January 27, 2009
New work by Sokol
Among many new interesting law and development-related articles this month is one by Daniel Sokol (Florida) on antitrust in developing jurisdictions (among others). The SSRN link is below.
This Essay focuses on how both external (international institutions) and internal (agency capacity and technical assistance) dynamics shape the capacity of younger agencies to undertake antitrust in their jurisdictions. Both approaches play an important role in improving capacity. In the case of technical assistance, this Essay analyzes survey data from recipient agencies of antitrust technical assistance to determine the most effective means of improving antitrust agency capacity. Part I explains the type of capacity building that antitrust agencies undertake themselves. The rest of this Essay focuses upon international efforts that can assist agencies in capacity building, but it is important not to overlook capacity building efforts that can occur at the agency level. Part II describes the work that international antitrust institutions undertake to improve agency capacity. Part III provides an analysis of survey data that shows how technical assistance from outside providers can improve agency capacity. Part IV concludes and offers recommendations to improve developing world antitrust agency capacity building.
September 15, 2008
Lawyers and political liberalism--China as exception or rule?
There's been some recent writing examining the role of lawyers in liberal transformations, most notably the volume by Halliday, Karpik and Feeley entitled Fighting for Freedom. In a recent paper that I recommend, available here, Randy Peerenboom takes issue with overly optimistic assessements about the ability of lawyers to serve as a beachhead for liberalism in China. Randy argues that the best analogue is the legal profession under authoritarian dictatorship elsewhere in East Asia, which was effectively limited as a source of liberalism. I'm generally inclined to agree with his assessment in China. The dynamics may be quite different than they ultimately turned out to be in Taiwan & Korea, where lawyers did play a leading role in democratization movements.
September 11, 2008
New book by Mattei and Nader
Ugo Mattei (Hastings) and Laura Nader (Berkeley) have a powerful new book called Plunder: When the Rule of Law is Illegal available here. It is a critical condemnation of the international rule of law as a tool of exploitation and neo-colonialism, making direct links between the earlier eras of international law as a "civilizing" discourse and contemporary law/development practice. Like some of the work of Naomi Klein, it is a structural analysis in which only one side of the world has agency. I'd be interested in any comments from readers.
August 22, 2008
Education and Inequality
I just came across this fascinating paper from 2007 on The Inheritance of Educational Inequality, by six young economists and published in the BE Press Journal of Economic Analysis and Policy. The paper uses regression techniques to estimate 50-year trends in the intergenerational persistence of educational attainment for a sample of 42 nations around the globe. It shows, interestingly, that the causal relationship between parents and childs educational attainment and status have been constant, but the size of the effect has gradually decreased in many countries. Still, there are large regional differences in educational persistence, with Latin America displaying the highest intergenerational correlations and the Nordic countries the lowest.
The paper seems relevant for some of Dezalay and Garth's law and society work on the use of law as an intergenerational status transmission device. Their excellent book The Internationalization of the Palace Wars, focused on Latin America, but the story may not be universally applicable if (legal) education is a more important status transmission device in that region than in others. They are apparently working on a book on Asia which will be of great interest.
August 09, 2008
Can Survey Evidence Shed Light on FDI Spillovers?
A new piece by Beata Javorcik (Oxford) considers this question here. The Abstract follows:
Although some economists remain skeptical of the existence of positive externalities associated with foreign direct investment (FDI), many countries spend large sums attracting foreign investors in the hope of benefiting from knowledge spillovers. Data collected through enterprise surveys conducted in the Czech Republic and Latvia suggest that the entry of multinationals affects domestic enterprises in the same industry or in upstream or downstream sectors through multiple channels. Some of these channels represent true knowledge spillovers while others have positive or negative effects on domestic producers in other ways. The relative magnitudes of these channels depend on host country conditions and the type of FDI inflows, which explains the seemingly inconsistent findings of the literature. The focus of the debate should shift from attempting to generalize about whether or not FDI leads to productivity spillovers to determining under what conditions it can do so.
August 07, 2008
New article by Arrunada and Andonova
"Common Law and Civil Law as Pro-Market Adaptations" is now available on SSRN here.
Abstract: We argue that in the development of the Western legal system, cognitive departures are the main determinant of the optimal degree of judicial rule-making. Judicial discretion, seen here as the main distinguishing feature between both legal systems, is introduced in civil law jurisdictions to protect, rather than to limit, freedom of contract against potential judicial backlash. Such protection was unnecessary in common law countries, where free-market relations enjoyed safer judicial ground mainly due to their relatively gradual evolution, their reliance on practitioners as judges, and the earlier development of institutional checks and balances that supported private property rights. In our framework, differences in costs and benefits associated with self-interest and lack of information require a cognitive failure to be active.
July 24, 2008
New work on Asia by Berkowitz and Moenius
I am in Seoul, Korea, and am reminded that there has been relatively little attention paid in recent years to the classical questions of rapid growth in Asia, outside China. This paper by Berkowitz and Moenius, available at SSRN, looks good.
In previous work (Berkowitz, Moenius and Pistor 2006), we have shown that countries with high quality legal institutions specialize in exporting complex products whose characteristics are difficult to fully specify in contracts. The miracle growth in the Asian Nine (China, Hong Kong, Indonesia, Japan, Malaysia, Singapore, South Korea, Taiwan and Thailand) during the latter half of the past century has been accompanied by a remarkable increase in complex goods exports and an increase in the ratio of complex to simple goods exports. We test our theory for the Asian Nine and find that good institutions have a substantially stronger than average impact on complex and simple goods trade in those countries. In countries outside the Asian Nine gains in the perceived quality of institutions spur complex exports primarily by lowering the domestic costs of producing complex goods. However, in the Asian Nine good institutions are also important because they lower transactions costs of importing and exporting complex goods.
July 15, 2008
New survey paper on finance and growth
Daniel Sokol at Florida has just brought this paper to my attention. Thanks!
July 12, 2008
Ochoa on the Ruggie Report
Christy Ochoa, of the University of Indiana at Bloomington, has a nice piece on the Ruggie report in the latest ASIL Insights, available here.
Resource curse in US states
Here is an interesting article I just came across. The cite is Comparative Politics 41: 477-514 (2008).
Lessons from Strange Cases: Democracy, Development and the Resource Curse in U.S. States
Ellis Goldberg, Erik Wibbels and Eric Mvukiyehe
Abstract: The work linking natural resource wealth to authoritarianism and under-development suffers from several shortcomings. In this article, the authors outline those shortcomings and address them in a new empirical setting. Using a new data set for the U.S. states spanning 73 years and case studies of Texas and Louisiana, the authors are able to more carefully examine both the diachronic nature and comparative legs of the resource curse hypothesis than previous research has. They provide evidence that natural resource dependence contributes to slower economic growth, poorer developmental performance, and less competitive politics. Using this empirical setting, they also begin parsing the mechanisms that might explain the negative association between resource wealth and political and economic development. They draw implications from intranational findings for resource abundant countries across the world and suggest directions for future cross-national and cross-state work.
June 25, 2008
upcoming book by Bhagwati
Jagdish Bhagwati's Termites in the Trading System: How Preferential Agreements Undermine Free Trade (Oxford UP) will be released next month.
Excerpt from the blurb: Writing with his customary wit, panache, and elegance, Bhagwati documents the growth of these PTAs, the reasons for their proliferation, and their deplorable consequences, which include the near-destruction of the nondiscrimination that was at the heart of the postwar trade architecture and its replacement by what he has called the spaghetti bowl of a maze of preferences. Bhagwati also documents how PTAs have undermined the prospects for multilateral freeing of trade, serving as stumbling blocks, instead of building blocks, for the objective of reaching multilateral free trade. In short, Bhagwati cogently demonstrates why PTAs are Termites in the Trading System.
Order from OUP at http://www.oup.com/us/catalog/general/subject/Economics/International/?view=usa&ci=9780195331653 or Amazon at http://www.amazon.com/Termites-Trading-System-Preferential-Agreements/dp/0195331656
June 16, 2008
New paper by Fandl
Kevin Fandl of American University and George Mason has posted a new paper to SSRN on The Role of Informal Legal Institutions in Economic Development, available here. The abstract follows:
The purveyance of the rule of law in developing countries has frequently been associated with positive economic development. Better clarity, scope, transparency and enforcement of the laws will promote confidence and trust in the formal legal system, the argument suggests. At its core, this argument misses a fundamental yet widely recognized tangent to the rule of law -- the role of informal legal institutions. The perception of legal systems perpetrated by the state -- formal legal systems -- is negative in many developing countries. Corruption, high costs and lengthy time periods for issue resolution limit the ability and willingness of many citizens, especially the poor, to access justice via the state. Accordingly, informal mechanisms are frequently relied upon to litigate property disputes, enforce contracts, regulate labor relationships, and address a variety of other legal issues. While some of these informal legal decisions are recognized and given effect by formal legal systems, the overall environment of two legal systems -- formal and informal -- begs the question, is the potential economic development effect of rule of law programs muted by the existence of a two-track legal system that leads many citizens to seek remedies outside of formal law? This briefing paper lays the groundwork for this discussion by presenting background on the existence of informal legal systems, an explanation of their benefits and discussion of their significant limitations, and an outline of the nature of the informal economy that is largely affected by informal legal mechanisms. The paper concludes by explaining the contribution that informal legal systems can make to economic development when they are linked to formal legal enforcement.
June 10, 2008
Where does the money go?
Where does foreign aid go? here is a new article on the topic by William Easterly and Tobias Pfutze.
Journal of Economic Perspectives; Spring2008, Vol. 22 Issue 2, p29-52
Abstract:This paper does not address the issue of aid effectiveness-that is, the extent to which foreign aid dollars actually achieve their goals-but on "best practices" in the way in which official aid is given, an important component of the wider debate. First we discuss best practice for an ideal aid agency and the difficulties that aid agencies face because they are typically not accountable to their intended beneficiaries. Next we consider the transparency of aid agencies and four additional dimensions of aid practice: specialization, or the degree to which aid is not fragmented among too many donors, too many countries, and too many sectors for each donor); selectivity, or the extent to which aid avoids corrupt autocrats and goes to the poorest countries; use of ineffective aid channels such as tied aid, food aid, and technical assistance; and the overhead costs of aid agencies. We compare 48 aid agencies along these dimensions, distinguishing between bilateral and multilateral ones. Using the admittedly limited information we have, we rank the aid agencies on different dimensions of aid practice and then provide one final comprehensive ranking. We present these results as an illustrative exercise to move the aid discussion forward.
May 07, 2008
New piece by Davis and Trebilcok
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.
April 24, 2008
New paper by Cole
Dan Cole of Indiana-Indianapolis has just posted a new paper on SSRN:
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.
April 15, 2008
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.
April 13, 2008
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.
April 04, 2008
New paper by Kelly
is now available on SSRN. Details below:
Widener Law School Legal Studies Research Paper No. 08-31
Comparative Constitutionalism and Rights: Global Perspectives, Forthcoming
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.
March 31, 2008
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.
March 13, 2008
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."
March 03, 2008
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:
February 27, 2008
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.
February 25, 2008
Lootable Wealth and Disorder
At our recent Chicago discussion of Financial Globalization and Human Rights, I was recently reminded of Richard Snyder's paper Does Lootable Wealth Breed Disorder? which appeared in Comparative Political Studies in October 2006. Snyder explains, in a simple unified framework, why some resource rich economies end up like Myanmar (repressive and stable) while others end up being like Sierra Leone (civil war and unstable). Snyder is focused on lootable resources, those for which there are low barriers to entry; in contrast with oil or minerals that require large scale fixed investments, the state cant easily monopolize lootable resources and so must ally with private businesses. Myanmar's narco-military regime is a good example. The generals, of course, also have natural gas which fits to more convention resource curse story. In any case, the piece is highly recommended.
January 24, 2008
Paris Club and Nigerian Debt
There is a new paper on debt relief on SSRN entitled "The Paris Club and Nigerian Debt" by Anthony N. Odiadi of Georgetown. An abstract follows:
The cancellation of the Nigerian debt by the Paris Club of creditors promises a great relief to the country. The cancellation came in the wake of a well articulated reform blue print, yet it is all too obvious that the reforms needs to be further consolidated just as international lending practices must change and adopt less predatory tendencies. The Nigerian example makes a case for home-grown reforms rather than the top down measures of the world's key lending institutions that has often led to severe and adverse economic situation for the populace. Both the debtors and creditors have obvious challenges in containing the debt crisis, but the Nigerian example can show the way forward in Thirdworld debt management.
January 17, 2008
New paper by Sannerholm
is avialable at ssrn.
The international community is exercising an increasing authority for the administration of justice in crisis and post-conflict societies. An inherent problem is that while international actors are endowed with a strong mandate for reform, the capacity of local authorities is weak or non-existent. Contrary to the growing consensus that local input, ownership and participation is crucial for the legitimacy and viability of legal reforms, fundamental changes in the legal framework of post-conflict societies is often initiated, designed and implemented by outside actors. It will be argued in this article that international actors should place more effort into considering guiding principles for their involvement in rule of law reform. Crisis societies pose particular challenges to rule of law promotion and the choice of laws and institutions, as well as the methods for legal reform, must be better adapted to post-conflict realities.
December 10, 2007
Call for papers: East Asia Law Review
The University of Pennsylvania announces a new East Asia Law Review, formerly the Chinese Law and Policy Review, and is accepting submissions for its next volume, until January 15, 2008. From the call for papers: The mission "is to provide a forum for the study of the law of East Asian nations, thus, submissions should be related to the law, its practice, implementation or implications in East Asian nations. Submissions are accepted from anyone with an interest in East Asia,including but not limited to legal academics, legal professionals and students. Manuscripts should be submitted electronically in Microsoft Word format to our articles editor, Binni Shah at firstname.lastname@example.org. To view previous articles, please visit our website at http://www.law.upenn.edu/groups/clsa/clr/submissions/ or send an email to email@example.com " -TG
The University of Pennsylvania announces a new East Asia Law Review, formerly the Chinese Law and Policy Review, and is accepting submissions for its next volume, until January 15, 2008.
From the call for papers:
The mission "is to provide a forum for the study of the law of East Asian nations, thus, submissions should be related to the law, its practice, implementation or implications in East Asian nations. Submissions are accepted from anyone with an interest in East Asia,including but not limited to legal academics, legal professionals and students. Manuscripts should be submitted electronically in Microsoft Word format to our articles editor, Binni Shah at firstname.lastname@example.org. To view previous articles, please visit our website at http://www.law.upenn.edu/groups/clsa/clr/submissions/ or send an email to email@example.com "
November 15, 2007
new work on Indian courts: civil procedure matters
I just saw two new papers on courts in India posted on SSRN by Matthieu Chemin of the Econ Department at the University of Quebec. You can find them here and here. The author uses spatial and temporal variation in the enactment of civil procedure reforms designed to speed case processing to examine the impact of reforms on growth and firm behavior. The basic finding: civil procedure matters.
November 04, 2007
New Book Series: Law Development and Globalization
Julio Faundez (University of Warwick) has launched a new interdisciplinary book series with Routledge-Curzon on Law, Development and Globalization. The full series description and contact details are attached.
Book proposals submissions are welcome. Congratulations Julio and thanks for bringing this to our attention.
October 27, 2007
Davis and Kruse on the Doing Business Project
Kevin Davis (NYU) and Michael Kruse (now at Hunton and Williams) have an excellent article in the forthcoming Fall 2007 issue of Law and Social Inquiry on the World Bank's Doing Business Project. The article, to quote the abstract, analyzes "the strengths and limitations of the [Doing Business] project, both as a scholarly enterprise and as a set of proposals for legal reform. Our analysis highlights the challenges associated with measuring legal variables in the face of legal complexity and uncertainty, measuring development when the concept of development is contested, tracing causal connections between law and development, and using scholarly research as a basis for legal reform." They encourage the next iteration of the project to "strive to be open to a broader range of theoretical perspectives on the features of the regulatory environment and social or economic outcomes that ought to be included in their database. A more pluralistic approach to the theoretical underpinnings of the project seems indispensable in light of the tremendous variety of theoretical claims that have been made about the relationship between law and development." This is a sophisticated critique that will resonate with many of the concerns of L & D scholars.
IDLO Launches ROL Assistance Directory
The International Development Law Organization (IDLO) is a Rome-based intergovernmental organization active in rule of law project implementation, research and training. IDLO launched its new Rule of Law Assistance Directory on 25 Oct 2007. This is a digital database of rule of law projects, coded by donor, implementer, region, type and year. It is also keyword searchable. It aims to provide moderated project summaries of rule of law work carried out worldwide that will also become an archive. It looks like a useful resource for practioners and researchers, and allows feedback on features that we would like to see added. Worth looking at.
- Veronica Taylor
October 21, 2007
Why Asia ought to be at the center of studies of democratization...
One of my own ongoing concerns is to draw more attention to the lessons of East Asia for law and development, and legal studies more generally. Indeed, this is a key concern for many of us in the CRN, including Veronica, John Ohnesorge, and Per Bergling. I have a forthcoming paper on democratization in Asia, entitled "Lessons for Democratic Transitions: Case Studies from Asia" that may be of interest. The abstract and a download link are below.
Abstract: In an era when democratization is stalled or in retreat in many parts of the world, it is important to highlight the successful democratic experience of East and Southeast Asia in recent decades. Five consolidated democracies have emerged since the mid-1980s; only Thailand has seen some backsliding with the 2006 coup. The Asian cases provide insights into several major debates in the democratization literature, including the relative importance of culture, history, economic structure, and the optimal sequencing of political and economic reform. This article reviews these issues, with particular attention to the role of outside powers in underpinning democratization. Ultimately, the Asian cases offer evidence for optimism about the prospects of a Fourth Wave of democratization.
October 11, 2007
LAD Practitioner Network: INPROL
Colleagues who are both scholars and practitioners in LAD may be interested in the United States Institute of Peace INPROL Network. This is a database of 600+ rule of law practitioners and a digital archive of primary and secondary rule of law documents sorted by country/mission as well as by theme. There are also some discussion threads, currently weighted toward security and policing. (Legal education and original research are not featured, one reason that we want to build out that discussion here.) Access is membership based - you have to complete an application and supply a profile. You need to nominate a sponsor from the existing list. For reference, both Tom Ginsburg and Veronica Taylor are members.
October 10, 2007
New Directions: The LAD Industry is Us
When we were talking about new research directions at Law and Society in Berlin earlier this year, Bryant Garth urged more work on the LAD industry. The development industry is under intense scrutiny this year in the US. Revelations about the extent of privatized security in Iraq and Afghanistan, and the political linkages and profits of a major player, Blackwater, prompted Congressional hearings. One result has been repeal of the immunity from prosecution under Iraqi law given to contractors in 2004. New legislation that passed the U.S. House of Representatives last week subjects contractors to US criminal law. (Recall the 19thC treaty immunities and consular courts in China, Japan and Thailand. At least these contemplated a local legal venue for pursuing claims against foreign merchants, even while applying foreign law. Empires of the 21st century, by contrast, gave unconditional legal protection to their privateers.)
As scholars we probably like to distinguish our work and practice from the gun-toting intimidation of 'security' in conflict or post-conflict settings. A very small news item this week shows how tissue thin the distinction is.
Two Iraqi women were killed this week in Baghdad by employees of Unity Resources Group, an Australian-owned security firm based in Dubai. Their mistake was not slowing sufficiently as they approached a Unity convoy in the street, possibly because they panicked after the convoy threw a smoke device at them. They were not the first Unity casualties in Iraq.
Unity is one of a number of firms listed (though not guaranteed) by the State Department website. Its client in this case was RTI International. Technically a non-profit corporation, RTI is a 2600 employee-strong entity established by, and still affiliated with, Duke University, the University of North Carolina and North Carolina State U. Its major client is USAID, for whom is is performing multiple multi-million dollar contracts. Described as a research institute, this is in fact a very large business, headed by a former Monsanto executive.
RTI's project in Iraq? Democracy and governance. Their major activity in Iraq has been the roll-out of local government elections including selection, vetting and training of local councilors. All directed by a former professor of political science.
RTI boasts a comprehensive Code of Ethics, which is strong on not buying meals for US government employees and not renting local office space from your cousin in a developing country. It is silent on the organization's obligations to citizens in the countries in which it works.
Like many colleagues in this field, I have hired local security and I have occasionally run for my life. I have no experience of Timor or Bosnia or Gaza, but I presume that personal security has been a key issue there as well. I am not arguing against taking maximum precautions and traveling with care. But when a routine 'outcome' of a democracy and governance project is the deaths of innocent civilians, it seems to me that we are looking at a critical flaw in the enterprise. Moreover it is an enterprise in which universities and our LAD projects are embedded.
October 08, 2007
New Directions: Law and Development At Home
At the Law and Society Meeting in Berlin in August 07, we talked about new directions for LAD research. One topic that we didn't canvass was the connection between international law and development and that which is done 'at home'. On a sabbatical visit home to Australia this month I encountered some rather muscular LAD of the national kind: Prime Minister Howard has declared an emergency in our least-developed State, the Northern Territory, and has appointed Maj Gen David Chalmers of the Australian Army to coordinate dramatic governance reforms in 70 remote Aboriginal communities.
The trigger for the federal government 'intervention' was a June 15 Report by the NT State Government Inquiry into child sexual abuse in Aboriginal communities (the Little Children are Sacred Report). The findings were not new - the links between poverty, destruction of traditional life, welfare, alcohol, drugs, family violence and sexual assault in many Aboriginal communities have been well documented. What was a surprise was that the Prime Minister, who is facing a federal election and probable defeat before year's end, announced a dramatic policy shift on June 22.
This new federal policy - which does not adopt the Report recommendations - bans alcohol and pornography in specified Aboriginal settlements and makes welfare payments conditional on children's school attendance and health checks. For a period of five years, it also allows the federal government to seize Aboriginal land and homes, and dispatch interstate police, troops and managers into settlements. The first considered analysis is from the Center for Aboriginal Economic Policy Research at the Australian National University: Jon Altman (ed) Coercive Reconciliation: Stabilize, Normalize and Exit Aboriginal Australia (Arena Publishing, 2007).
What does all this have to do with law and development? Four interesting research threads stand out. First is the similarity to post-conflict state-building, which Per Bergling reminds us often involves coercive or didactic law-making. I'm immediately reminded of the Provincial Reconstruction Teams (PRTs) in Afghanistan and Iraq, controversial because they blend military peace-keeping with humanitarian aid - and rule of law initiatives. If a problem is a national 'emergency' this justifies the military intervention and an underscoring of risk that permits regular law to be suspended. For five years the federal government can set aside the existing rights of Aboriginal Australians - including property rights - without having ever delivered their entitlements as citizens of one of the world's richest countries: health, education, housing and personal safety.
Second, without using the word, the intervention models some of the worst practices of 'development'. New, government-mandated experts are arriving in communities to 'consult' on problems that in local minds have been identified for decades. But the experts are treated politely because this is the first tangible sign that the (donor) government is paying attention. Housing is being built rapidly - for the advisors, not for the local residents. Community leaders are reluctant to criticize because a great deal of money is at stake, however ill-conceived the policies may be. Interestingly, a consistent request has been for policing, either because it has never existed, or because it is ineffective to respond to community violence.
Third is the myth of sequencing. I used to think that the LAD mess that is created in some places was a function of donor competition and lack of historical sensitivity to how law-making should proceed. What the Aboriginal example shows is that you can live in geographic center of a very sophisticated legal system, but still end up with law-making that tries to take on child welfare, education, sanitation, transport, employment, nutrition, literacy and local governance simultaneously, with predictably chaotic results.
Fourth, and most surprisingly, is the moving budget target. When announced, the Prime Minister estimated the 'intervention' would cost 'in the tens of millions'. By August the figure was revised to $500m and Jon Altman puts it much higher. The puzzle here is that Australian federal and State governments have been funding the administration of Aboriginal and Torres Strait Islander affairs for decades. Moreover, Australia scores high on the World Bank's Doing Business indicators for the leanness and speed of its bureaucracy. To paraphrase Mike Dowdle, poor countries have development and rich countries have regulation. So why, three months later, do we not have an estimate of what it costs to deliver basic services to a defined population, and why have none of the projected services been delivered? (The Australian, 4 October, 2007:13)
So here is the paradox. Australia presents itself internationally as a sophisticated law and development donor, albeit that our development record in the immediate neighborhood has produced mainly fragile states (Papua New Guinea, Fiji, the Solomons, Timor Leste). But if we are doing law and development at home, with a familiar cast of players, and the recipients are our own citizens, can we realistically expect better outcomes? Is our 'export quality' law and development in any way related to our 'domestic use only' product? Should it be?
This is a story from a remote place in a far away country, but for me it provokes questions about other 'domestic' law and development projects, like the ones that China has underway in Tibet and Xinjiang and the potential scenario that may unfold between South and North Korea. I'm sure there are many more examples. What do you think?
October 07, 2007
One more piece from Raquel Yrigoyen Fajardo on legal pluralism
Legal Pluralism, Indigenous Law and the Special Jurisdiction in the Andean Countries" In: Beyond Law, Informal Justice and Legal Pluralism in the Global South Vol. 10 , Issue # 27, 2004.