I have been teaching a seminar on globalization and the rule of law for the past two decades. Last year the focus of the seminar was the “authoritarian challenge” to globalization and the rule of law. I am posting here the core syllabus I used in that seminar. I also include links to the reading material listed in the syllabus. Comments on the reading list are welcome if constructive and polite. (Note that not all of these – extensive(!) – readings were required – many were recommended and provide background for students writing focused research papers.)
INTRODUCTION
The benign view of globalization suggested that a universal model – based on ideas and values emanating largely from the Anglo-American or “western” capitalist world – could and would spread smoothly and steadily across the globe, like a continuous function or, more prosaically, like a bucket of paint poured out at the north pole:
The events of 9/11 and the wars that have followed in its wake have torn large holes in this “benign” globalization thesis.[efn_note]See Gunter Grass & Pierre Bourdieu, “A Literature From Below,” The Nation, July 2, 2000, at 26. “Since the Communist hierarchies fell apart, capitalism has come to believe that it can do anything, that it has escaped all control. Its polar opposite has defaulted. The rare remaining responsible capitalists who call for prudence do so because they realize that they have lost their sense of direction, that the neoliberal system is now repeating the errors of Communism by creating its own dogma, its own certificate of infallibility.”[/efn_note] The world is, in fact, far less predictable than we might have thought a generation ago. It is, in the words of the late mathematician Benoit Mandelbrot, “rough” or “discontinuous.”[efn_note]Benoit Mandelbrot, Fractals and the art of roughness, TED2010. Note his comment at the outset that there is, in fact, order within roughness. That is a metaphor for our pursuit this semester – to see if we can find order within the apparent roughness of the world today.[/efn_note] Unseen events crop up. The unexpected is now the expected. We know that principles of justice and fairness should underpin legal institutions, but how do we design those institutions in such a “rough” and unpredictable environment?
If the benign globalization thesis is now heavily contested, it is not clear what kind of framework can replace or repair it. Advocates of globalization continue the push for free trade agreements and economic reforms aimed at strengthening corporate and market-based institutions. You can call this the “Davos road,” after the annual confab that takes place in the winter in a Swiss ski resort town. But resistance remains from a wide range of forces, some very concerning indeed. Clearly, the victory of President Trump was motivated in part by a reaction against globalization. Other non-political challenges to globalization include terrorism, drugs, the migration, immigration and refugee crises and many more.
A central structural problem is that the globalization process does not necessarily respect the existing international legal framework. That legal system is constituted by states and works through traditional “state actors.” In theory, those states provide legitimate mechanisms that fill out the content of the legal system and then, in turn, bring to the international system a legitimate role in international legal structures. But the goal of a global community of democratic states operating under a legitimating framework such as the “rule of law,” seems now very far away.
The working hypothesis of this seminar is that authoritarianism is a critical new force in the global political economy. From Brazil to Hungary, from Beijing to Moscow, we see the rise of new forms of governing that aim to suppress or restructure traditional democratic institutions. In some ways the new authoritarianism builds on older undemocratic traditions, such as fascism and Stalinism. But in other ways it is creating different ways of thinking, new ideological directions are being mapped out. And thus, if globalization has been touted by liberals to spread democratic institutions it now has to answer a serious challenge from the right. In our seminar discussion and through your own research we will explore these problems and try to devise new ways to confront them.
All readings not linked here can be found on my Google Drive.
SEMINAR TOPICS
1) What is the “Rule of Law”?
The purpose of the first two weeks is to introduce the concept of the rule of law. We will examine the concept in general and use the famous short essay by E.P. Thompson as a basis for our examination.
ABA, “What is the Rule of Law?”
E.P. Thompson, “The Rule of Law”
Morton Horwitz, “The Rule of Law: An Unqualified Human Good?”
Douglas Hay, “E.P. Thompson and the rule of law: Qualifying the unqualified good”
Video profile of E.P. Thompson: https://youtu.be/eirT8D28bTk?si=eweKa-39vLgAF_cE
Peter Linebaugh, “Charters of Liberty in Black Face and White Face: Race, Slavery and the Commons”
Stephen Sedley, “Resistance to Torpor”
Talk by E.P. Thompson: https://youtu.be/s2CN3BerJdU?si=ivi7qTdzpOYelQnF
2) What is “Globalization”?
This week’s reading introduces the globalization concept itself and explores its relationship with the “rule of law.” The readings travel widely and raise a range of issues. Our discussion should give us a shared foundation to work with throughout the semester.
Jeffrey Sachs, “Globalization and the Rule of Law”
John Gray, “The World is Round”
Nouriel Roubini, “The Political Left and Right Are Being Upended by Globalization Politics”
Leo Panitch and Sam Gindin, “Introduction” (pp. 1-21) in The Making of Global Capitalism: The Political Economy of American Empire.
Panitch and Gindin, “Rules of Law: Governing Globalization” (pp. 223-245)
Susan George, “What Now?”
David Smith, “Mapping the Great Recession”
Thomas Friedman, “A Theory of Everything”
3) Germany: Law and the rise of the Nazis
This week we look at a complex and very troubling period of human history, the rise to power of the Nazi party in Germany. Our goal is to see how law is both a barrier to authoritarian forms of rule and can be used by those forms to rule. This is a paradox that runs through the course.
Given the magnitude of this week’s topic, the materials focus on a major intellectual conflict between two leading legal theorists of this period, Hans Kelsen, a liberal and anti-Nazi, and Carl Schmitt, a conservative who joined the Nazi party. I provide several pieces that introduce these figures and their competing theories of law, including some excerpts from their work. As most of you will likely be unfamiliar with this debate, start with the Introduction by Leelapatana, from her Ph.D. thesis.
As she notes in her thesis: “Carl Schmitt and Hans Kelsen were prominent jurists during the Weimar Republic who engaged in the debate on the nature and use of emergency powers in a political crisis of liberal democracy (‘PCLD’). As a liberal, Kelsen advocated a law- based response to an emergency situation together with the narrow interpretation of emergency powers and constitutional review, whereas as an anti-liberal conservative, Schmitt called for legally unconstrained emergency decisions by the sovereign to exclude ‘enemies’ causing a political crisis.”
Then move on to the more substantial pieces, although you need not read all of them. The two “Intro’s” to Kelsen and Schmitt include biographical information as well as excerpts from their most important work. The Scheuerman essay provides an in-depth critique of Schmitt. The essay by Ermakoff is very good at describing how the Nazis used law and lawyers as part of their rise to power. I also provide some brief background material (from Richard J. Evans book, The Coming of the Third Reich) on what was happening to lawyers and judges as the Nazis came into power in 1933.
Finally, I include below some links to useful online material (Wikipedia, etc.) that can provide useful historical context. This includes one link to the Nurnberg trial of Nazi era judges which may be of interest – the trials were an attempt to re-establish the importance of a genuine and legitimate rule of law after World War II.
Links:
https://en.wikipedia.org/wiki/Weimar_Republic.
https://en.wikipedia.org/wiki/Weimar_Constitution.
http://law2.umkc.edu/faculty/projects/ftrials/nuremberg/Alstoetter.
https://en.wikipedia.org/wiki/Judges%27_Trial.
4) Stalinism and Russia
This week we look at Stalinism and its legacy in post-Cold War Russia under Putin. Our reading examines both of our major themes: the rule of law and globalization. I have linked here two shorter excerpts from the famous novel about the Purges under Stalin, Arthur Koestler’s Darkness at Noon. One is called Interrogation and the other Sentencing. I have also posted two journal articles: one describes the battle over the rule of law in early years of the Russian Revolution as the Lenin-era gave way to the Stalin-era and then one on what happened in the real-life purges to Evgeny Pashukanis, the leading legal theorist of the Bolshevik revolution. Finally, I posted a paper on the role of law under Putin and one on the nature of Putin’s Ideology by a leading political scientist.
Here is a list of links to shorter pieces as background reading on the nature of Stalinism as well as links to materials on Putin and Ukraine:
Stalinism and Russia
What happened to the Russian Revolution
Russian imperialism in the Stalinist era
Putin/Ukraine:
https://www.marxists.org/history/etol/writers/callinicos/2014/xx/delusions.html
https://www.marxists.org/history/etol/newspape/isj2/2014/isj2-144/ferguson.html
5) Maoism and China
Mao and the rise of the Chinese Communist Party to power – a collection of short essays by British economist and socialist intellectual Nigel Harris: https://www.marxists.org/history/etol/writers/harris/1976/10-mao/index.htm
The rule of law in China:
Leigh K. Jenco, “Rule by Man” and “Rule by Law” in Early Republican China: Contributions to a Theoretical Debate, The Journal of Asian Studies, Vol. 69, No. 1 (February) 2010: 181–203.
Moritz Rudolf, Xi Jinping Thought on the Rule of Law: New Substance in the Conflict of Systems with China
China and the Rule of Law: A Cautionary Tale
US Institute of Peace, Beijing’s Strategy for Asserting Its “Party Rule by Law” Abroad
Ignazio Castelluci, Rule of law with Chinese Characteristics
China, Labor Rights and the Global Economy:
Two chapters from my book, From “Che” to China: Labor and Authoritarianism in the New Global Economy: Bridging the Divide: An Alternative Approach to International Labor Rights After the Battle of Seattle & The “Race to the Bottom” Returns: China’s Challenge to the International Labor Movement
Reimaging Workers’ Rights in China, Report from China Labour Bulletin, NGO founded by Han Dongfang, a leader of the 1989 revolt centered in Tiananmen Square.
6) Neo-Stalinism and the third world
Neo-Stalinism: case studies of Czechoslovakia and Nicaragua
In the wake of World War II an interesting question arose: namely, would the kind of regime now firmly in place under Stalin in the Soviet Union take hold in other parts of the world? “Stalinism” was such an unexpected and inexplicable form of government that this sparked intense debate and discussion across the political spectrum. We have already been introduced to Arthur Koestler, whose novel Darkness at Noon played a very significant role in this debate. Some have argued that when his book was published in France after the War (selling some 2 million copies!) it had an important effect on persuading French voters to defeat the French Communist Party in elections they were widely expected to win. Nonetheless, “Stalinism” seemed very much to be “on the march,” with new Communist parties gaining sizeable support in eastern Europe and beyond in the west and new “third world.”
In another shock to the west, the Communist party of Cuba played a major role in supporting the 1959 revolution there led by Fidel Castro’s July 26 movement. That event, in turn, was part of a wave of new national liberation movements across the so-called “third world” from the 1950s well into the 1990s. The triumph of the Sandinista Revolution in Nicaragua in 1980 shook the confidence of even the United States, which then spent billions in arms and other aid to defeat a revolutionary movement spreading across Central America and into southern Mexico in the 1980s. This post war rise of what some have called “neo-Stalinism” was a critical part of the Cold War era and continues to influence political developments today in countries like Venezuela, Nicaragua and elsewhere.
To better understand this period we look, then, at the question of whether there is a distinct form of regime that can be called “neo-Stalinism.” The readings include some theoretical material and material about the two case studies, the Czech coup of 1948 and the rise to power of the FSLN in the 1980s. I also included a paper I gave at a conference in Czechoslovakia on labor and democracy in the post-Stalinist period..
Readings:
The Neo-Stalinist Type by Hal Draper (from New International, January 1948.
James Fenwick and Irving Howe – three short essays and book reviews on the new form of Stalinism. (Note that Howe’s review on Bernard Shaw finishes on the last page at the bottom left.)
Triangle of Forces (Hal Draper, New International, April 1948).
Stalinist Road to Power in Czechoslovakia (Ernest Erber, New International, March-April 1948)
Labor and neo-Stalinism in Nicaragua (Diamond)
Killing the patient: shock therapy and labor in eastern Europe (Diamond)
Two Souls of Socialism (Draper)
Czech Coup as a Test of Theory (NI Editors)
7) Neoliberalism
This week we look at “neoliberalism,” which arguably represented a new political order implemented in response to the statist or collectivist era that began with Stalinism, Fascism and the New Deal. Classic accounts suggest that although the idea of a a neoliberal order was under discussion as early as the 1940s (in settings like the Mont Pelerin Society) it did not really take hold until the rise to power in Great Britain of Margaret Thatcher and then in the United States of Ronald Reagan. Both leaders engaged in harsh confrontations with trade unions in order to implement their planned reforms (an echo, if a faint one, of the attack on unions by both Stalinism and the Nazis). In the UK this led to a long strike by the coal miners while in the US Reagan famously fired striking air traffic controllers.
Neo-Liberalism and its Prospects by Milton Friedman (1951) (considered by some to be the founding declaration of this concept)
The essence of neoliberalism by Pierre Bourdieu (1998) (a trenchant critique from a French critical theorist)
Authoritarian neoliberalism and capitalist transformation in Africa: all pain, no gain by Graham Harrison (2019) (A case study of the impact of neoliberal economic policy on the developing world.)
Great Britain has been an important setting in which neoliberalism and its opponents have clashed for decades since the Thatcher era. Here are some contributions from the British left to this debate:
Theorising neoliberalism by Chris Harman (2008)
The neoliberal revolution by Stuart Hall (2011) (a seminal figure on the British left for many decades, Hall is credited with characterizing the Margaret Thatcher era as a reign of “authoritarian populism“)
The neoliberal era in Britain by Neil Davidson (2013)
8) Populist Authoritarianism
Many argue, however, that the neo-liberal order has now collapsed or, at least, begun to fray. Globalization, of course, is, arguably, one consequence of the triumph of neo-liberalism. But is it now under challenge from new forms of authoritarianism? We begin our exploration of that question this week. The major conceptual framework that has emerged to explain new types of political leaders and movements, on the left and right, is “populist authoritarianism.” Our reading for this week, therefore, takes us in a more theoretical direction. This will provide us the foundation to then consider our case studies in subsequent weeks. The five pieces I have posted are engaged in this theme and, to a certain extent, with each other. I would recomend starting with the Muller chapter, What is Populism, and then turn to Inglehart and Norris on Trump & Brexit, and then to the short interview with Mudde. Then you can turn to the more in depth critiques of Gandesha and Kochi who both critique Mudde, Müller and other standard perspectives from a more radical perspective.
9) Case Study: India
(If a URL is not provided the hard copy can be found in the Google drive folder linked above. Several of the readings behind paywalls are to be found there as well.)
This next week and the following we will apply the concepts we have examined to date in country level case studies of, first, India and, second, Brazil. A case study is an effort to examine facts on the ground in a particular situation usually to test a hypothesis or theory about a certain phenomenon.
In the context of India, the rise of Hindu nationalism as represented in the Modi government presents a test of this approach. India is sometimes referred to as “the world’s largest democracy.” Certainly, at a formal level Indian law and government has robust functioning democratic institutions, including a parliament, an independent judiciary and an elected central leadership. Yet, it appears that within those institutions a new hard core nationalist movement built upon a certain view of religion and nationality is slowly if surely turning India into an authoritarian regime.
The readings this week, many of them short so don’t be put off by the long list (!), are a combination of news articles, book reviews, academic work and even a YouTube video of a short talk by our Santa Clara colleague Professor Rohit Chopra) should provide enough factual background to explore this question.
Historical background
From Gandhi to Modi
- India’s BJP is the world’s most important party by Walter Russel Mead (WSJ).
Theory
- Authoritarian developmentalism: The latest stage of neoliberalism? Murat Arsel, Fikret Adaman, Alfredo Saad-Filho
- ‘Strong leaders’, authoritarian populism and Indian developmentalism: The Modi moment in historical context by Subir Sinha
Anti-Muslim developments
- https://www.youtube.com/watch?v=2F13nf-2jA8 (Short YouTube video presentation by Professor Rohit Chopra, Santa Clara University, Department of Communications)
Resistance
- https://www.bbc.com/news/world-asia-india-55213644 (Online only with video)
- https://www.business-humanrights.org/en/latest-news/india-over-250-million-workers-joined-protesting-farmers-in-one-of-the-biggest-nationwide-strikes-ever/ (Online only with links to other useful material)
- https://apnews.com/article/narendra-modi-new-delhi-india-coronavirus-pandemic-3f25e11535359288e461761027fb1b68 (Farmers protest online only)
10) Case Study: Brazil
In our second case study, we turn our attention to our large Latin American neighbor, Brazil. We will look at the authoritarian challenge there with a focus on the environment. Brazil, of course, is home to the Amazon which is a critical source of carbon absorption. Economic pressure has caused dramatic changes to the rainforest. Arguably the right-wing authoritarianism symbolized by the rise of Bolsonaro is the most important factor in this problem. (Bolsonaro is barred from office until 2030 but he and his movement remain a potent political force.) The readings this week explore the complex questions raised in this setting. Thus, we also touch on concerns about the left-wing Brazilian Workers Party, which recently returned to power, and its charismatic leader Luiz Inacio “Lula” da Silva, .
As we did last week I have posted a variety of materials (don’t miss the short video of a much younger Lula putting left wing populism into action) – many of them shorter with some longer theoretical/analytical pieces as well. (Where there is no URL the materials are in the Google drive linked above.)
Bolsonaro and the Amazon
https://www.democracynow.org/2019/8/23/andrew_miller_amazon_fires_jair_bolsonaro
“Jair Bolsonaro still shapes Brazil’s political right,” The Economist
Critical perspectives on environmentalism
“Environmental crises and the ambiguous postneoliberalising of nature” by Ulrich Brand
“Saving the Amazon? Sustainable soy and the new extractivism” by Brenda Baletti
“The market for carbon offsets – insights from US stock exchanges,” by Stephen F. Diamond and Jennifer W. Kuan (background on climate markets)
Background on rise of Bolsonaro, Lula and the Workers Party
“The corruption of democracy: Corruption scandals, class alliances, and political authoritarianism in Brazil” by Alfredo Saad-Filho, Marco Boffo
“A Great Little Man: The Shadow of Jair Bolsonaro” by Jeffery R. Webber
“Lula’s Return” by Andre Singer
“The Workers Party in Brazil” by Emir Sader
How the Brazilian Workers Party Rules Brazil by Passa Palavra Collective
https://www.counterpunch.org/2016/03/18/lula-the-rhetoric-of-the-image-past-and-present/ (A must watch for the clip of a much younger Lula during a major strike in 1979)
Background on modern Brazilian history: From Dictatorship to Democracy to Dictatorship?
https://www.theguardian.com/world/2022/aug/09/brazil-election-bolsonaro-dictatorship-democracy
11) Case Study: Polish Solidarity and the end of the Cold War
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It is a challenge to recreate for a modern audience the enormous impact that the emergence of the Polish social movement known as Solidarity (in Polish, Solidarnosc) had when it first burst upon the world stage in the late summer of 1980. For more than three decades the world had been “frozen” politically, or so we thought, between the two enormous imperial blocs, the west led by the United States, and the east, led by the USSR. A global battle ensued as each bloc fought for international legitimacy, spilling over into the so-called Third World where all too “hot” wars burst out on a regular basis. The last place anyone expected a massive democratic uprising to occur was in the eastern bloc. Earlier uprisings on a smaller scale had occurred in Hungary (1956) and Czechoslovakia (1968), both of which were brutally suppressed by Soviet tanks.
When a strike in August 1980 shook the massive Gdansk shipyards in northern Poland, it was widely feared the Poles would suffer the same result. Instead, a new form of socio-political organization emerged – part trade union, part social movement, part revolutionary organization. Until martial law was imposed in December 1981, the movement transformed life in Poland (one small example: alcohol sales were banned in Gdansk during the strike due to concern that the Communist regime used alcohol to suppress worker activity).
Even under martial law it was clear the regime, and within a few years the entire Soviet bloc, was crumbling. When the Berlin Wall fell in 1989, signaling the end of the Cold War, there was little doubt about the crucial role that the Polish working class played in bringing this long nightmare to an end.
(A personal note: I traveled to Poland for two weeks in the late 1980s and witnessed martial law first hand, including meetings with underground Solidarity activists.)
The readings this week include background material including some academic work as well as videos of key events and figures, a few key historical documents, and some commentary on the economic issues at stake. One focal point is a discussion in several of the contributions on the role of intellectuals and professionals in their relationship to the working class. This was a crucial aspect of the Polish process as evidenced by the role of KOR, a group of dissident intellectuals who advised the movement.
All of the readings are posted in the Google Drive linked above.
Overview
David Ost, The Triumph and Tragedy of Poland’s Solidarity Movement
Interview with David Ost
Videos:
https://youtu.be/peT3-xSzj08?si=PP52zXBKhWaGuZvu (Overview with a Cold War angle)
https://youtu.be/EJJ3nU_dQ5Q?si=IqQi0W_di5ZSrROL (AFL-CIO video)
https://youtu.be/kOjhWuppZNc?si=9pZWCyfuGKMlJJWU (Looking back 30 years later and new authoritarianism)
https://youtu.be/8R6a6WrIjQ0?si=aB3Xjj-xpLkOHqRS (Profile and interview of Anna Walentynowicz, whose firing in August 1980 set off the strike in Gdansk’s “Lenin Shipyard.” Contemporary interviews with activists and others)
Historical context
Marek Edelman and the Struggle for Democracy in Poland
Jerome Karabel, The Origins of Solidarity
Adrzej Wajda’s Hidden History of the Polish Working Class
Key Documents
Open Letter to the Party by Jacek Kuron and Karol Modzelewski
Ost, “I Didn’t Sit Eight and a Half Years in Jail to Build Capitalism” – a profile of Polish dissident Karol Modzelewski
Letter from the Gdansk Prison, Adam Michnik
The economic perspective
Jan Toporowski, How Poland’s Road to Socialism Was Blocked
12) International trade unionism: can it challenge the rise of authoritarianism?
This week we look at the role of trade unionism internationally. Can a push for global labor solidarity counter the rise of authoritarianism? We focus on the debate over labor rights and international trade between the US, Mexico and China. The US and Mexico are both signatories to the US-Mexico-Canada Agreement on trade which is an amended version of the original infamous NAFTA (North American Free Trade Agreement). Of course, there has been significant trade and other exchanges between the US and Mexico for many years. Some say Mexico is cursed: “so far from God, so close to the United States.”
A key focus for us is on Mexico’s labor movement and the impact of trade on its economy. I have provided links to several articles, two short videos and additional material focusing, first on Mexico itself, and then on the trade relationship. NAFTA was originally very controversial because of fears in the US that workers in manufacturing would lose jobs to lower paid workers in Mexico. That led to the imposition of various labor rights provisions that have now, arguably, been strengthened in the new USCMA.
Mexico has been engaged in a slow but clear move away from its more authoritarian era. Elections have been quite heated, and polarization is increasingly apparent. Instead of the “perfect dictatorship” of the PRI (the “Institutional Revolutionary Party”) there are now numerous parties and social movements contesting for power and influence. A left wing populist, Andres Manuel Lopez Obrador (“AMLO”) and now his successor Claudia Sheinbaum, have been in power for several years.
Meanwhile as we know the US and China now have a very important trading relationship as well, although it is increasingly a source of controversy. The US supported China’s entry into the World Trade Organization in 2001 which triggered protests, again, from US labor and others. More recently, as we saw earlier in the semester, China seems to be moving in more statist or authoritarian direction. China now views Mexico as a very important trading partner – China needs its oil, and it uses Mexico as a “trampoline” for trade into the US as the US becomes more wary of China. The material here looks at how the US labor movement has responded to the China relationship as well as at the human and labor rights situation in Xinjiang province, the location of a large Muslim Uighur population.
Labor and Labor Unions in Mexico:
https://webapps.ilo.org/static/english/intserv/working-papers/wp015/index.html (overview of evolution of Mexican labor law)
https://mru.org/courses/mexicos-economy-current-prospects-and-history/labor-unions-and-pri-until-democratization (Short lecture on background of labor and authoritarian political history of modern Mexico)
https://www.youtube.com/watch?v=d_j-6tfBxoU (Video of October 2024 assessment of labor union progress since CUSMA and AMLO (the recent populist left of center President))
https://labornotes.org/blogs/2022/11/mexicos-independent-union-movement-overview-recent-victories-and-challenges-ahead (Historically Mexican unions were consolidated in the CTM and under the PRI’s leadership; new more democratic independent unions have begun to emerge recently.)
https://ir.law.fsu.edu/cgi/viewcontent.cgi?article=1173&context=jtlp (The “maquiladora” sector is the large strip of manufacturing across the border from the US. It is home to hundreds of thousands of industrial jobs. This article examines labor rights in that sector.)
The following interviews and an article examine cross-border solidarity efforts between US and Mexican workers and unions:
https://irle.ucla.edu/2024/02/27/the-strategic-cross-border-alliance/
https://irle.ucla.edu/2024/01/30/a-new-life-for-mexicos-oldest-union/
https://nacla.org/international-solidarity-action-review
Background on the USMCA (formerly known as NAFTA; sometimes called CUSMA):
https://www.dol.gov/agencies/ilab/our-work/trade/labor-rights-usmca
https://aflcio.org/testimonies/mexicos-labor-reform-opportunities-and-challenges-improved-nafta
https://www.thenation.com/article/archive/nafta-usmca-trade-agreement/
https://www.epi.org/blog/why-naftas-2-0-current-labor-provisions-fall-short/
CRS Report: USMCA: Labor Provisions
China
https://en.wikipedia.org/wiki/Uyghur_Human_Rights_Policy_Act#:~:text=The%20Uyghur%20Human%20Rights%20Policy,including%20the%20Xinjiang%20internment%20camps. (Repression of the Uyghurs in western China)
https://nacla.org/nearshoring-and-militarization-us-mexico-border (Link between China and Mexico in wake of new Maoism in China)
https://www.cfr.org/backgrounder/china-xinjiang-uyghurs-muslims-repression-genocide-human-rights
People’s Republic of China, Employment and Labor Rights in Xinjiang
Uyghurs for Sale: ‘Re-education’, forced labour and surveillance beyond Xinjiang
Labor Law Scholarship
Katherine Stone, A New Labor Law for a New World of Work (impact of globalization on labor law)
Philip Alston, Aggressive Unilateralism (critical look at US human rights activism)
Stephen F. Diamond, China and the battle over international labor rights (two book chapters)
Background Material
https://www.ilo.org/international-labour-standards#intro (A link to site that examines international labor standards. The ILO is the oldest entity within the United Nations ecosystem, dating back to the days of the League of Nations, established after WWI due in large part to lobbying by the American labor movement. Many labor rights provisions in trade agreements are modeled on ILO labor standards.)
13) Is law school itself an authoritarian institution?
Our final week asks the provocative question, “Is law school itself an authoritarian institution?” I raise this question for consideration because if we agree that the rule of law must stand against the challenge of authoritarianism that will be all but impossible if law schools themselves inculcate an authoritarian attitude or an authoritarian ideology in the “hearts and minds” of students.
I have assembled several articles and some videos to explore this question. Several perspectives are represented. I start with some humorous clips from perhaps the most famous movie about law school (no, not Legally Blonde!) The Paper Chase. This movie is a pretty accurate characterization of law school culture as it existed well into the 1980’s.
The Paper Chase clips:
https://youtu.be/qx22TyCge7w?si=O9lxQ3nIbx1027wO
https://youtu.be/lE1ImIZpn_w?si=f5A9U3RWr_fIJa-9
The Paper Chase is, not surprisingly, situated at Harvard and that is where the revolution against legal education first emerged in the late 1960’s and early 1970’s. This came in the form of the “Critical Legal Studies” movement led by professors at Harvard, Yale and Wisconsin. CLS was and remains a challenging school to understand but here is one summary description from a sympathetic legal scholar:
“There may be some truth in the statement by Sanford Levinson that CLS is held together not so much by a common analysis, as by a profound disenchantment with ‘liberal legalism’. The ancestor of this principal antagonist of CLS is liberal political theory, which was based on the view that legal rules have objective content. Liberalism, the dominant contemporary Western ideology, is seen as ‘viewing the world in terms of a series of contradictory dualities and values such as reason and desire; freedom and necessity; individualism and altruism; autonomy and community; and subjectivity and objectivity. These contradictory values are reflected in virtually all of our common law and statutory concepts and rights.’ Liberal theorists attempt to obscure the conflict inherent in such dualities and values, in part through law. Thus, CLS analysis is directed towards the exposure of the contradictions in liberal legal philosophy. This focus is rooted in a negative critique of liberal rights. Such rights do not serve the values of self-realization and true equality; instead they serve the interests of the market and bureaucratic institutions that provide the basis for liberalism. Liberal legalism represents the status quo and acts as a mask for exploitation and injustice because of its ‘neutrally benevolent technique’. [citations omitted; emphasis added]
The key CLS figures at Harvard included Duncan Kennedy, Roberto Unger and Morton Horwitz. Initially these scholars focused their critique on the law and legal theory, such as the longstanding “legal realism” school of thought. Horwitz, for example, wrote two excellent books on how 19th century law helped capitalism succeed in the United States.
But Kennedy turned to law school itself in 1983 when he wrote his widely read (at the time) “Legal Education and the Reproduction of Hierarchy,” which I have posted here. This remains a trenchant attack on law school curriculum and methodology that in some ways still persist despite the end of the Kingsfield era portrayed in The Paper Chase.
(While these three faculty earned tenure and are, in fact, still members of the HLS faculty (Kennedy and Horwitz are now emeriti) others were not so lucky – several Yale CLS figures were purged and ended up at other law schools far and wide. While the core CLS movement died out by the 90’s its approach was picked up by other subfields in law, including Critical Race Theory and Critical Feminist Theory.)
While the 90’s and 00’s were relatively quiet intellectually in law school (this period saw the triumph it should be noted of the conservative pro-market “law and economics” school, largely without opposition), we have seen several major conflicts ripple through legal education in the last decade. Harry Arthurs, an eminent Canadian legal scholar, provided a robust critique of the move in legal education to experiential learning and “practice ready” lawyers in a lecture that I link to below. He argues instead for preserving law schools as “knowledge communities” and suggests the reforms others propose are really ways to conform to what large law firms want law schools to do. While the context is Canada this discussion will be very familiar to us in the US context.
Dean Harry Arthurs “The Future of Law School”: https://youtu.be/WsP-CXYmJAM?si=Mol1Xc-7JzxHlhgL
Vicki Jackson, a constitutional law scholar at Harvard, connects Arthurs’ perspective on law schools as “knowledge institutions” to current debates about democracy. Her 2019 lecture delivered while she was serving as President of the American Association of Law Schools, is posted here.
Despite the left liberal aspirations of Arthurs and Jackson, however, criticism of legal education has now arisen again, from both the left and right. I have posted several pieces that give you a feel for these debates. These include:
Samuel Moyn’s “Law Schools Are Bad for Democracy” (a left perspective)
Matthew G. Andersson, How the Modern Law School Promotes Political Division and “Lawfare” (a right perspective)
Other related material includes:
Deans from America’s law schools unveil joint letter in defense of democracy
Law, Betrayed: Identity’s triumph over argument in legal education undermines democracy.
Law schools faced a free speech reckoning in 2022
Helpful and polite comments welcome.