Sunday, September 17, 2017

Democracy Part 40: From Mass Democracy to The "Wisdom of the Crowd"-- Socializing People for Roles in New Data Driven Governance

(Pix © Larry Catá Backer 2017)


I have started thinking through the issues around social credit generally, and the Chinese Social Credit project. I will be working through the issues and practices that are presented by the emergence of Social Credit theory--both in China (as an indigenous and quite complex set of policies, advances on political theory, and operational challenges), and in the rest of the world. To understand the shaping of law today (and soft law as well) one must understand social credit. To understand social credit, one must understand the evolving structures of the relationships, in law and politics, of the relationships between states, its masses, and the institutions through which it operates.

Index of Posts

A social credit system, and its ratings, are grounded in targeted data harvesting, proprietary algorithms, and coordinated incentives and punishments. There may be some glory in worrying about the algorithms that produce the ratings.  Yet algorithms are merely a function of the choices of data to harvest.  And robust harvestable data is likely the most time consuming and expensive part of any data driven system. In this post I consider the way that the data harvesting element of building social credit systems are being socialized within advanced Western liberal democracies.  To that end I consider the effectiveness of modern television programming and especially a new series from CBS, "Wisdom of the Crowd."


Saturday, September 16, 2017

Social Credit in the West: Non-State Rating Systems for CSR Compliance


(Pix © Larry Catá Backer 2017)


I have started thinking through the issues around social credit generally, and the Chinese Social Credit project. I will be working through the issues and practices that are presented by the emergence of Social Credit theory--both in China (as an indigenous and quite complex set of policies, advances on political theory, and operational challenges), and in the rest of the world. To understand the shaping of law today (and soft law as well) one must understand social credit. To understand social credit, one must understand the evolving structures of the relationships, in law and politics, of the relationships between states, its masses, and the institutions through which it operates.

Index of Posts

In China's Social Credit Initiative in a Global Context: Foundations--"Monitoring, Assessment and Reward: Are there Social Credit Systems in the West?" I suggested that Western hand wringing about China's efforts to institutionalize social credit systems within its public and private domains were to some extent surprising in light of the long utilization of rating and incentive systems by public and private institutions--from informal and formal rating systems of universities (e.g., here), to the credit rating of public and private institutions and individuals (here, here, and here).  

This post introduces and very briefly illustrates the ways in which Western versions of social credit--of providing ratings grounded in targeted data harvesting, proprietary algorithms, and coordinated incentives and punishments--has become an important regulatory element in the societal field.


Social Credit (China and Abroad; Public and Private): Index of Posts

(Pix © Larry Catá Backer 2017)



I have started thinking through the issues around social credit generally, and the Chinese Social Credit project. I will be working through the issues and practices that are presented by the emergence of Social Credit theory--both in China (as an indigenous and quite complex set of policies, advances on political theory, and operational challenges), and in the rest of the world. To understand the shaping of law today (and soft law as well) one must understand social credit. To understand social credit, one must understand the evolving structures of the relationships, in law and politics, of the relationships between states, its masses, and the institutions through which it operates.

This post includes an index (chronological) of the Social Credit postings to Law at the End of the Day.

Friday, September 15, 2017

New Paper Posted: "From a “Two Thrust Approach” to a “Two Sword One Thrust Strategy” to Combat Criminal Corruption: Corporate Compliance, Prosecutorial Discretion, and Sovereign Investor Oversight"

(Pix © Larry Catá Backer 2017)


I am happy to report the posting of a new paper, currently titled "From a “Two Thrust Approach” to a “Two Sword One Thrust Strategy” to Combat Criminal Corruption: Corporate Compliance, Prosecutorial Discretion, and Sovereign Investor Oversight."  The paper represents a bit of an experiment.  It seeks to reconsider, in an unconventional way, the possibilities of building policy coherence (1) from among institutions of different jurisdictions and mandates, and (2) at the margins of regulatory governance.  

The specific object is to think through the possibilities of multi-lateral and multi-institutional coherence in the specific context of corruption. To that end I have focused on the ways in which prosecutorial discretion has been institutionalized  in the context of corruption investigations, especially with respect to the ways in which the standards for gauging discretion produce significant incentives to reform corporate governance (and especially the understanding and operation of compliance). suggested the possibility of coordinating  the efforts of prosecutors.  I have also focused on the ways in which sovereign investors have begun to engage in a very similar practice in exercising their discretion to (1) invest in enterprises, (2) and exercise their shareholder power. I suggest that in some states it may be possible to align both trends in rulemaking touching on discretion to the ends of coordinating regulatory governance that manages the scope and conduct of corporate compliance. 

The final version of the paper will be published in Chinese
-->in the Jilin University Journal, social science edition 吉林大学学报社科版 (forthcoming 2017).  The Abstract and introduction (in English) follow below. The paper (in English) may be accessed HERE.


Rogers and Todorov on the 2017 U.K. Criminal Finances Act and the Criminalization of Gross Human Rights Abuses



The U.K. Criminal Finances Act of 2017 received royal assent in April 2017 effective in September 2017. It is described as a "Bill to amend the Proceeds of Crime Act 2002; make provision in connection with terrorist property; create corporate offenses for cases where a person associated with a body corporate or partnership facilitates the commission by another person of a tax evasion offence; and for connected purposes. " (Summary of the Criminal Finances Act 2017).


Of particular interest is Section 13 (the text of which follows below). It amends Proceeds of Crime Act to cover gross human rights abuses which "(a)occurs in a country or territory outside the United Kingdom, (b)constitutes, or is connected with, the commission of a gross human rights abuse or violation (see section 241A), and (c) if it occurred in a part of the United Kingdom, would be an offence triable under the criminal law of that part on indictment only or either on indictment or summarily.  A gross human rights abuse occurs when three conditions are met:
(2)The first condition is that—
(a)the conduct constitutes the torture of a person who has sought—(i)to expose illegal activity carried out by a public official or a person acting in an official capacity, or (ii)to obtain, exercise, defend or promote human rights and fundamental freedoms, or

(b)the conduct otherwise involves the cruel, inhuman or degrading treatment or punishment of such a person.

(3)The second condition is that the conduct is carried out in consequence of that person having sought to do anything falling within subsection (2)(a)(i) or (ii).

(4)The third condition is that the conduct is carried out—
(a)by a public official, or a person acting in an official capacity, in the performance or purported performance of his or her official duties, or

(b)by a person not falling within paragraph (a) at the instigation or with the consent or acquiescence—(i)of a public official, or (ii)of a person acting in an official capacity,--who in instigating the conduct, or in consenting to or acquiescing in it, is acting in the performance or purported performance of his or her official duties.
The consequences for criminal enforcement, as well as for corporate compliance programs may be significant.  As well, the intersection with  the human rights responsibilities of enterprises under the UN Guiding Principles for Business and Human Rights may also be impacted. 

For this those interested, a number of useful commentaries already have been posted.  They provide a good base for understanding the Act and its implications. Richard J. Rogers, a founding partner at Global Diligence LLP, and Sasho Todorov is a rising third year Vanderbilt law student, have produced a multi post commentary. Brief descriptions and the links to their commentary follows. Additional commentary have been posted by Karolos Seeger, Alex ParkerAndrew LeeCeri Chave, and Ed Pearson,  "UK Criminal Finances Act 2017," Program on Corporate Compliance and Enforcement at New York Jniversity School of Law (May 23, 2017).


Wednesday, September 13, 2017

After the News Cycle: The Long Term Economic Effects of Hurricane Irma on Cuba

(Damaged pool chairs are seen in a hotel a day after the passage of Hurricane Irma in Varadero, Cuba September 10, 2017. Picture taken September 10, 2017. REUTERS/Alexandre Meneghini)

Hurricane Irma has come and gone.  And with its passing has gone sustained interest in the aftermath of its occurrence.  But for the communities directly affected, the economic consequences of the hurricane will be felt for a long time.  Some of these effects will be perversely positive--jobs and business opportunities for the hurricane recovery sector.  Some will augment anti-social tendencies among individuals--the scams and frauds that attend tragedies will likely stretch from Texas to Florida. Yet some parts of the affected communities may take a very longtime to recover--or not recover at all.  The aftermath of hurricane Katrina provides a template--the core affected areas remained the same for some social sectors,but for others the storm was radically transformative.  But since we tend to understand phenomena in the aggregate,a net positive recovery generally tends to mask the sometimes large negative effects among sub-portions of this aggregate.  

But what happens when these fairly well known effects consumes an entire nation rather than a smaller region within a much larger national state? The answer can begin to be understood by examining the after effects of Hurricane Irma on Cuba.  It is true enough that Cuba tends to be well prepared for the relatively frequent occurrence. But the ability to mitigate anticipated damage does not avoid its effects,both singular and (with the frequency of storms increasing in the recent past) cumulatively. 

Recent reporting by Marc Frank and Sarah Marsh ("Hurricane Irma batters already struggling Cuban economy," Reuters (12 Sept. 2017)) suggest that the effects of Irma on Cuba will be substantial in the short and medium term.  Drawing on analysis of Pavel Vidal, now a professor at Universidad Javeriana Cali in Colombia, and Omar Everleny, both formerly with the University of Havana, the report suggests that there will be areas of positive and negative effect from the hurricane (for example, while the storm reversed some of the effects of a prolonged drought, it also destroyed crops). The bigger question revolves around the effect of the storm on the political calculations of the state and on the forward pace of economic reform.  Those questions remain unanswered for the most part.  Also interesting will be the effect of the storms in the short term on the relationship between the Island and the Cuban diaspora in Miami.  Lastly,the effects on U.S.-Cuba normalizaiton negotiating positions remains a mystery.

The report follows.  Further reporting, especially with respect to the economic effects on Cuba's key economic sectors can be found at Marc Frank, "Irma lays waste to Cuba’s dreams of prosperity," Financial Times 14 Sept. 2017 ("“Irma will have a big impact on the economy this year and this could make difficult the growth the government hoped for,” said Omar Everleny, a Cuban economist. Mr Everleny, who was fired last year from Havana University for strenuously advocating reform, said the state should get off the backs of farmers, open up the private sector further and start signing long stalled foreign investment projects." Ibid.).

Monday, September 11, 2017

Ruminations 75: Reflections on 11 September 16 Years After--Flight, Symbols, Rituals, and War





It has been a long time, judged by the pace of political cycles, since the occurrence of that defining act of modern warfare occurred on September 11, 2001 in Washington, D.C: and New York City. The aftermath is well known, though hardly well understood. And the events have produced all sorts of actions and reactions, most of the consequences or agendas of which have yet to be fully realized. But the day is also one of necessary solemnity--to honor the dead, and to mourn.  

This post provides brief reflections on the objects and forms of our mourning even as the events of 11 September 2001 increases the pace with which it recedes into history.


Saturday, September 09, 2017

Ruminations 74/Democracy 39: Elections and Opposition in Cuba--Opposition Within Leninist Governance Orders


(Members of the local electoral commission speak during the nominations of candidates for municipal assemblies in a neighbourhood of Havana, Cuba, September 4, 2017. REUTERS/Alexandre Meneghini)

A state whose leadership is fractured and whose binding ideology is contested tends to open sometimes large spaces within which dissident elements may draw power from popular discontent.  One most recently saw the effect of leadership fracture in the United States that produced the election of Donald Trump from out of the opening made possible by the long standing internecine warfare among American political elites whose decadent self absorption left a power vacuum to be filled by those with the will and vision to take advantage of political opportunity.  That, in a sense, is the way the American Republic was perhaps meant to operate.  And those openings evidence the Republic's structural self cleaning systems--a space for transformative political action that permits the sweeping away of leadership forces whose authority has withered or become an obstacle to the desires of the polity, without destroying the governance structures of the Republic.  This has happened periodically in the United States in the last century approximately a generation apart--the 1930s, the 1970s-1980s, and now. This observation implies no judgement, just an assessment of the fluidity of power and the necessity of cultivation of mass opinion if one means to control the narratives of societal expectations and politics.

But the Cuban Marxist Leninist Republic has no similar built in mechanism for accountability. Where such transformations produce mostly irritation and a desire to reinvigorate of the losing factions'  leadership in the United States, in Leninist states it can produce only a direct challenge to the leadership authority of the vanguard party and an inherent criticism that the vanguard party has failed in its leadership responsibilities. That direct threat can either produce internal rectification (an internal dialogue and transformation of the vanguard party's working style) and external response (engaging in the development of productive forces that aid the people first and the party second); or it can produce mere suppression (no change in party working style and punishment of individuals putting forward mass sentiment). Rectification and response suggests a strong and vigorous vanguard; mere suppression suggests weakness. Chinese Leninism has tended to move toward the former by reinvigorating its Mass Line, though not without substantial challenges (e.g., here). The European Leninism of much of the CCP apparatus has yet to evidence an ideologically coherent approach to the challenge posed to party building and leadership within the context of either class struggle (the European approach) or socialist modernization (the Chinese approach). 

Recent reporting from Cuba suggests that its Leninist vanguard is at this moment faced with the challenge of its need to more vigorously fulfill its responsibility to the nation.  Marc Frank, Cuban Dissidents in electoral challenge as Castro era nears end (Reuters 7 Sept. 2017). Mr. Frank reports on the way in which mass action has begun to develop its own popular expression in the face of what it sees as an increasingly remote Leninist party apparatus.  That should serve as a signal to the vanguard, and trigger substantial reform--especially at the local level. That it may not will continue a process of demolishing rather than building party leadership, one which temporary suppression will not reverse.  That, I think, is the point and warning of the reporting.

Which way it will choose--internal rectification, external response or mere suppression, remains to be seen. A Leninist party would choose the former if it means to develop and survive. A Leninist party that has not learned the lessons of transformation necessary to move from a revolutionary organization to a party in power (e.g., here) could without much thought choose the second.

Thursday, September 07, 2017

Reflections on "Report on the 2016 UN Forum on Business and Human Rights," Statement of Beatriz Balbin Chief, UNOHCHR Special Procedures Branch Office



As the international business and human rights communities gear up for the 6th UN Forum on Business and Human Rights, it might be useful to pause and consider what, exactly, the Forum organizers themselves thought about the event.  This is particularly useful as a reminder that perspective drives meaning and that the perspective of the Forum organizers and those they represent tend to have a greater influence on the shaping of the "realities" of the UN's efforts around the UN Guiding Principles for Business and Human Rights, than any other stakeholder. (Contrast my own reflections here).

To that end it might be useful to reflect on the Statement by Beatriz Balbin, Chief, Special Procedures Branch, Office of the United Nations High Commissioner for Human Rights, made to the 35th session of the Human Rights Council Geneva (16 June 2017) entitled Report on the 2016 UN Forum on Business and Human Rights. It provides a short and focused distillation of the "learning" extracted from the Forum and points to the both the premises and perceptions that guide what for many are perceived as thought leaders. (The 2016 Forum chairperson's summary report can be downloaded here).  In that context and in the sprint of transparency my own guiding principle on engagement:
So-called thought leaders--those powerful stakeholders represented in the state, civil society, business and academic sectors--play an important de facto role in shaping the discourse and moving it forward along the logic of their respective agendas. These discourses and agendas are also shaped to some extent by the consequences of their interactions and clashes. Global society is vitally interested in what they have to say, how they have to say it, how they mean to prioritize and implement, how they choose to shape conceptualization, and where their interests clash.  At the same time, a fixation on the desires of the mighty will tend to increase the distance and construct the hierarchies, that separate those with such influence (and eventually authority) from those who do not.  Yet human rights space ought to be democratic space.  And the highest and mightiest, like the most humble, ought to cultivate the arts of listening as well as that of leading--together. (here).

The Report on the 2016 UN Forum on Business and Human Rights and my own brief reflections follow.

The Upcoming 2017 (6th) UN Forum for Business and Human Rights: Preliminary Information and Concept Note



The 6th U.N. Forum for Business and Human Rights will be taking place this coming November in Geneva.  Like its predecessors, it promises to bring together thousands of interested stakeholders (to the extent they can afford the time and have the resources).   It occurs a month after the 3rd Session of the Intergovernmental Working Group meeting the purpose of which is to consider concrete approaches to the elaboration of a comprehensive treaty on business and human rights (here). 
The UN Forum is the world's largest annual gathering on business and human rights with more than 2,000 participants from government, business, community groups and civil society, law firms, investor organisations, UN bodies, national human rights institutions, trade unions, academia and the media.

Over three days, participants take part in 60+ panel discussions on topics that relate to the Guiding Principles on Business and Human Rights (the "Protect", "Respect" and "Remedy" Framework), as well as current business-related human rights issues.

The Forum is the foremost event to network, share experiences and learn about the many initiatives to promote corporate respect for human rights.

The UN Human Rights Council, under paragraph 12 of its resolution 17/4, established the Forum to serve as a key global platform for stakeholders to ”discuss trends and challenges in the implementation of the Guiding Principles and promote dialogue and cooperation on issues linked to business and human rights.” It is guided by the Working Group on Business and Human Rights.

We are all looking forward to an interesting and informative event.  This post includes program information and the Concept Note prepared by the Working Group that suggests the substantive framework of the 2017 program.