21 ST CENTURY LAW AND DEVELOPMENT David M

21 ST CENTURY LAW AND DEVELOPMENT David M. Trubek Shanghai, June 2011

Law and development from the 1960 s 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 law as an instrument law as a barrier law as a framework

Periods of Law and Development (2) 21 st 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 A dominant theory of development, A privileged sector for growth, A commitment to legal transplant A primary legal change agent

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

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 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 th 20 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 The impact of globalization The emergence of the new developmentalism The search for a new methodology

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 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 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 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 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 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 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 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 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 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” Legal family and culture? Development level and size of economy? National development strategy?

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 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 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

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 Need for long lead time Advantages of focus—one topic at a time Importance of government participation BRICSLAW 2012 –New Delhi

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