Law & Development Blog

LSA schedule for CRN on Law and Development

The CRN on the Rule of Law, State-Building and Transition will sponsor several panels at the upcoming Law and Society Association Annual Meeting in Montreal.  Panel descriptions follow:

Session 1104: Sharia and National Law: Between Tradition, Politics and the Rule of Law I

Thursday May 29, 8:15-10:00 AM Room 04

Chair: Jan Michiel Otto (Leiden University) j.m.otto@law.leidenuniv.nl

Sharia and National Law in Morocco

*Léon Buskens (Leiden Uinversity)

Sharia’ and National Law: Legal Conflict in Malaysia’s Dualist Legal System

*Andrew J. Harding (University of Victoria)

National Law, Divine Law, and the Rule of Law

*Salem Nasser (Getulio Vargas Foundation)

Sharia and National Law: A Global Survey

*Jan Michiel Otto (Leiden University)

Session 1304: Judiciaries as Catalysts for Rule of Law and Conflict

Thursday May 29, 12:30-2:15 PM  Room 04

Chair/Discussant: Cynthia Alkon (Applachian School of Law)
Judicial Predictability and Development: The Judicial Predictability and the Discourses on Institutional Reforms in the Justice System
*Luciana G. Cunha (Fundação Getulio Vargas)
Constitutional Borrowing: A Reason for Civil War in Lebanon?
*Cordelia Koch (Peace Research Institute, Frankfurt)
Rule of Law and Judicialization in Japan's Post-Regulatory State
*Veronica Taylor (University of Washington)
Discussant: Christopher PM Waters (University of Windsor)

Session 1404: Sharia and National Law: Between Tradition, Politics and the Rule of Law II

Thursday May 29 2:30-4:15 PM Room 04

Chair/Discussant: Andrew J. Harding (University of Victoria) harding@uvic.ca

Sharia and National Law in Nigeria

Maarten Barends (UNDP CO Sudan), Albert J. Dekker (Van Vollenhoven Institute), *Philip Ostien (University of Jos, Nigeria)

Sharia and National Law: Between Tradition, Politics and Rule of Law Panel B

*Mustafa Kocak (University of Kocaeli/ Georgetown University)

Sharia and National Law in Pakistan

*Martin Lau (University of London)

Sharia and National Law: Between Tradition, Politics, and Rule of Law

*Jan Michiel Otto (Leiden University)

The Role of the Sharia in Tunisian Family Law

*Maaike Voorhoeve (Amsterdam University)

Session 2404: Law’s Double Face in Development

Friday May 30, 2:30-4:15 PM  Room 04

Chair/Discussant: Bronwen Morgan (University of Bristol) B.Morgan@bristol.ac.uk

Could There Be a Human Right to Development, and What Would This Mean for International Institutions and TNCs?

*Bill Bowring (University of London)

Rule of Law or Washington Consensus: The World Bank's Choice

*Julio Faundez (University of Warwick)

The Magic of International Commercial Arbitration: Everyone Please Hold on to Your Wallets

*June McLaughlin (University of London)

The Protection of Cultural Heritage and Investors' Rights: Conflict or Coherence?

*Valentina S. Vadi (European University Institute)

Session 2504: Modalities, Problems and Outcomes in Legal Technical Assistance

Friday May 30, 4:30-6:15 PM  Room 03

Chair/Discussant: Veronica Taylor (University of Washington) vtaylor@u.washington.edu

Rule of Law Cultures

*Amy J. Cohen (Ohio State University)

In the Eye of the Beholder: Social Representations of Rule of Law in Brazil

*José G. Ghirardi (Fundação Getulio Vargas)

Outcomes of Conditionalities on Law Reforms in a Decade after the Asian Crisis

*Yuka Kaneko (Kobe University)

Japan’s International Cooperation in the Area of Criminal Justice: Current Status, Problems, and Future Prospects

*Arinori Kawamura (Japan Coast Guard Academy)

Public Procurement in Law and Development Context

*Daein Kim (Ewha Womans University)

Session 3510: Regulatory Perspectives on the Rule of Law

Saturday May 31, 4:30-6:15 PM  Room 10

Chair/Discussant: Randall Peerenboom (Foundation for Law Justice and Society) rpeerenboom@gmail.com

Developing a Regulatory Understanding of the "Rule of Law" in Socialist Transforming East Asia

*John S. Gillespie (Monash University)

Cultures of Judicial Review in France and the United States in the Context of Immigrants Rights

*Leila Kawar (New York University)

Transforming Development: How State Transformation Has Changed Dynamics and Prospects for Improving Law and Legal Institutions

*Thomas F. McInerney (International Development Law Organization)

Knowledge Based Economy and New Challenges to the State Intervention: A Case Study of Brazilian Development Bank

*Mario G. Schapiro (Getulio Vargas Foundation)

Session 4103: The Post-Developmental State

Sunday June 1, 8:15-10:00 AM  Room 03

Chair/Discussant: TBA

The Administrative State Situated: The Case of Colombia

*Helena Alviar (Universidad de los Andes)

Striving for Independence, Competence, and Fairness: A Case Study of Beijing Arbitration Commission

*Fuyong Chen (Tsinghua University / UC Berkeley)

The HKSAR Basic Law and Universal Suffrage for the Legislative Council

*Yue Niu (University of Hong Kong)

Towards a Legal Theory of the Post-Developmental State

*Hani Sayed (American University in Cairo)

New piece by Davis and Trebilcok

"The Relationship between Law and Development: Optimists Versus Skeptics"

American Journal of Comparative Law, Vol. 57, No. 1, 2009

KEVIN E. DAVIS, New York University School of Law
Email: ked2@nyu.edu
MICHAEL J. TREBILCOCK, University of Toronto - Faculty of Law
Email: michael.trebilcock@utoronto.ca

Over the past two decades there has been a resurgence of interest, on the part of both academics and practitioners, in using law to promote development in Latin America, sub-Saharan Africa, Central and Eastern Europe, and Asia. The level of academic interest in the topic is reflected in the publication of three recent books on law and development by prominent American scholars: Thomas Carothers (ed.), PROMOTING THE RULE OF LAW ABROAD: IN SEARCH OF KNOWLEDGE, Kenneth Dam, THE LAW-GROWTH NEXUS: THE RULE OF LAW AND ECONOMIC DEVELOPMENT, and David Trubek and Alvaro Santos (eds.), THE NEW LAW AND ECONOMIC DEVELOPMENT: A CRITICAL APPRAISAL. In this Essay we suggest that these books (or at least some contributions to them) reflect insensitivity to the ambiguities surrounding the relationship between legal reform and development. We show that there is ongoing debate about fundamental questions such as whether law is an important factor in determining social or economic outcomes in developing societies given the existence of informal methods of social control; whether there are insurmountable economic, political or culture obstacles to effective legal reform; as well as, assuming effective legal reform is feasible, what types of reforms are conducive to development and what types of actors ought to implement them. We argue that although there are some reasons for optimism about the potential impact of legal reforms upon development, the relevant empirical literature is inconclusive on many important issues and counsels caution about the wisdom of continuing to invest substantial resources in promoting legal reform in developing countries without further research that clarifies these issues.

New paper by Cole

Dan Cole of Indiana-Indianapolis has just posted a new paper on SSRN:

"Institutions Matter! Why the Herder Problem is Not a Prisoner's Dilemma"

DANIEL H. COLE, Indiana University School of Law - Indianapolis
Email: dancole@iupui.edu

In the game theory literature, Garrett Hardin's famous allegory of the "tragedy of the commons" has been modeled as a variant of the Prisoner's Dilemma, labeled the Herder Problem (or, sometimes, the Commons Dilemma). This brief paper argues that important differences in the institutional structures of the archetypal Prisoner's Dilemma and Herder Problem render the two games different in kind. Specifically, institutional impediments to communication and cooperation that ensure a dominant strategy of defection in the classic Prisoner's Dilemma are absent in the Herder Problem. Their absence does not ensure that players will achieve a welfare-enhancing, cooperative solution to the Herders Problem, but does create far more opportunity for players to alter the expected payoffs through cooperative arrangements. In a properly modeled Herder Problem, defection would not always be the dominant strategy. Consequently, the Herder Problem is not in the nature of a Prisoner's Dilemma.

LSA approaching...

The LSA Montreal program is now closed.  check http://www.lawandsociety.org/ for details....

more here soon on our CRN programs.

The Doing Business Debate continued...

Benito Arrunada has just posted a response to Simeon Djankov's rebuttal of his critique of  the Doing Business methodology.  Available here.

Chindia

Jagdish Sheth, a distinguished business school professor at Emory, has a new book Chindia Rising that is worth a look.  Sheth was one of the early analysts to identify the China-India-US relationship as the key triangle of the 21st century, and this book is a positive take on this development for the world.

     -TG

New paper by Kelly

is now available on SSRN. Details below:

"International Law and the Shrinking Space for Politics in Developing Countries"

Widener Law School Legal Studies Research Paper No. 08-31
Comparative Constitutionalism and Rights: Global Perspectives, Forthcoming

J. PATRICK KELLY, Widener University - School of Law
Email: jpkelly@widener.edu

This article asks to what extent and by what processes should international legal norms be incorporated into domestic constitutions particularly in developing countries. It raises several concerns about the democratic legitimacy of many international legal norms and therefore about the wisdom of the developing countries incorporating international legal norms into domestic law without extensive political deliberation. The internationalization of constitutional interpretation rests on several problematic assumptions. First, proponents of internationalization of constitutional interpretation assume that several international norms, originally only human rights but now increasingly environmental norms, are universal and should be incorporated without specific democratic approval. Second, other international norms, delineated as customary international norms, are perceived to be formed by the consent of the world community of nations and are therefore obligatory.

The importation of international norms by developing countries is especially problematic because they have so little input into international norms and institutions. Developing countries are receivers of international law, not makers of international law. Such norms may be of questionable legitimacy in these societies, and may be inappropriate policy choices in countries at a different stage of economic development than more developed western countries.

My concern is that with globalization and the increased dominance of the western democracies in international law formation there has been a turn away from consent as the basis of international law making and towards "Naturalism." Premature international legalism takes normative development and sensible trade-offs out of the realm of both international and domestic politics without the necessary political deliberation. Rights have costs both in financial resources and political resources that should be assessed along with competing claims.

End nigh for Mugabe?

story here.  this would be a welcome relief; I think we'll only learn with time the extent of the havoc the demagogue wreaked on his country.

here is an only slightly provocative question: would Zimbabwe be better off if the transition to majority rule had been negotiated rather than armed struggle? the answer is certainly yes.  some Rhodesian whites and other minorities might have stayed, contributing to the nations development. 

   -TG

Democracy and funding for legal institutions

I heard an interesting paper at the Yale Workshop on the Rule of Law over the weekend.  Stanfurd political scientists Alberto Diaz-Cayeros and Beatriz Magaloni have a paper on Democratic Accountability and the Rule of Law in Mexico in which they show among other things how funding for rule of law institutions has increased after 1994. I thought this would be an interesting comparative variable to examine across countries, though one might also see increasing funding for legal institutions in an autocracy, such as China. Ultimately one would like to have a measure of effective constraint by particular legal institutions as an independent variable.

   --TG

The semi-presidential solution?

This is not directly related to law and development, but I've been struck in recent months at how semi-presidentialism has been deployed to defuse three different potential hot-spots.  First, Russia's constitutional order no doubt endured because Putin could step down to the previously weak post of Prime Minister and ensure his lackey Medvedev won the presidential election earlier this month.  Most observers think that the informal power of Putin will allow him to exercise real control, notwithstanding the constitutional strength of the presidency, but Medvedev is a young man and may grow into his own skin in the office.  If so, the possibility of semi-presidentialism will have allowed Putin to exit gracefully.  Of course, it is also possible that Putin will remain Prime Minister for life, as the office is not subject to the term limits of the presidency.

A second hotspot was Pakistan.  Musharraf's assumption of the presidency was incredibly controversial, but with the designation of a prime minister from Bhutto's PPP, it is clear that effective power will not reside with the president.  Musharraf was allowed to save face by taking the presidency.

Third, Kenya's violence was defused with a political deal to reform the constitution and create a powerful prime ministership for Odinga, the loser in a disputed contest with incument Kibaki.  In this case, the negotiations over the details have been deferred,so it is not yet clear whether the semi-presidential "solution" will take.  But at least the negotiations are taking place in the drafting room rather than the streets.

All this is consistent with one of the critiques of "pure" presidentialism, and a corresponding advantage of semi-presidentialism.  Pure presidentialism is seen as encouraging winner take all politics.  Dual executives allow the splitting of the political baby, even if the result can be gridlock.

          -TG

Best practices for SWFs

Today's NY Times reported that the Sovereign Wealth Funds of Abu Dhabi and Singapore have agreed to avoid making politically motivated investment decisions.  Story here. There has been a good deal of back and forth as the US and other target countries for investment have sought to have the IMF draft soft "best practices" for SWFs while fund managers have resisted. The IMF Board is to approve the project today (posted Friday).

New paper on remittances

Ezra Rosser of American University in Washington DC has just posted a new paper on Remittances, (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1107485), forthcoming in the Connecticut Law Review.  The abstract follows:

Remittances, the sending of money from immigrants back to their home countries, are the newest anti-poverty, development activity of the poor to be applauded by international institutions and economists. Exceeding foreign aid and private investment to many developing countries, remittances are being hailed as a new, untapped resource with powerful poverty alleviation and potentially development attributes. After presenting the poverty, developmental, and economic characteristics of this new transnational connection between immigrants and their loved ones, as well as the dangerous effects of excessive remittance regulation, this paper argues that remittances should be understood as an anti-poverty tool, but not as a route to development.

       -TG

New Study of FDI and Human Rights

The International Finance Corporation (IFC) and the United Nations Secretary-General’s Special Representative on Business and Human Rights (SRSG), Professor John Ruggie of Harvard University, released a draft of the research paper they commissioned on foreign direct investment and human rights.  The paper focuses on stabilization clauses, designed to facilitate stability in the regulatory environment for investment contracts with foreign states.

As the press releast summarizes, "the study found that stabilization clauses are sometimes drafted so as to insulate investors from having to implement new environmental and social laws, or to provide investors with an opportunity to be compensated for compliance with such laws.  The sample of contracts gathered for this study showed that this was more likely to be the case in the contracts from countries outside OECD than in OECD country contracts."

   -TG

Draft Report from Financial Globalization and Human Rights Colloquium

Two weeks ago, the Center on Law and Globalization (a joint project of the University of Illinois College and the American Bar Foundation) sponsored a colloquium on Financial Globalization and Human Rights.   A draft report is available here:

Download financial_globalization_and_human_rightsreport.doc .

   -TG

New paper by Sokol

Daviel Sokol, a VAP at the University of Missouri, has an interesting new paper entitled "An Empirical Evaluation of Long Term Advisors and Short Term Interventions in Technical Assistance and Capacity Building."  You can download it at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1095884.

This is a crucial area for investigation and I am glad to see someone doing some work on it.

   -TG