice Rehnquist in his final year, there is also an emphasis on neutrality and a willingness to carve a wider ambit for governmental accommodation of religion. But there is also a definitive reluctance to abandon a formal adherence to some measure of separation between organized religion and the state. Thus, for example, Rehnquist is happy enough to find no constitutional infirmity in the provision of governmental vouchers to students to be used to pay the tuition of private religious schools, but only where it is clear that the choice is made by individuals (and not the state) and where it is also clear that (at least as a formal matter) the individual was offered a true and free choice among religious and secular options (Zelman v. Simmons-Harris, 536 U.S. 639 (2002)). This wing is less convinced that the Religion Clauses compel a privileging of religion over irreligion (or secular interests) and find important the keeping of formal separation, based on a sense that the forms of Establishment of importance to the founding generation, rather than official acts of formal establishment, ought to guide the courts in the setting of the limits of accommodation. As a consequence, Rehnquist was happy to permit a school voucher system but was unwilling to require the state to provide aid to be trained in theology (Locke v. Davie). At the same time, this group is much more willing to defer to the state, both in matters of generally applicable laws that appear formally neutral with respect to religion (Smith), and state rules that accommodate religion as long as formal neutrality is observed and direct endorsement is avoided (Lynch v. Donnelly).

The other, led ever more openly by Justice Souter (with Justice Stevens not far in the background) harkens back to the more traditional jurisprudence of the post WWII period, a jurisprudence substantially rejected by the new conservatives. The core of that jurisprudence is both separation (Everson v. Bd. of Education, 330 U.S. 1 (1947)) and neutrality between religion and irreligion. It views tradition (especially in the form of original understanding as much less useful than Scalia, finding altogether too many different and irreconcilable opinions from which to extract any sort of consensus. Souter remains truest to the old Lemon test, but even he concedes that it has been substantially reworked in the cases after the late 1990s. Neutrality is important in this context, but not dispositive. Moreover, the old ‘effects’ prong in modified form becomes the great battleground for Establishment. A mere formal neutrality is rejected in favor of more intensive scrutiny of effects. The greater the resemblance of effects to the forms or indicia of establishment understood in an 18th century sense, the less likely the law would be viewed as neutral (Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995)). For this group, the mere fact that the accommodation is indirect—for example religious choices are made by individuals rather than the state—makes no difference in the analysis, any indirect connection between state action and religious benefit is suspect (Zelman v. Simmons-Harris, 536 U.S. 639 (2002), Souter dissent). Ironically, this view (that the character of the state involvement as either direct or indirect should have no effect) is shared by Scalia, but for the purpose of expanding the power of the state to directly aid religion, even in its religious endeavors (Mitchell). Lastly, Souter’s group remains true to the idea that a foundational purpose of the Religion Clauses is to avoid social and political divisiveness by avoiding the injection of Religion into the national political discourse (the Scalia camp’s response is that the only way to avoid religious discord is to permit all religions to freely participate in political life).

All have camps have substantially abandoned the three part Lemon standard (secular purpose, secular effect and little entanglement) or have reconstituted it to a greater or lesser extent in a neutrality standard (conservative majorities essentially turning the ‘effects’ prong of Lemon into a neutrality and endorsement standard over the strong jurisprudentially based objections of the Souter/Stevens camp). But the use of a common language belies the gulf that separates the definition of those terms as used by either camp. Souter starts from a foundation of separation, and the principles (if not even necessarily the holding) of Everson (Everson v. Bd. of Education, 330 U.S. 1 (1947)). He uses ‘original understanding‘ to paint a more complicated picture of the cultural understandings and consensus of the 1790s, than does Scalia and his camp (Lee v. Weisman, 505 U.S. 577 (1992) (Souter concurring)). For Souter, neither the discourse nor the practices of the times can fairly lead one to any sense of consensus about the meaning of the Religion Clauses. For Scalia, while the writings of the times might be conflicting, the practices of the times, in the aggregate, point to a general consensus against separation of government and religion. Neutrality has also acquired one of three meanings, spring from an unresolved conflict over the core animating principle of the Religion Clauses. The most traditional approach (now held by the most liberal camp) posits that neutrality requires neither governmental involvement in, nor support of, religion and is based on the idea that the Religion Clauses requires separation. The middle ground posits a neutrality between religion and irreligion, that is, that state action can neither privilege nor burden religion as against secular interests, and tolerates incidental benefits to religion where the benefit is evenhanded (Everson). Depending on how one interprets burdening or benefiting, this approach can (and has been) useful to both separationists and religionists. The most radical approach (now held by the most religiously conservative justices) posits the idea (derived from the 19th century Mormon cases and Justice Stewart’s dissent in Sherbert) that religion must be privileged over irreligion, and that neutrality requires an evenhandedness among religions (there was a bit of this in the recent ECHR case requiring UK naval vessels to provide a space for worshipping Satan).

So where are we now? The jurisprudence of the Religion Clauses has been changing radically over the last decade. Though it maintains much of its traditional outward forms, the substance of the analysis has been shifting from the framework of the Lemon standard and its inherent suspicion of any Church State contact to a standard based on formal neutrality, a greater willingness to permit governmental accommodation of religion, and an emphasis on a burden/benefit analysis. The new baseline cases include:

Free Exercise:

Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993); provides a basis for limiting the baseline rule of Employment Division v. Smith, 494 U.S. 872 (1990) by emphasizing the “neutrality” and “general applicability” limits of Smith. In effect, while Smith denies free exercise protection against neutral and generally applicable laws, Lukumi Babalu Aye imposes a standard for determining neutrality and general applicability that permits a court to look to the intent, impact and alternatives to achieving the statutory objectives, essentially a Sherbert style analysis. The future of the applicability of this approach may be hinted at in an opinion of Justice Alito writing as a judge of the third Circuit in Fraternal Order of Police v. Newark, 170 F.3d 359 (3rd Cir., 1999) in which the “generally applicable” standard of Smith was broadened to include categorical as well as individual exceptions, and thus broadly defined, applied a revivified compelling interest standard to the rule at issue.

Cutter v. Wilkinson, 544 U.S. 709 (2005); is both a Free Exercise and Establishment Clause case. It answered the question left open by Boerne (City of Boerne v. Flores, 521 U.S. 507 (1997)), that the state can legislate a statutory free exercise standard for federal statutes (Religious Land Use and Institutionalized Persons Act of 2000). More importantly, it set the standard for determining the judicial approach to questions under such statutory provisions. With respect to the power of Congress to accommodate Free Exercise without violating the Establishment Clause limitations, Justice Ginsburg refused to apply the traditional Lemon test (see opinion note 6). She suggested that this might be part of a class of legislation not compelled by the Free Exercise Clause and not prohibited by the Establishment Clause. To reach this result, the Court applied in lieu of the Lemon standard applied the following test: A governmental accommodation is permitted under the Establishment Clause (even if not compelled by the Free Exercise Clause in particular instances) where (1) it alleviates exceptional government created burdens on private religious exercise; (2) it takes adequate account of the burdens a requested accommodation may impose on nonbeneficiaries (ie a balance of burdens standard, that is that the accommodation does not serve to shift the burden from those accommodated to those who now must subsidize the accommodation who do not share the religious beliefs of the accommodated class); and that the accommodation will be administered neutrally among religious faiths (that is, the accommodation does not benefit one religion over or to the detriment of others). The Court affirmed that the Congress could single out religion for a benefit it does not confer on equally significant secular interests without impermissibly advancing religion (contrast the more narrow rule of Everson that focused on the incidental benefit to religion as the touchstone of permissible accommodation). With respect to the statutory Free Exercise elements of the statute, Justice Ginsburg would have read significant limitations in the interpretation of the balancing required under the compelling interest standard statutorily reimposed (all dicta because the case asserted a facial rather than an as applied challenge to the statute). She suggested that accommodations not be read to privilege religion over a state’s generalized interest in maintaining order and safety, and an expectation that the court would defer to the experience and expertise of state officials administering the statute. This case, I think, will be much more important as an Establishment Cause case than as a Free Exercise Case, For the latter, the O Centro case (below) will be more significant.

Gonzales v. O Centro Espirta Beneficente Unaio do Vegetal, 126 S.Ct. 1211 (2006); is important for two reasons. First it provides a definitive interpretive standard for statutory free exercise under the Religious Freedom Restoration Act and similar provisions. Second, it provides a window on the likely shift of standards in constitutional Free Exercise analysis. The statutory standard of Free Exercise requires application of the compelling interest standard to the particular religious claimants alone, so that state claims of general interests in uniformity, protection of the general health and safety, etc., will carry much less weight. The constitutional free exercise standard that underlies RFRA seems to have inclined the Court to narrow the reach of U.S. v. Lee 455 U.S. 182 (1982) in favor of a much broader reading of Sherbert and Yoder. If a Free Exercise analysis now focuses on the individual claimant, and the state’s interests in compelling the individual claimant to obey the law, then the state’s justification must be targeted directly n the claimant rather than a group of similarly situated people and absent a credible argument that an exemption would “seriously compromise” the state’s “ability to administer the program” it is unlikely to prevail. This solicitous approach to Free Exercise claims seems inconsistent with the dicta in Wilkinson but raised no objection among the judges who were in the majority in that case. I suspect that the divergences between Wilkinson and O Centro will be the subject of judicial exploration in the near future. I think that O Centro, combined with the evolving post RFRA “compelling interest” standard portends a significant expansion of the ability of individuals to exempt out of statutes on religious grounds. Note the importance of the case, O Centro essentially permits, on religious grounds, what the Court specifically refused to permit, on Commerce Clause grounds, in connection with the medical use of marijuana, even though the secular (medical) interests might have been characterized as compelling (Gonzalez v. Raich 545 U.S. (2005)).


Cutter v. Wilkinson, 544 U.S. 709 (2005); see description above for the standard. The case suggests that, as a general rule, the three prong standard (relieves burdens on religion, does not require others to subsidize the religious conduct accommodated, and advances interdenominational neutrality) is the basis for permissible accommodation under the Establishment Clause.

Zelman v. Simmons-Harris, 536 U.S. 639 (2002); this case provides the new jurisprudential framework for working through the jurisprudence of providing aid to schools (including parochial schools) specifically, and more generally on the principles of Establishment Clause jurisprudence. The case points to a new jurisprudential basis for Establishment Clause analysis, in which the first (purpose) prong of Lemon is reduced to insignificance (Rehnquist had already striven to narrow the first prong to situations where the statute at issue was entirely motivated by a religious purpose since Lynch v. Donnelly, 465 U.S. 668 (1984), see also Wallace v. Jaffree, 472 U.S. 38 (1985)), the effects prong is modified to serve as a basis for a new formalist approach., and the entanglements prong drops out completely (except in dissent). The new standard is based on a tolerance for incidental aid to religion where the aid is indirectly procured. “[W]here a government aid program is neutral with respect to religion, and provides assistance directly to a broad class of citizens who, in turn, direct governmental aid to religious schools wholly as a result of their own genuine and independent private choice, the program is not readily subject to challenge under the Establishment Clause.” Zelman. In such circumstances, the indirect and incidental benefit to religion is not fatal as long as the benefit can be reasonably attributed to the action of individuals and not the government. To apply this standard, the Court constructs a two-part reinterpretation of the Lemon ‘effects’ test: (1) is participation in the program based on neutral and neutrally applied criteria? and; (2) are the choices among the participants genuine and independent. For purposes of the first part of the test, the court looks at the class of individuals to receive the benefit, and the rules for institutional participation in the program. The court also looks to see if there are any financial incentives that skew the program toward religious schools. With respect to the genuineness and independence of individual choice, the Court looks to the element of coercion inherent in the choice (was there a genuine opportunity for choice among religious and non religious options, evaluated by looking at all options available to children, not just options among private school choices. The effects test no longer has much of a basis in actual effects—the touchstone is formal effects (/a consequence bitterly derided by Justice Souter in dissent). “The constitutionality of a neutral educational aid program simply does not turn on whether and why, in a particular area, at a particular time, most private schools are run by religious organizations, or most recipients choose to use the aid at a religious school.” Zelman. Justice Souter’s dissent provides an excellent application of the old Lemon test and an explanation of the way the majority’s new standard departs form the old Establishment Clause jurisprudence, especially with respect to the reconstitution of neutrality. Justice Breyer’s dissent provides an excellent account of the older jurisprudence that a core principle of the Establishment Clause is to avoid sectarian strife, and the relationship of this core principle with the old third prong.

Mitchell v. Helms, 530 U.S. 793 (2000); a plurality opinion that is useful only for the exposition of what may be the future of Establishment Clause jurisprudence should Scalia/Thomas every get a majority of the Court behind them. There is a nod to Lemon but the standard the plurality applies has hardly anything to do with the old standard. It starts with the modern conservative notion of neutrality in the provision of aid: “if the government, seeking to further some legitimate secular purpose, offers aid on the same terms, without regard to religion, to all who adequately further that purpose, then it is fair to say that any aid going to a religious recipient only has the effect of furthering that secular purpose.” This stands the old effects test on its ear through a neutrality analysis that starts from the presumption that any attempt to keep religion out of participating in governmental programs constitutes a burdening of religion (in contrast to the earlier approach that started form the presumption that the government had no obligation to give anything to religion). Given this starting point, the plurality questioned the need to avoid direct government aid to religion—as long as its object is secular, the use of the benefit for purely religious purposes should be irrelevant. The plurality was countered by strongly negative concurrences and dissents. The concurrence refused to embrace the purpose or object neutrality is enough standard in favor of the rule that would eventually form the majority rule in Zelman. The dissent offered the more traditional substance over form analysis, suggesting that formal neutrality that had the effect of permitting the state to support religion in the manner that was found offensive at the time of the adoption of the Religion Clauses ought to remain offensive; since the direct or indirect support of a religious establishment was at the heart of the Religion Clauses in 1790, then it ought to form the heart of analysis now. Formalist standards based on neutrality effectively eviscerate the core values of the Religion Clauses even as they pretend to further them.

Locke v. Davey, 540 U.S. 712 (2004); illustrates the limits of Establishment Clause neutrality and formalist analysis and provides, for the first time, a window into the fundamental break between the radicals (Scalia/Thomas) and the conservative moderates (Rehnquist here joined by the liberal traditionalists). It presents the inverse of Cutter v. Wilkinson, 544 U.S. 709 (2005) and ought to be read together with that case. The majority rejected the idea that because the Establishment Clause might permit a state to permit individuals to make a private choice to use state money to pursue a degree in devotional theology, it would constitute a violation of the Free Exercise Clause to deny individuals that right. Like Wilkerson the Court confirmed that the Free Exercise and Establishment Clauses do not cover the same ground. The more interesting question, then, was whether an individual could use the Free Exercise Clause to compel the State to permit him to use the funds in a way forbidden by the State. The answer, in this case was no. In arriving at that answer, the Court might have used language that could limit the breadth of the constitutional Free Exercise Clause in ways that might conflict with the implications of O Centro. It rejected the idea, expressed by the plurality in Mitchell, that any benefit program that does not permit religion to participate on the terms as secular groups or individuals must be presumptively unconstitutional because it cannot be neutral with respect to religion. The Court, over a vigorous dissent, held that interpretation to constitute an unwarranted extension of the facts and reasoning of Lukumi and its progeny. Instead, the Court embraced the more traditional baseline for determining neutrality: the fact that the state has chosen not to fund a particular category of instruction (in this case) does not constitute a burdening of the category, as long as there is no other impediment (“It does not deny to ministers the right to participate in the political affairs of the community . . . . And it doers not require students to choose between their religious beliefs and receiving a government benefit”).

McCreary County v. ACLU, 125 S. Ct. 2722 (2005); provides strong evidence of the volatility of Religion Clause jurisprudence and the importance of the lack of consensus on Religion Clause fundamentals for the development of law. McCreary can be read as Souter’s dissent in Zelman now reconstituted as a majority opinion in a case involving not school funding, but the use of the state or its facilities to present religious messages. At best, it suggest that the Establishment Clause will apply different standards depending on the context (funding vs. presentation of messages). At worst, it suggests that the Court has been unable to settle on a stable jurisprudence as it evolves from the Everson/Lemon framework to the Zelman/McCreary County/Wilkerson framework. Justice Souter announced the fundamental principles of Establishment Clause jurisprudence—(1) neutrality between religion and religion, and between religion and nonreligion; and (2) liberty and religious stability demand a religious tolerance that respects the religious views of all citizens—which may be hard to reconcile with other cases. Justice Souter rejected the attempt to narrow the application of the purpose prong of Lemon (purpose prong violated where religion is a primary (and not the sole) motivation of enactment). Justice Souter than announced a more narrow power in government to support religious messages, one grounded in separation and the development of a clear context in which the religious message is essentially overpowered by a secular message. Justice Scalia, in dissent, categorically rejects the Religion Clause principles embraced by the majority, asserting that the only thing required by the Religion Clause is denominational neutrality. Expanding on the hints he made in Mitchell, Justice Scalia here advances his notion that the Establishment Clause permits the state to favor one religion over another, as long as the formal requisites of neutrality are met (assuming that true neutrality is impossible) and offering members of non majority religions the solace of the Free Exercise Clause, to the extent it is available (and of course, for Scalia, the Free Exercise Clause might be more available than under current doctrine, but that requires overturning the conservative moderate’s holding in Locke v. Davey).

Van Orden v. Perry, 125 S. Ct. 2854 (2005); was the companion case to McCreary County (display of the Protestant version of the Ten Commandments by the state), but this time a plurality of the moderate conservatives reached a different result than in McCreary County. Justice Rehnquist’s plurality stressed tradition and the practices permitted at the time of the Founding. He also suggested a theory hinted at since McColloch v. Maryland, a sort of constitutional adverse possession (since the practices have been so long permitted without complaint, it is too late in the day to suggest that they should never have been allowed). And the plurality again expressed its belief that Lynch v. Donnelly’s reading of the purpose prong of the Lemon test, a reading rejected by Justice Souter in McCreary County, is the appropriate basis for Establishment jurisprudence. Justice Breyer, providing the critical fifth vote, appeared to reject the Chief Justice’s attempt to resurrect the Lynch interpretation of the purpose prong and hinged his decision both on the ‘laches’ argument and his sense that any other result would show a hostility to religion that would advance the sectarian strife that Justice Souter declared in McCreary County to be a baseli9ne principle for application of the Establishment Clause. Justice Stevens’s dissent stressed the denominational neutrality principles as the basis for decision. Since the display favored one set of religions over others, then the display constitutes an invalid Establishment.

Good News Club v. Milford Central School, 533 U.S. 98 (2001); is valuable both for the application of the new neutrality principles in cases involving the power of the state to limit religious expression on or in connection with state functions, and the increasing willingness of the Court to focus on a formal standard and avoid any substantive analysis. The case stands in tension with the opinions in which Justice Souter has written for the majority. To that extent, it also illustrates the volatility of Establishment jurisprudence. Justice Thomas’ opinion was formalist and focused on neutrality analysis without regard to the content of the activities to be permitted. Justice Souter’s dissent emphasized a substantive analysis, which he suggested ought to trump the formalism of the majority’s analysis. He found it odd that the disestablishmentarianism of the Establishment Clause ought to produce a jurisprudence that compelled the state to permit the holding of religious services on its property.


This short summary of current case law suggests a number of things:

1. The Supreme Court has essentially abandoned the jurisprudential standards that guided it from Everson through the early 1990s. Those standards, based on a roughly observed consensus about the application of a neutrality between religion and non-religion, and among religion, was based on a notion of separation between religion and the state. But this set of standards was always fragile. It reflected a temporary pause point within a polity that did not know its own mind about the relationship between the state and religion. Even as the Court was crafting doctrines that were meant to make it difficult for states to accommodate religion, exemplified in the Lemon standard, its members were suggesting that this standard was either wrong, unworkable or based on foundational principles that ought to be rejected.

2. The Court has not been able to fashion another consensus. Instead, it has moved its jurisprudential moorings to one that permits the Court to tolerate greater state accommodation of religion, even accommodations that might incidentally favor religion, and that makes it harder for the state to prevent dissenting individuals from excusing themselves form compliance with statutes under the Free Exercise Clause.

3. That movement has been accomplished by a change in the language of analysis—from purpose, effects and entanglement, to neutrality, benefit, burden, and choice. Whatever the (temporary) outcome of any new consensus, it is clear that the Court has adopted a new jurisprudential language for its engagement with the Religion Clauses. And indeed, these new cases, and the new framework for analysis, makes most cases decided before 2000 unlikely to be useful (other than for the value of their holdings). It is clear that one can go back to the older cases and apply the new framework in ways that either reinforces the original holdings or suggests that the cases are now much more vulnerable. As a result I expect to see many of the older cases litigated again under the new framework.

4. The new language has also divided the Court between formalists and functionalists. That divide has been most apparent in the division over the meaning of effects and the character of neutrality. While the obsession with substantive analysis produced its share of perverse results in the 1960s and 1970s, the new formalist framework will produce its own perversities. As we have seen, under a formalist framework, the Court has been willing, by applying an original understanding analysis, permitted those activities which to an 18th century sensibility were at the heart of establishment—the financial support of theological training and the support of religious services and education. The new formalists say this is different because the state will be expected to establish all religions, the liberal traditionalists say this is an absurd result and one that violates the core understanding of the Clauses (and therefore would require a constitutional amendment to sustain).

5. There is a great division between at least two factional blocks on the Court as to the guiding principles of the Religion Clauses. One group believes that religion must be privileged over non-religion, and even that the majority religion may be privileged over all others, as long as the state adheres to formal neutrality and demonstrates no animus to any religion, and that the path to disestablishment lies in the establishment of all religion. They believe that the Religion Clauses requires the state to favor religion, and that separation is essentially a structural burden on religion. On the other side the liberal traditionalists focus on separation as the baseline for analysis. The state has an active obligation to distance itself from all religion and that the starting point for all analysis is neutrality between religion and irreligion. While state may not burden religion, they are under no obligation to provide religion any benefit, including benefits otherwise made available to secular interests.

6. Even if the newest members of the Court will produce consistent majorities for a time, those majorities will, in turn, be unstable. This is an area of constitutional law in which, over the last century, majority opinions have a way of turning into dissents and vice versa with stunning regularity. This is not surprising; the lack of consensus reflects in full measure the divisions within our political culture, divisions that show no evidence of ending soon. It is likely, however, that the Court will increasingly turn to the jurisprudential baseline advanced by Justice Scalia. It is likely that Justice Alito will tend to share Justice Scalia’s views. But Justice Roberts, to the extent he embraces the former Chief Justice’s views, may act as a limiting force.

Wednesday, November 22, 2006

The Problems of Being a Great Power: China and Neo-Colonialism in Africa

The People’s Republic of China has moved to the forefront of important global political powers. The Chinese have reaped some of the benefits of this new found power. China has started projecting its power in more sustained and direct fashion. It has felt freer to influence government action in the states around it—from the Koreas to Japan and the states of Southeast Asia (particularly Vietnam, with which it has a long love-hate relationship).

Africa has proved to be a particularly important place of power projection for China. China’s President Hu Jintao, and Premier Wen Jiabao, made a much publicized state visit to ten African states. During those visits, China made a great point of extending its financial resources to the host states—while aggressively working to lock up access to the vast natural resources of those states for Chinese industry. Deals were made with leaders who have questionable human rights records, but the deals were effected on terms significantly advantageous to China.

Sunday, November 19, 2006

Multinational Corporations and China: On Multinational Corporations as an Instrument of Globalization and the Projection of State Power

In an article published November 11, 2006 (Cheng Siwei On Economic Globalization, People’s Daily Online, Nov. 11, 2006), Cheng Siwei, the Vice Chairman of the National People’s Congress, the Supreme legislative body under China’s 1982 Constitution, provided a window on the thinking of the Chinese political elite about globalization and multinational corporations. Siwei’s understanding is not to be lightly dismissed; it reflects the thinking of the top echelon of Chinese political society and provides an insight on their understanding of not only economic globalization, but, more importantly, on multinational corporations as the agents of that form of globalization.

I want to focus on two points that Cheng Siwei made in that article. The first is that there is a fundamental distinction and incompatibility between economic and financial markets globalization. The second is that economic globalization is driven by multinational corporations, so that if a state means to be a player in economic globalization it must send its multinational corporations out into the world. Together they suggest an understanding of financial markets and of the mechanics of economic globalization that is to some extent substantially different than that held in the West. These differences in conceptualization may have a great effect as China joins the great commercial states and projects its power (as well as understandings of the nature and character of that power) on the world.

Cheng Siwei grounds his understanding of financial markets globalization in traditional Marxist-Leninist terms. He has this to say:

Financial globalization is incompatible with economic globalization. World financial globalization means world currency can only be measured by its purchasing power after breaking away from the gold standard. The exchange rate in various countries has become a policy tool for competition. World capital floats much faster than before. According to data from the Bank for International Settlements, in 2005 the surplus value of the world's financial products reached 325 trillion dollars, about 7 times the world's GDP. The scale of world finance has expanded while the world financial market are so heavily interdependent that no matter where there is a problem, shockwaves are felt everywhere (Cheng Siwei, id.).
We have seen this before. It was perhaps best theorized during the 1990s by Fidel Castro in many of his writings about global capital and financial markets. See, Larry Catá Backer, Ideologies of Globalization and Sovereign Debt: Cuba and the IMF, 24 PENN STATE INT’L. L. REV. 497 (2006). Cheng Siwei’s conception is anachronistic and over narrow, of course. Cheng Siwei (and by implication, Chinese elites) continue to see financial markets in two dimensional terms—as a function of exploiting financial bottlenecks like currency exchange rates and as a means of artificially creating economic advantage. More importantly, it centers financial globalization in the state, and state to state relations. This makes sense from veterans of command economies. But it belies the realities and complexities of financial markets. It ignores the fact that capital, and the markets through which it is deployed, have to some great extent, escaped the bonds of states that had traditionally exerted a tremendous amount of regulatory control. Global financial markets do not serve the state so much as they serve the needs of productive economic activity. Just as labor migrates to meet demand and generate value, so capital now moves, even more freely than labor, to entities that most effectively generate returns, that is, that produce value. Financial markets globalization has created both a substantial amount of integration, and, as a result, a substantial amount of vulnerability to shock. But all human activity can be characterized by risk. Siwei’s statist and antiquarian views do not bode well for China’s recent forays into the global financial markets through a revivified exchange system centered in Shanghai. On the importance of the emerging different framework perspectives on capital movements and the state, see Larry Catá Backer, Economic Globalization Ascendant: Four Perspectives on the Emerging Ideology of the State in the New Global Order, 16 BERKELEY LA RAZA L.J. – (forthcoming 2006); and Larry Catá Backer, Globalização Econômica e Crise do Estado: um estudo em quatro perspectives, SEQUENCIA (forthcoming 2006).

Much more interesting, from my perspective, are Cheng Siwei’s views on multinational corporations. Again, a residue of old command economy, statist orientation tends to color his views. He has this to say:

economic globalization is based on multinational corporations. Multinational companies are the leaders of economic globalization. The behavior of some corporations, such as intervening in countries' internal affairs, influencing the local economy or evading taxes has been criticized, but most try hard to regulate their company at all levels (Cheng Siwei, id.).
For Cheng Siwei, and not unreasonably from his perspective, corporations can be viewed as the means through which states now project power—economic power. Corporations are special emanations of the state, a concession of state power to individuals for the purpose of producing wealth for the benefit of the state. Indeed, like many elites in the developing world, Cheng Siwei shares the view that multinational corporations exercise not only economic but political power as well—able to intervene, directly or indirectly, in the affairs of weaker states. In this sense multinational corporations and some states exist as equals. So conceived, multinational corporations appear to be the most efficient means, not only of engaging in global economic activity, but doing it in a way that returns significant value to the home state. They are dependent on their home state, but substantially independent as well, behaving well or badly as they see fit.

Now it gets interesting. If multinational corporations are the basis of economic globalization, then if China is to become a major active (rather than a passive) player in economic globalization, then it will have to develop and project its won army of multinational corporations, corporations loyal to and working for the benefit of the state. For Cheng Siwei, then, projection of economic power reduces itself to two things: (1) the production of a sufficient number of well endowed and loyal Chinese multinational corporations, and (2) the development of acceptable governance norms for this army of agents of Chinese economic globalization.

On the importance of producing an army of Chinese multinational corporations, Cheng Siwei had this to say:

Cheng Siwei also says that China should develop its own multinational companies. Chinese companies should be able to invest in other countries, but they must learn the local laws, culture and history as well as establish local contacts. There is a lot of work which needs to be done. ‘Our enterprises have not yet been able to find representatives to establish offices and build up factories elsewhere. But there are still fewer truly transnational companies operating,’ claims Cheng. . . . Cheng Siwei stressed that it would be impossible for domestic enterprises to abandon their Chinese characteristics; they cannot avoid the situation in China, its industrial and business culture. Simply copying foreign businesses will not be enough to make Chinese enterprises the best in the world (Siwei, id.).
To take advantage of globalization, China must deploy agents of economic production that share the characteristics of the most successful producers of economic wealth. This is a notion that has been well absorbed by the Chinese elites since the 1990s and the enactment of the Company Law and the securities markets. But it is not enough to reorganize productivity in corporate form. That form must be projected abroad. China, to succeed in the globalized economy, cannot merely produce wealth, it must command capital. “A transnational company must develop a global strategy and establish its profit and operation model at a global level” (Cheng Siwei, id.). And, of course, there is a certain amount of irony here. It is hard to reconcile Siwei’s views on multinational corporations and his views on financial markets globalization. An army of Chinese multinational corporations maximizing their economic wealth must be free to move capital on a global basis as part of a “global strategy.”

There is also a certain tension here as well. Cheng Siwei expects that multinational corporations from China not serve as vehicles for the production of private wealth for their principle stakeholders on a Western model. These multinational corporations cannot “abandon their Chinese characteristics” or “avoid the situation in China.” Instead, these will be agents of wealth production in which the State will take a major stake. China means to reinvent its command economy in corporate form. It is not clear, however, whether China can keep multinational corporations politically parochial and economically transnational. I have written about this mopre extensively elsewhere. See, Larry Catá Backer, Cuban Corporate Governance at the Crossroads: Cuban Marxism, Private Economic Collectives, and Free Market Globalism, 14 (2) JOURNAL OF TRANSNATIONAL LAW & CONTEMPORARY PROBLEMS 337 (2004). And yet, Cheng Siwei has a point. Chinese multinationals will tend to repatriate wealth to some extent, and will tend to project a Chinese perspective onto global economic culture. But the repatriatrion will be limited to the extent that Chinese multinartional corporate wealth can be maximized elsewhere. See Larry Catá Backer, The Autonomous Global Corporation: On the Role of Organizational Law Beyond Asset Partitioning and Legal Personality, 41(4) TULA LAW JOURNAL – (forthcoming 2006). And Chinese corporate perspectives will be bounded by the normative framework not of China, but of the community of multinational actors in which such corporations will tend to fucntipon. That fra,mework is harmoinizing and multi national; as both economics and economic culture, it is extremely difficult for any single political community to control.

To the extent that this corporatized command economy can project its activity abroad, then all the better. This serves China in two ways. First it reverses the power relationships between China and the West. Chinese, not Western, corporations will start to be the agents of productive economic activity. It will also have significant “psychological” effect. To the extent that Chinese corporations go out into the world, China will be able to overcome its 19th century legacy as an exploited and semi-colonized state. This effect cannot be underestimated as a motivating force. Connected to this is the idea that, by holding active rather than passive economic power, it will be able to join, at least in its own mind, the ranks of the developed states.

But this sort of effort requires expertise. And here, again, there lingers a certain sense of inferiority. Siwei explains that:

"Some people think Chinese enterprises don't have much management expertise. I disagree. I think Chinese enterprises have contributed a lot to China's fast development. The problem is that we haven't seriously studied our enterprises to find out how they work. We should send our professors into companies to summarize their experiences so that those experiences can be developed as a theory." (Cheng Siwei, id.).
And how are Chinese corporations to project Chinese economic power abroad? Well, in the usual way, by acquiring ownership of productive assets abroad. Cheng Siwei notes that “Some Chinese companies already want to purchase foreign enterprises ¨this is another development model¨ but they should pay attention to the market and cultural differences.” (Cheng Siwei, id.). Thus, both a recognition of the forms in which economic power is projected, and a caution about its deployment. And why the caution? Perhaps because of a mutuality principle. Were the Chinese elite to begin to advocate Chinese multinationals to act without regard to the local characteristics of the host states in which they operate, they might find themselves treated to the same actions by the large number of multinational corporations that China hosts.

The consequences and character of the free movement of capital, the character and nature of multinational corporations, the possibilities of pseudo-mercantilist policies through the medium of transnational economic entities, the projection of economic power as the new imperialism—all of these ideas are quickly being absorbed by the Chinese elites. The manner of that absorption serves as evidence of the way in which even the harmonization of “big” concepts are sometimes contextually constrained. China understands economic and financial globalization from its own perspectives, grounded in Marxist-Leninist principles, its own history as a semi-colonial state, and its organization as a command economy. This perspective will significantly affect China’s ability to be a successful player of economic globalization where it does not make the rules.

Thursday, November 16, 2006

Law Reform, Administrative Authoritarianism and Power in China

I was rereading Stanley Lubman’s article, “Bird in a Cage: Chinese Law Reform After Twenty Years,” 20 NW. J. INT'L L. & BUS. 383 (2000). For Lubman, a foundational source of China’s difficulties with the creation of law and legal systems, of course, is the fundamental problem of the Communist Party and the place of the CCP within the state apparatus. See, e.g., id., at 405. I do not deal with that here, but have suggested an alternative approach elsewhere. Larry Catá Backer, “The Rule of Law, the Chinese Communist Party, and Ideological Campaigns: Sange Daibiao (the 'Three Represents'), Socialist Rule of Law, and Modern Chinese, Journal of Transnational Law and Contemporary Problems,” Vol. 16, No. 1, 2006 .

Still, Lubman makes a point in that article the consequences of which are worth developing. He reminds us that “To give concrete form to economic reforms, the Chinese state has generated an extraordinary amount of legislation. . . . As a result of this energetic legislative activity, which has been but sketched here, China now has a large body of legal rules.” Id., at 386. But, Lubman suggested, lots of rules do not necessarily make a legal system. Among the several factors contributing to what he calls Chinese legal fragmentation (Id., at 390), one is particularly interesting for my purposes here:

“The language and phrasing of Chinese legislation and rules create wide scope for administrative discretion in interpretation because a major goal of Chinese legislative drafting is "flexibility." As a result, at all levels Chinese legislation is intentionally drafted in "broad, indeterminate language," which will allow administrators to vary the specific meaning of legislative language with circumstances. Standard drafting techniques include the use of general principles, undefined terms, broadly worded discretion, omissions, and general catch-all phrases.” Id., at 391.

There is a small but interesting insight here that is buried but worth extracting. The rapidity of changes to Chinese law (the Company Law, the securities laws, anti-takeover legislation, for example, and related economic regulation) has two effects. The first is the intuitively straight forward, well expressed by Lubman—the attempt to create a system of laws that might propel China closer to conformity with a least minimal Western or global expectations of rule of law systems). The second is intimated by Lubman’s observation of the effect of Chinese legislative “flexibility.” Lubman is right that this flexibility gives bureaucrats a certain degree of power. But the power to which Lubman refers is merely that given in any current statute.

I would posit that the extent of bureaucratic power is actually far greater. Administrative power is not merely a function of the ambiguity in any given statute, it is also a function of the rate at which these rules are themselves amended. Rapid rule amendment tends to shift power to those who create and administer the rules and away from those who must change their behavior to conform with the rules. The more quickly rules change, the more dependent the target population is on administrators for guidance. As well, the less effective the non-governmental sectors are in defending people against administrative determinations. As a result, the population remains more dependant on the state and its apparatus. While a formal rule based system is created, there are lots of rules, the state retains a monopoly of knowledge about the workings of those rules. Without a stable law system, outside lawyers and other elements of the non-state sector cannot build the necessary expertise to adequately defend clients in proceedings, or to effectively use the law for the benefit of their clients.

A moral worth some thought—sometimes rapid legal change can be as destabilizing as no change at all. Sometimes great changes can work to perpetuate an authoritarian political structure more effectively than a stubborn refusal to enact a complex formal system of law. Sometimes, even a formally adequate legal system can, by appropriate control of the rate and nature of changes in its content, can reduce the value of that system to insignificance. Chinese experience suggests the continued value of Aristotle’s insight of the danger of legislative changes, a danger much augmented by a great increase in the rate and extent of change: “For the law derives all its strength from custom, and this requires long time to establish; so that, to make it an easy matter to pass from the established laws to other new ones, is to weaken the power of laws.” Aristitle, Politics, Bk II, ch. VIII (A web translation of Aristotle’s Politics may be found by clicking on this link).

Rapidly changing law loses its substantive effect, becoming a shadow of itself. The production of a swiftly changing set of legal codes may generate no legal system at all. Worse, it may produce a certain instability. On the one hand, the system vests great power in those who control the production of legal rules and the formal sites of their administration—the courts and the bureaucracy. On the other hand, the system risks losing authority as people avoid the arbitrariness of the new and changing patterns of compelled behavior, through the development of alternative private or informal systems. Aristotle decribes this tension as a balancing act of sorts: “for the alternations will not be of so much service as a habit of disobeying the magistrates will be of disservice.” Aristotle, id. Luhman intimates this result. Other commentators have demonstrated this tension and the resulting reality in the decade after Luham wrote. See Symposium: China: Law, Finance, Security, Journal of Transnational Law and Contemporary Problems,” Vol. 16, No. 1, 2006.

Beneath the formal and official system of laws, then, what remains is a very real and powerful system of custom and habit. In China this traditional system, like the formal system weaved in the legislative looms of Beijing, and the system for the enforcement of those norms, remain in the hands of the governmental class with the authority or power to impose it. The consequence is a continuation of what, to Western eyes looks like an authoritarian administrative state in which legal alterations may have little effect. But unbderstand also, that the custom and habit of which I refer is not merely the usual reference to the old Confucian mandarinate system or the socio/legal culture which it sustains. I refer, instead, inthe first instance, to the customs and patterns of institutonal behavior forged over the course of the last half century under the Chinese Communist Party. Those networks of relationships, power diffusion, and habits of decision making cannot easily be overcome by "paper" statutes or "paper" rules. The reality of the socio/legal culture of China, and especially of the continued existence of multiple power apparatus (State and Party), complicates any attempts at Western style positivist legal reform (that is, of legal reform through the expediant of enacting pretty words on clean paper by a formally constituted legislature for the outside world to see and approve). Larry Catá Backer, “The Rule of Law, the Chinese Communist Party, supra. I do not mean to suggest that rule of law is impossible in China. I also do not suggest that harmonization of economic regulatory standards is impossible. I do suggest that pressuring China to conform to Western forms of rule of law society is playing a fool's game--a game that the Chinese will be more than happy to play for its own advantage. Frankly, were I in the Chinese leadership I would do the same. But this strategy poses a great danger for China in the long run. The danger for China is that, while its legislative organs are busy producing framework legislation satisfying to the West (and of dubious internal effect, especially given the penchant for less Western oriented implementing regulatory systems, the point that Lubman is at some pains to correctly stress (“Bird in a Cage: Chinese Law Reform After Twenty Years,” 20 NW. J. INT'L L. & BUS. 383 (2000)), the Chinese leadership will lose sight of the critical necessaity of shaping their own indigenous rule of law socio-political culture. Recent Party ideological campaigns point in the right direction, but it is unclear whether there is the will to follow through. Fifty years of Party insttutionalization provides at least the normative foundation for order beyond individual will. Is there a sustained courage among Party leaders to implement these norms effectively in a way that is sensitive to individuals, the collective, and effective political organization?

Aristotle reminds us that formal legal structures have definitive limits, and may actually further objectives inimical to their forms. Thus, he tells us, authoritarian states “where the supreme power is in the laws, may not be democratic, and yet in consequence of the established manners and customs of the people, may be governed as if it were.” Id., Bk. IV, ch. V (A web translation of Aristotle’s Politics ). But states that appear to adopt a more law based system may instead produce an inclination to what Aristotle describes as oligarchy, “for the people do not easily change, but love their own ancient customs; and it is by small degrees only that one thing takes the place of another; so that the ancient laws will remain, while the power will be in the hands of those who have brought about a revolution in the state.” Id (A web translation of Aristotle’s Politics). Using conformity to Western legal standards as a veil behind which to entrench limitless individual discretion and the will of factions will do more to undermine recent efforts at socialist market ecopnomy and democratic authoritarianism centered in the Party than any concerted efforts by the West to undermine the current system of Chinese governance.