Larry Catá Backer, “The Semiotics of Consent and The American Law Institute’s Reform of the Model Penal Code’s Sexual Assault Provisions,” 1(1) (2021) Undecidables and Law: The Coimbra Journal for Legal Studies 49-83. Access HERE
Abstract: The concept of consent is ubiquitous in the West. It is the foundation of its construction of meaning for sovereignty (and political legitimacy), and for personal autonomy (and human dignity). Ubiquity, however, has come with a price. The making of a transposable meaning for consent that bridges political community and interpersonal relations has drawn sharply into focus the malleability of the concept, and its utility for masking a power of politics behind an orthodoxy of meaning that is both politically correct, and at the same time its own inversion. This short essay on the semiotics of “consent” considers the manifestation of the concept as object, as symbol, and as a cluster of political interpretation that itself contains within it the Janus-faced morality of political correctness. It takes as its starting and end point the idea that free consent is the product of a process of management that reduces consent to the sum of status and authority over the thing assented. The exploration is framed around the recent arguments in the American Law Institute’s Model Penal Code Project around the meaning of consent in sexual relations. The essay first situates the problematique of consent—as action and object that incarnates power relations and the boundaries of the taboo. It then illustrates the way that semiotic meaning making produces a political correctness that produces paradox by critically chronicling the meaning of consent respecting sexual intimacy in criminal law. It enhances sexual liberation by placing it within a cage of limitations that ultimately transfers the power over consent form the individual to the state. That produces a perversity, and the illusion of free will which appears now only to be exercised by or with leave of the state. That meaning making suggests the way that consent as an act, and as a state of being, is transposed to the broader context of political economic relations.
Larry Catá Backer, “The Problem of the Enterprise and the Enterprise of Law: Multinational Enterprises as Polycentric Transnational Regulatory Space,” Peer Zumbasen (ed) The Oxford Handbook of Transnational Law (OUP, 2021)
DOI: 10.1093/oxfordhb/9780197547410.013.35 . Access HERE.
Abstract: In the multinational enterprise (MNE) one encounters entity, connections, and linkages, and functionally differentiated production chains. Each aspect of the MNE is partially and simultaneously subject to layers of regulatory governance. This chapter explores the effects of these regulatory interventions on shifting constructions of the MNE. To that effect it examines first the relationship between emerging transnational law and an objectified MNE. It then considers the way that the focus and context of transnational law shifts as the regulatory focus moves from MNE as object to the MNE as a set of linkages and connections, and then to the regulation of production through which is itself the object of MNE function. This reconsideration of the character of the MNE produces a substantial effect on the way in which transnational law is understood and applied, matching polycentricity in the construction of law with polycentricity in the construction of the MNE itself.
Larry Catá Backer and Rafael Velázquez Pérez, “The EU to the Rescue of the Cuban Economy? The Political Dialogue and Cooperation Agreement (PDCA) and the State of Cuba-EU Economic Relations,” 21 (2021) Cuba in Transition: Proceedings of the Annual Meeting of the Association for the Study of the Cuban Economy 70-88. Access HERE.
Abstract: The Political Dialogue and Cooperation Agreement (PDCA) between the E.U. and Cuba was an important change in the way that the E.U. sought to engage with developing states. PDCA remains an important milestone for European foreign policy. It has become the template for European engagement with states and a means of projecting European values (either in the form of capacity building or continuous dialogue through trade and structural elements) in trade. Its importance was underlined by the late 2020 negotiations of a similar pact, a “Comprehensive Agreement on Investment,” with the People’s Republic of China. It makes sense, then, to consider the form and substance of Cuba-EU trade through the lens of the PDCA, and that is the object of this paper. The paper is divided into two parts, the first examines the PDCA in detail. In that context it seeks to extract the core bargain the Europe has been willing to strike as the foundation of its trade relationships with states the conduct of which are incompatible with European values and its human rights law. Part 3 then examines the state of trade relations through 2020, and in the shadow of the global pandemic. What appears here is that despite the transformation of driving trade principles, the state of actual trade and investment remains little affected. But that is not what PDCA appears to have bought the E.U. Rather, PDCA is an important element in the project of international normative legalization, that is in the construction of a distinct “common position” grounded in the narratives of the foundational normative principles of liberal democracy, markets and human rights.