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4B: Law, Economics and Development: International Perspectives  


From Utopianism to Pragmatism: The Lessons of Cooperative Land Trust Experimentation


Jedidiah Kroncke Professor of Law FGV Sao Paulo School of Law jedidiah.kroncke@fgv.br

The often-contested historical interaction between notions of economic and political democracy has led to repeated attempts to create institutional arrangements for work and residence outside of mainstream regulatory forms. While often held out internationally as the leading normative proponent of individual property rights and privatization, the United States has the highest global level of cooperatively held land, and corporations, of any industrialized nation. The current revival of interest in “shared economics” or the “law of the commons” appropriates some of the communitarian ideals of the republican ideologies of past American social movements while addressing novel aspects of modern society.

One consistent challenge of such alternative forms in land holding has been that of replicability. While individual experiments have shown some durability, they have not been able to provide a clear and easily accessible precedent for opting-out for large segments of the American population—equally true internationally in the struggle to create alternative forms of “development.” Some state-sponsored trusts, such as the Champlain Housing Trust in Vermont, have been able to operate partially outside of market values, but many communitarians explicitly reject dependence or engagement with the state in preference for independent local governance.

This paper will examine the issue of replication and sustainability in creating institutional arrangements to re-communalize inter-generational land-holding in comparative context. The challenges recurrent in these arrangements emergent from within primarily individualized property rights regimes replicates the traditional challenges of collective land holding, from non-profit mutual benefit corporations to contemporary community land trusts. While many citizens possessing communitarian norms express an aversion to formal legality, they have to face the modern reality that all landholding requires a legal entity to hold title recognized by the relevant state legal system.

Some attempts have been made to establish “best practices” for communally held land, all of which deal with the governance challenge of actuating whatever communitarian norms are considered important to the residents, maintaining these commitments over time, and allocating resources within the group’s as needs change over time. The structure of this internal governance—including the composition/selection of trustees (for common law trusts), subjects requiring unanimous decision-making, and entry/exit equity processes— ultimately drive the success of such arrangements, especially at the inter-generational level.

The answer generally given to such challenges by communitarian groups is that state law can not, and should not, attempt to solve such issues. The shared ideology of the group is instead the guarantor of such commitments, and explicit reference is commonly made to forms of tribal governance by indigenous communities.

Yet, the social customs and mores that undergird traditional forms of communal land tenure were/are holistically integrated into the non-legal aspects of extant multi-generational cultural traditions. Legal anthropology has long struggled to divine the diffuse line between “custom” and “law” exactly because the Weberian ideal type of a formal legal rationality separate from substantive social norms is a recent social invention. The failure of land titling projects following the theories of Hernando de Soto have further shown how attempts to insert state-legible individual property rights into informal land regimes can destabilize larger social ecosystems. For modern intentional communities, energy is invested to recreate some of these supportive cultural dynamics, but none can run as deep as those in pre-modern societies. While extant institutional forms, such as trusts, provide some room for incorporating standards-based decision-making, a single legal entity still cannot fully formalize the whole panoply of informal social norms that sustained traditional communal land-holding.

Herein, this paper will argue that what is needed for communitarian land holding mechanisms is something that moves against the hyper-localism of many of its aspirants— networked regulation. A specific third-party institution is needed if such landholding patterns are to endure external and internal governance challenges. Such an institution could also provide the type of network effects required for greater replication by reducing formation costs and providing a more durable longitudinal commitment to specific ideals with greater transparency and regulatory visibility.

Some attempts to create these networking institutions exist in the realm of economic cooperatives—though still plagued by bias for idiosyncratic formation—and in mutual insurance schemes for communal land holders in common law countries. Of particular interest is the German Mietshäuser Syndikat, a not-for-profit association formed by communal land organizations which is provided an equal vote in a generalized LLC structure adopted by joining member groups. Further research will be carried out to find out if similar types of network coordination devices have been undertaken to support communal land durability and replication in comparable contexts.


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Precaution over GMO corn in México: law between Cortes’s salvation and Quetzalcoatl preservation


Ernesto Hernandez-Lopez Professor of Law Fowler School of Law, Chapman University ehernand@chapman.edu


Abstract:

This paper examines litigation over issuing commercial permits for planting GMO corn in Mexico. The Mexican government has been enjoined from granting these permits, since a court issued a preliminary injunction in September of 2013. In this case, the Colectividad del Maíz (a class comprised of campesino, human rights, artist, and academic organizations) sued the federal agriculture and environmental agencies and bio-technology companies Monsanto, Dow, Pioneer-Dupont, and Syngenta. The case has attracted global attention since Mexico is the birthplace of corn and offers the greatest diversity of landraces and heirloom varieties in the world.

Critics of GMO corn worry that commercial permits will contaminate this diversity and irreversibly alter their unique traits. Non-GMO corn is valued as a resource to combat drought, climate changes, pests, and disease. Moreover, GMO corn requires single-use seeds, monocultures, and the intensive use of chemical herbicides, like glyphosate. The Colectividad del Maíz case forces courts to look at precautionary principles, enshrined in Mexico’s GMO biosecurity law (LBGOM) and the Cartagena Protocol. Economics motivate policymakers to favor commercial GMO corn, since Mexico is not self-sufficient in corn and is one of the world’s largest consumers of corn. Seed companies look to Mexico’s NAFTA and WTO obligations to evade any limitations placed on GMO corn by Mexico. As this moves to trial, it is expected that the Supreme Court of Mexico will eventually analyze risk assessment procedures, center of origin and diversity maps, and scientific consensus on GMO corn and its inputs.

This paper places this dispute within a larger historical contest in Mexico between foreign powers and national control. This debate invariably mixes ideology and material expectatations, since colonial Christian salvation and the search for silver, liberalism and the lure of oil and markets, and bio-technology and the promise of increased corn production. When Spanish empire landed in Mexico the figures of the conquistador Hernan Cortes and Aztec god Quetzalcoatl framed this encounter, with Spanish empire capitalizing on a Mexican expectation for Quetzalcoatl, the plummed serpent. Currently, the GMO dispute illustrates how law (in the form of intellectual property, corporate organization, international trade, and “scientific evidence”) protects bio-engineering firms implicating rural livelihoods, food production, and genetic diversity. For this, GMO’s purported salvation capitalizes on narratives of increased corn production and addressing hunger.

 

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Structures of Resistance/Control and "Declassifying" the War on Terror

 

Cyra Akila Choudhury
Professor of Law
Florida International University College of Law

This presentation will explore some aspects of the role of TWAIL scholarship in the U.S. Legal Academy in the decades following the initiation of the Global War on Terror (GWoT). Specifically, it will critique the lack of class analysis in the TWAIL scholarship on the WoT and its overreliance on historical understandings of imperialism. I argue that without including class in the analysis, TWAIL scholars' critiques of the WoT and U.S. imperialism that regulates and pursues both U.S. citizens and Muslims across the globe, misses some critical elements of the legal and political structures that perform these functions with the aid of the postcolonial state. 

 

The presentation will proceed in three parts. First, I map the theoretical gap in TWAIL scholarship to demonstrate that historical conceptions of imperialism derived from the colonial encounter prevails in explanations of and resistance to the ever-expanding GWoT. This understanding of the geopolitics of the GWoT relies on traditional notions of law and politics at the international level. Such an understanding pits Third World states against the Global North and assumes the former are in a posture of resistance to the latter. Further, it assumes that international law is used strategically in these encounters to enact that resistance.

 

The second part of the presentation will elaborate the main argument that TWAIL scholars and national security scholars in general have failed to take into account the operation of class.This results in a failure to appreciate the linkages among global elites across national borders in managing troubling populations. Without inclusion of class, theories that seek to frame the GWoT as an imperialism—that is an attempt to dominate weaker third world states in the international arena—fails to appreciate the stake that elites across borders have in managing impoverished populations. TWAIL scholarship can then be charged with alibiing the third world, postcolonial state as it represses its own people using the discursive and structural tools of national security and the GWoT. For example, in the past sixteen years, postcolonial states have enacted a raft of national security laws that mimic those the United States. They have used the discourse of national security to put down all kinds of resistance from separatist revolts, labor resistance, to resistance to development induced displacement. Indeed, the tools of national security and the GWoT have underwritten a serious and sustained neoliberalization of the Third World acceded tonot resisted by Third World elites.

 

The last part of the presentation seeks to suggest how TWAIL can reorient itself to centralize a class critique. Some work has been done in this regard and the presentation will explore that scholarship and suggest new avenues to be pursued.