Postapartheid Justice: Can Cosmopolitanism and Nation‐Building Be Reconciled?

South African plaintiffs are suing numerous multinational corporations under the American Alien Tort Claims Act for aiding and abetting apartheid's crimes against humanity. This article argues that Re South African Apartheid Litigation should be understood as a cosmopolitan re-membering of the nation. This interpretation runs counter to theoretical and political presumptions of an inherent antagonism between cosmopolitanism and nationhood. The apparent divide between cosmopolitanism and nation-building is bridged by the concept of victimhood. Insofar as nation-building in South Africa depends upon the restoration of victims, so too is cosmopolitanism victim-centered in its commitment to prevent harm and suffering. The apartheid litigants enact the duality of cosmopolitanism: they press for justice on the basis of cosmopolitan right, yet they do so in part because of their continued marginalization in the "new" South Africa with respect to issues of "truth" and reparation. Following on the "unfinished business" of the South African Truth and Reconciliation Commission, the apartheid litigation illustrates the intersection of cosmopolitanism with national memory and belonging.     

合理期待原则下的美国股东权益救济制度及其启示

正视封闭公司股东所面临的不同于公众公司的现实，美国公司法律实践日益信赖股东合理期待，常常以小股东权益为中心来界定压制行为，创设和发展了以股东合理期待为基础的股东权益救济制度，并逐渐形成了较为成熟的合理期待认定标准，尽可能地为受到不公平待遇的股东提供广泛的救济，以有效地保护受侵害股东的权益。基于合理期待落空而对股东权益进行救济的美国公司法理念与法律实践值得我们借鉴以完善我国股东权益救济制度。     

Industry structure and organizational deviance: Multinational corporations and questionable foreign payments

Questionable foreign payments (QFPs) by multinational corporations (MNCs) are examined in the context of world industry structures. Corporate claims and existing theory view QFPs as a function of extortive corporate-governmental relations. There are three industry conditions cited which make extortion possible: competitive pressure, foreign dependence and governmental leverage. Top U.S.-based MNCs (N=197) which have and have not made QFPs are compared on indicators of world industry structure to test for these conditions. Findings show that corporations making QFPs are more heavily involved in foreign economies, but are less susceptible to competitive pressure and no more subject to governmental leverage than nonpaying corporations. Specifically, paying corporations are likely to be leading corporations in fairly concentrated, U.S. dominated, and high-technology markets. Paying corporations, then, are in better positions to control their environments than nonpaying corporations. We conclude that changes in world industry structures beginning in the 1960s have increased the likelihood of QFPs, especially for U.S. MNCs in high-tech industries.A previous version of this paper was presented at the annual meeting of the Southern Sociological Society in Memphis, Tennessee, April, 1981, under the title, A Comparative Study of Multinational Corporations Making Questionable Foreign Payments. We would like to thank David Ermann, David Rudy and an anonymous reviewer for their helpful comments in revising this article.     

WTO规则下跨国公司行为规制方式分析

主权国家与跨国公司是影响当今社会的两大力量,其权力行使互为消长。WTO在为其成员国家设定义务、限制其管理权的同时,却没有对跨国公司的行为进行规制。国际社会一直在寻求对跨国公司行为进行统一的法律调整,但由于各国利益上的差异,在短期内很难出现具有约束力的国际统一立法。跨国公司行为的规制基本上依靠国内法进行。但由于东道国政府行为是受到WTO规则的限制的,因而,其权力的行使只能是在法定的框架下进行并受到严格的约束,东道国对跨国公司行为的管制方式需要从硬性的限制转向刚柔相济,更具有弹性的方式上来。     

The new global network of corporate power and the decline of national self-determination

The cold war years witnessed the steady deterioration of America's machine tool base and the start of the migration of U.S. production into Third World countries. Not merely America but also the very core of Western production was and still is going global. Quite recently a new development appears, namely, public and private sector corporations from once peripheral and semi-peripheral areas moving assembly plant production into North America and parts of Europe, and some of them have already purchased a number of American corporations which had not gone global. As the old center deteriorates, the once peripheral and semi-peripheral enterprises close in on it forming the present global corporate network — one which locks all national economies into the global economy and increasingly renders nations powerless to control their own socioeconomic destiny. In a very real sense, with the possible exception of nations that control giant public sector multinational firms, all nations are becoming peripheral, but peripheral to the new supranational network of corporate power. These complex processes which followed unerringly from corporate delinquencies of the cold war mean that the mainstream theories of global development as enunciated by Andre Gundar Frank, Samir Amin and Immanuel Wallerstein, for example, require overhauling. This paper expands this thesis and offers an alternative to contemporary global development theories.     

MINORITY THREAT AND POLICE STRENGTH FROM 1980 TO 2000: A FIXED‐EFFECTS ANALYSIS OF NONLINEAR AND INTERACTIVE EFFECTS IN LARGE U.S. CITIES*

Many studies have assessed threat theory by investigating the relationships between the size of minority populations and police strength. Yet these investigations analyzed older data with cross‐sectional designs. This study uses a fixed‐effects panel design to detect nonlinear and interactive relationships between minority presence and the per capita number of police in large U.S. cities in the last three census years. The findings show that the relationship between racial threat and the population‐corrected number of police officers has recently become considerably stronger. In accord with theoretically based expectations, tests for interactions show that segregated cities with larger African American populations have smaller departments. The coefficients on another interaction effect suggest that racial segregation leads to reductions in police strength in the South perhaps because officers are less likely to intervene in residentially isolated black neighborhoods in this region.     

Between Self-Regulation and the Alien Tort Claims Act: On the Contested Concept of Corporate Social Responsibility

Using Alien Tort Claims Act suits against multinational corporations as an immediate context for discussion, this article explores the emerging field of corporate social responsibility. The article argues for an understanding of concrete legal struggles as part of broader competing strategies for regulating corporate obligations to a multitude of stakeholders. By identifying and analyzing the positions of concrete actors who operate in the field, the main thesis of this article is that the field strongly tilts in the direction of voluntary and self-reliant models of corporate responsibility. The article identifies this process as consistent with the privatization of regulative structures in general and with extant modeling of corporate governance in particular, and points at the correlation between these trends and the interests of multinational corporations.     

论法人的基本权利主体地位

美国宪法并没有规定公司是基本权利主体,美国联邦最高法院在很多判例中亦认定美国宪法的特权与豁免条款不适用于公司。宪法第14修正案通过后,尤其是自19世纪80年代以来,美国联邦最高法院逐渐将宪法的保护扩大适用于公司,使得公司成为某些宪法基本权利的主体。这一转变迎合了美国经济发展的需要,使得国内统一大市场的建立成为可能。本文借鉴美国的宪法实践,细致梳理了公司作为基本权利主体的相关理论。     

美国企业犯罪的审前转处协议研究

美国针对企业犯罪建立了特殊的审前转处程序,办案检察官可以与涉罪企业签署暂缓起诉协议和不起诉协议,如果企业能够在考察期限内完成协议下的义务,则不会被审判和定罪。在美国经济危机时期,该制度较好地为企业的生存和社会公共利益的维护提供了保障。该制度以美国司法部内部的政策性文件为依据,赋予了办案检察官较大的自由裁量权,法院基本无权干预。美国理论界的争论主要围绕三对冲突关系:社会公共利益维护与企业“大到不用判刑”特权的冲突、检察官的转处裁量权与程序正义的冲突、司法部内部行为与立法/司法管辖权的冲突。在我国面临企业犯罪处理困境的当下,该制度及其相关理论能够为我国“司法行政部门帮扶企业”政策的践行提供经验借鉴。     

现行跨国公司之法律管制缺陷评析

跨国公司是全球化的动力,同时也是全球化时代各种矛盾的聚焦点。组成跨国公司的各实体在经济上的一体性与法律上的独立性之间的矛盾,使得有效管制跨国公司成为世界性的难题。恰当地进行法律设计的一个重要前提是,对现行跨国公司法律管制机制的缺陷进行科学的分析,从而寻找克服缺陷的方法,探索新型跨国公司法律管制的模式——全球管制治理机制。     

Age estimation from sternal ends of ribs by phase analysis in South African Blacks

The sternal ends of ribs are used in age determination of unknown adult remains. Standards for American populations have been described and tested. The method described by I?can et al. is reviewed and compared with other age markers of the human skeleton. Three hundred and thirty-nine (265 male, 74 female) sternal ends of right fourth ribs, belonging to black individuals deceased in the Gauteng Province of South Africa, were collected during 1994, 1995, and 1996. Three South African investigators applied the existing method and found the repeatability among them acceptable, although the method was less accurate to predict age in this population. New phases with adjusted criteria and age ranges were developed specifically for the South African black population. A tendency toward delayed maturation was found, as well as a diversion of the appearance of female ribs perimenopausally. Future studies involving more individuals in the older age ranges, and females of all ages, could broaden the representativeness of these phases.     

Redefining Corporate Social Responsibility in an Era of Globalization and Regulatory Hardening

Globalization and the growth of multinational enterprises (MNEs) have been accompanied by an increasing call for corporations to take responsibility for their environmental and social impacts, and for greater corporate disclosure and transparency with regard to nonfinancial risks (collectively known as corporate social responsibility or CSR). At the same time, governments have increasingly turned to mandatory obligations for formerly voluntary CSR engagement, a trend we call the legalization of CSR. This article analyzes the “hardening” and legalization of CSR, and considers what this process tells us about norms and assumptions regarding the social responsibility of firms in the United States and around the world. Through our analysis of corporate trends, regulations, and case law from the United States, European Union, China, and India, we argue that the process of legalization and redefinition of CSR through a shareholder primacy lens may, troublingly, undermine the very notion of CSR. In the face of these trends, this article concludes with a redefinition of CSR that includes an express commitment to corporations’ social and ethical responsibility to society.     

Red state, blue state, flu state: media self-selection and partisan gaps in Swine flu vaccinations

This study assesses the relationship between political partisanship and attitudes and behavior with respect to the H1N1 virus (swine flu) crisis of 2009 in general, and the U.S. mass vaccination program in particular. I argue that even seemingly nonpartisan political issues like public health are increasingly characterized by partisan polarization in public attitudes and that such polarization is attributable, at least partly, to the breakdown of the information commons that characterized the U.S. mass media from roughly the 1950s until the early 1990s. In its place has arisen an increasingly fragmented and niche-oriented media marketplace in which individuals are better able to limit their information exposure to attitudes and opinions that reinforce, rather than challenge, their preexisting beliefs. I test my argument against a variety of data sources, including opinion surveys and state-level swine flu vaccination rate data.     

Application of Fordisc 3.0 to Explore Differences Among Crania of North American and South African Blacks and Whites,

Using discriminant function analysis, classification accuracies for ancestry and sex in white and black South Africans were compared using North American (FDB), African groups in Howells (HDB), and South African (SADB) databases in FORDISC 3.0. (FD3). Twenty‐four standard linear measures were collected from a total of 86 black and 101 white crania obtained from the Pretoria Bone Collection. White and black South Africans classified 73% correctly in FDB, 55% correctly in HDB, and 71% correctly in SADB. The percentage of atypical cases was higher with FDB than SADB. In all three databases, misclassification occurred more with sex than ancestry revealing differences in sexual dimorphism between population groups. Broad ancestral differences may explain low misclassification rates for ancestry. FD3, with a modern South African reference sample, can assist South African anthropologists to standardize methodology and to justify procedures for estimating ancestry.     

The revival of the Honourable Merchant? Analysing private forest governance at firm level

In the context of global climate governance, multinational corporations (MNCs) are increasingly seen as financial, technical and political partners. Looking at MNCs with core business activities linked to deforestation, this article analyses private governance activities focused on sustainability that occur at firm level. These activities include newly enacted, concrete policies and activities aimed at climate protection, such as the concept of carbon insetting. The current body of the literature on global governance focuses largely on collective action, with activities at firm level still under-researched and under-conceptualized. To better understand (a) what drives MNCs to undertake such activities and (b) why their performance differs both within and between industry sectors, three motives are proposed—preventing reputational damage, building resilience and assuming ethical responsibility—with the latter indicating a revival of the Honourable Merchant, an economic role model created in the early 16th century. The empirical analysis is, therefore, embedded in a theoretical framework that seeks to capture the complexity of corporate rationality.     

The production of the "battered immigrant" in public policy and domestic violence advocacy

In the context of U.S. public policy, battered immigrant signifies a person who is eligible to adjust his or her status under immigration law if he or she can demonstrate they have suffered domestic violence in the United States perpetrated by a U.S. citizen or legal permanent resident. Among community organizers, the term battered immigrant signifies a broader range of people for whom legal immigration status plays a role in their options for safety planning and/or leaving an abuser, the potential threat of deportation, and the eligibility for public benefits. Based on an ethnographic study of domestic violence advocacy with South Asian immigrants in Seattle and around the United States, this article examines how the difference in signification has direct social and political consequences with regard to who may access the benefits and protection offered to victims of domestic violence in the United States.     

Law in South Africa and the Legitimacy Crisis

South Africa is presently confronting the possibility of a fundamental change in its political structure. In this context it is useful to consider the special character of the South African legal system and its role in the on-going legitimacy crisis in that country. This article attempts to delineate some of the principal dimensions of law and the types of legitimation issues in South Africa. It suggests that students of law and criminal justice have much to learn from the study of the South African case.     

Further evidence to show population specificity of discriminant function equations for sex determination using the talus of South African blacks

Several studies have shown that osteometric differences exist between different population groups. Thus, discriminant function equations derived for the determination of sex from skeletal elements are population specific. In a previous study, the authors derived such equations from nine measurements of the talus of South African whites with high levels of average accuracies. The validity of some of the equations was tested on data collected from a South African black sample that consisted of 120 tali, equally distributed by sex, derived from the Raymond A. Dart Collection of Human Skeletons. The average accuracies dropped significantly. This necessitated the derivation of new equations for the South African black population and the average accuracies obtained ranged between 80% and 89%. The validity of the equations derived from the present study was tested using the leave-one-out classification and two independent samples (1 and 2). The applicability of the equations with very high classification rate from the present study was tested on Independent sample 1 of 10 white tali with poor results. The result of the validity of these equations on an Independent sample 2 of 10 black tali revealed acceptably high average accuracies in correct classification thereby supporting earlier observations on population specificity of discriminant function equations.