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21 st Century Law and Development

21 st Century Law and Development. David M. Trubek Shanghai, June 2011. Law and development from the 1960s to the present. We look at changes in : development theory the nature of the world economy, the role of law and lawyers, research methodology.

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21 st Century Law and Development

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  1. 21st Century Law and Development David M. Trubek Shanghai, June 2011

  2. Law and development from the 1960s to the present We look at changes in: • development theory • the nature of the world economy, • the role of law and lawyers, • research methodology

  3. Periods of Law and Development (1) 20th Century • law as an instrument • law as a barrier • law as a framework

  4. Periods of Law and Development (2) 21st Century • law as a discovery process • law as the result of global forces • law as development

  5. 20th Century L&D Two Moments of Doctrine & Practice • A dominant theory of development, • A privileged sector for growth, • A commitment to legal transplant • A primary legal change agent

  6. First moment L&D • Theory: modernization , • Sector: state led growth • Transplants: public law • Change agent: legal education

  7. Second moment L&D • Theory: neo-liberalism • Sector: private sector & markets • Transplant: private law, judicial codes • Change agent: judiciary

  8. Commonalities in 20th Century L&D Approaches • A meta-narrative –modernization and market fundamentalism • A privileged sector—either state or market • A need for transplants from advanced countries • A leading sector for legal reform • A commitment to certainty and rules • A single formula—one size fits all

  9. Lessons from 20th Century L&D • Meta-narratives do not provide a script for development • One size does not fit all • Legal systems are deeply embedded in society and culture and legal transplants rarely “take” • There is no privileged sector for legal reform

  10. Forces shaping Law and Development for the 21st Century • The impact of globalization • The emergence of the new developmentalism • The search for a new methodology

  11. Globalization • International norms penetrate domestic law -BITs, WTO etc. • Emergence of transnational legal regimes • Changing role of Emerging Economies • Global lawyers, global law firms

  12. The New Developmentalism • The only meta-narrative is that there is none • Development as experimentation and bootstrapping • Situated knowledge essential • Black and white cats: from either state or market to both state and market • Mutual public-private search for optimal paths

  13. Law in and the New Developmentalism • Create a framework for public-private collaboration • Facilitate deployment of situated knowledge • Provide flexibility and encourage experimentation • Maintain predictability when needed

  14. Law and Development without a Script Orienting legal reform when: • General guidelines do not determine institutional design • Advanced country institutions do not provide a model • The choice between public and private law is pragmatic • Local context governs and situated legal knowledge necessary

  15. Methodologies for reform without a script • Local empiricism —study locally, reform locally • Meta-empiricism —universal solutions derived from legal indicators, global data bases, and country rankings • Horizontal learning—scan globally, reform locally

  16. Local empiricism—reform begins and stays at home • Reform should based on careful empirical study of what is working and not working • But without models to copy or a meta-narrative to guide us, how do we know if things could be better or what is the best way to improve them?

  17. Meta-empiricism—indicators and league tables • Measure legal variables and correlate with development statistics • Produce “L&D league tables”: ranking by degree of institutional similarity to high-growth countries • Pressure laggards to move up the table.

  18. Critiques of meta-empiricism • Bias in selection of indicators—e.g. WB Doing Business labor indicators • Validity of underlying data—based on perception of elite actors • Robustness of correlations • Continues top down, one size fits all approach

  19. Horizontal Learning:Scan globally, reform locally • Networks of experts from similarly situated developing countries • Empirically based studies of things that work and don’t work in each country • Benchmarking: sustained dialogue among peer experts • Use of local knowledge concerning adaptability of peer country solutions

  20. Advantages of horizontal learning • Derives ideas for reform from successful innovation in similarly situated countries • Takes account of local conditions and complexities • Proposals emanate from local experts, not from foreign models or international agencies • Decisions on which reforms to try draw on situated knowledge of national experts • Increases legitimacy and buy in by local change agents

  21. Issues for horizontal learning in L&D: (1) “similarly situated countries” • Legal family and culture? • Development level and size of economy? • National development strategy?

  22. Issues for Horizontal Learning In L&D: (2) Legal Variables • Form vs. function: what are comparable legal institutions? • Law in the books vs. law in action: how do we know what is actually working? • Defining success: how do we measure the effectiveness of legal institutions? • Determining compatibility: how do we transfer ideas and institutions?

  23. The BRICSLAW Project • Foster horizontal learning among the BRICS • Creation international of network of scholars • Studies of law and development policy in selected areas • Discussion with policy makers and stakeholders

  24. Launching BRICSLAW—the November 2010 São Paulo Conference • Empirical studies by Brazilian experts • Comments by experts on Russia, India, China • Comments by Brazilian scholars and officials • Revision of Brazilian papers and publication of papers and comments

  25. São Paulo Topics • Foreign trade • Foreign direct investment, • Innovation policy and intellectual property • Competition law • Finance and capital markets • Social policy • The role of courts in the economy

  26. Assessment and Next Steps • Need for long lead time • Advantages of focus—one topic at a time • Importance of government participation • BRICSLAW 2012 –New Delhi

  27. Conclusion • Horizontal learning avoids --meta-narratives --naive transplantation --spurious empiricism • While limited, BRICSLAW could form the basis for an authentic 21st Century Law and Development

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