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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

21st Century Law and Development

David M. Trubek

Shanghai, June 2011

law and development from the 1960s to the present
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
periods of law and development 1 20 th century
Periods of Law and Development (1) 20th Century
  • law as an instrument
  • law as a barrier
  • law as a framework
periods of law and development 2 21st century
Periods of Law and Development (2) 21st Century
  • law as a discovery process
  • law as the result of global forces
  • law as development
20 th century l d two moments of doctrine practice
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
first moment l d
First moment L&D
  • Theory: modernization

,

  • Sector: state led growth
  • Transplants: public law
  • Change agent: legal education
second moment l d
Second moment L&D
  • Theory: neo-liberalism
  • Sector: private sector & markets
  • Transplant: private law, judicial codes
  • Change agent: judiciary
commonalities in 20 th century l d approaches
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
lessons from 20 th century l d
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
forces shaping law and development for the 21 st century
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
globalization
Globalization
  • International norms penetrate domestic law -BITs, WTO etc.
  • Emergence of transnational legal regimes
  • Changing role of Emerging Economies
  • Global lawyers, global law firms
the new developmentalism
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
law in and the new developmentalism
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
law and development without a script
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
methodologies for reform without a script
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
local empiricism reform begins and stays at home
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?
meta empiricism indicators and league tables
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.
critiques of meta empiricism
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
horizontal learning scan globally reform locall y
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
advantages of horizontal learning
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
issues for horizontal learning in l d 1 similarly situated countries
Issues for horizontal learning in L&D: (1) “similarly situated countries”
  • Legal family and culture?
  • Development level and size of economy?
  • National development strategy?
issues for horizontal learning in l d 2 legal variables
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?
the bricslaw project
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
launching bricslaw the november 2010 s o paulo conference
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
s o paulo topics
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
assessment and next steps
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
conclusion
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