David M. Trubek

Mind the Gap: Law and New Approaches to Governance in the European Union

This issue of the European Law Journal deals with the emergence of a series of new approaches to governance in the European Union. These issues were discussed at a workshop on “Law and New Approaches to Governance in Europe” which we organised. The workshop was held in Madison, Wisconsin in May 2001 and was cosponsored by the European Union Center of the University of Wisconsin-Madison and the ELJ. Seven of the participants in that workshop developed papers that deal with one or more dimension of the new governance phenomenon. In this essay, we seek to define the concept of new governance, suggest reasons for its emergence, assess the reaction of the European Court and Commission to these developments, and identify some of the conceptual issues this phenomenon presents for legal and political theory.

Alternative Approaches to Governance in the EU: EU Social Policy and the European Employment Strategy

Recent actions by the European Union reveal a shift away from traditional, topdown, command and control governance. This can be seen in the structure of traditional tools like directives, as many recent directives, especially in social policymaking, tend to be more open and flexible. But the move to more flexible and participatory approaches can best be seen in areas like the European Employment Strategy (EES), which departs radically from traditional regulatory governance approaches. This article explores the increased use of alternative approaches to governance in the EU by examining the EES as an example of this shift.

The "Rule of Law" in Development Assistance: Past, Present, and Future

The issue of the relationship between legal institutions and “development”, whether development is defined narrowly in economic terms, or more broadly, was originally mooted by Max Weber 100 years ago and has continued to fascinate scholars. In recent years, it has also come to interest policy makers as development institutions have placed increasing emphasis on the “rule of law” as a necessary ingredient in any development strategy. The result has been a proliferation of law reform projects and programs supported by development assistance institutions. In the 1990s, there was a massive surge in development assistance for law reform projects in developing and transition countries. These projects involve investments of many billions of dollars. The World Bank alone reports it has supported 330 “rule of law” projects and spent

The New Law and Economic Development: Introduction: The Third Moment in Law and Development Theory and the Emergence of a New Critical Practice

2.9 billion dollars on this sector since 1990. At the beginning of this new surge of interest in law within the development community, there appeared to be a broad consensus on the reasons to create the “rule of law” in these transitional and developing economies, on what the “rule of law” meant, and on the best strategies to implement those objectives. But as more was learned about the challenges, and a burgeoning literature emerged, it has become apparent that the initial enthusiasm for the rule of law masked different, and potentially contradictory, visions and approaches. This paper seeks to trace the origins of the current wave of interest in the rule of law, identify the contradictions that have emerged, and specify issues now on the agenda.

Max Weber's Tragic Modernism and the Study of Law in Society

The study of the relationship between law and economic development goes back at least to the nineteenth century. It is a question that attracted the attention of classical thinkers like Marx and Weber. And there were some early efforts to craft policy in this area; for example, under the Raj, some English Utilitarians tried to put Jeremy Bentham’s ideas about law and economic progress into practice in India. But it was only after World War II that systematic and organized efforts to reform legal systems became part of the practice of international development agencies. Initially, development agencies turned to law as an instrument for state policy aimed at generating economic growth. Starting in the 1980s, interest in the role of law in economic development grew, but it was an interest in law more as a framework for market activity than as an instrument of state power. This book argues that, starting in the mid-1990s, development practitioners approached law in a fundamentally new way – as a correction for market failures and as a constitutive part of “development” itself. As a result, “the rule of law” has become significant not only as a tool of development policy, but as an objective for development policy in its own right. This book charts the history of this growing interest in the legal field, explores the shifting rationales behind development policy initiatives, and explores in detail the newest – and most surprising – of these rationales. To do that, we trace the history of a body of ideas about law and economic development that have been employed not just by academics but also by development practitioners responsible for allocating funds and designing projects. In this introduction, we refer to that body of ideas as law and development doctrine. Although this doctrine has academic roots in economic and legal theory, it is a practical working tool of development agencies. This is not a static body of thought. Views on the relationship between law and development, and thus on the nature of legal assistance efforts, change over time. As ideas change and practices evolve, older ideas are challenged

The Political Economy of the Rule of Law: The Challenge of the New Developmental State

While Max Weber is revered as one of the patron saints of the law and society movement, his views on the nature and limits of sociological studies in law are not fully understood. Using recent analyses of Webers legal thought (Kronman, 1983) and overall social theory (Alexander, 1983a), the author argues that while Weber set forth the standard, positivist understanding of the sociology of law that influences research to this day, at the same time he critiqued this understanding and in the end despaired that social science could contribute significantly to human emancipation. Arguing that Webers tragic modernism is an inappropriate guide for law and society studies today, the author suggests an alternative vision in which the sociology of law is seen as part of a pragmatic enterprise of social transformation.

The Construction and Deconstruction of a Disputes-Focused Approach: An Afterword

The continuation of a major role for the state in developing economies, and the emergence of forms of intervention not employed in the past, suggests that we may be seeing the emergence of a ‘new developmental state’ that is inspired by a new political economy.

Law and the new developmental state : the Brazilian experience in Latin American context

The essays and comments in Part Two have dealt with a variety of topics ranging from technical matters like survey response rates to questions about the presuppositions of social research on law. Each paper is an individual contribution to knowledge, but all, to one degree or another, deal with a single issue: how can we best improve our knowledge of civil courts, dispute processing, and social conflict? It is to this broad question that I wish to address these final remarks. This special issue provides a rare opportunity to look systematically at a major area of law and society research. The discussion has brought to the surface questions about the focus, method, and purpose of research. Many of the CLRP papers were explicitly designed to outline an area or program of study, and all reflect a general orientation. The excellent comments by FitzGerald and Dickins, Lempert, and Kidder help us see just what that approach consists of, and the problems it presents.

Globalization, Lawyers, and Emerging Economies: The Case of Brazil

1. Law, state, and the new developmentalism: an introduction David M. Trubek 2. New state activism in Brazil and the challenge for law David M. Trubek, Diogo R. Coutinho and Mario G. Schapiro Part I. New Industrial Policies: Global Insertion, Productive Transformation, Investment Strategies, and Flexible Law: 3. Understanding neo-developmentalism in Latin America: new industrial policies in Brazil and Colombia Shunko Rojas 4. Rediscovering the developmental path? Development bank, law, and innovation financing in the Brazilian economy Mario Shapiro Part II. Trade Law: Carving out Development Policy Space within the WTO Regime: 5. Carving out policy autonomy for developing countries in the World Trade Organization: the experience of Brazil and Mexico Alvaro Santos 6. Developmental responses to the international trade legal game: cases of intellectual property and export credit law reforms in Brazil Michelle Ratton Sanchez Badin Part III. Social Policy and Equity: Two Approaches to the Relationship between Social Policy, Law, and Development Strategy: 7. Decentralization and coordination in social law and policy: the Bolsa familia program Diogo R. Coutinho 8. Social policy and the new development state: the case of Colombia Helena Alviar Garcia.

An Introduction to Globalization, Lawyers, and Emerging Economies: The Case of India

In the 1990s Brazil and other emerging economies went through a major transformation. Closed economies were opened, foreign investment encouraged, and many state-owned enterprises privatized. This “global transformation” had a major impact on the Brazilian legal system. While many parts of the legal system were affected, the corporate law profession changed the most. This sector includes all the institutions and actors that provide legal advice to corporations whether domestic and foreign, public or private. Global transformation brought about major changes in the national political economy, led to a flood of new laws governing corporate activity, and created a demand for new kinds of legal services to help companies manage the new legal environment. This led to rapid growth of the complex of institutions that provide corporate legal services and affected the way lawyering was practiced and organized. Many forces came together to give new shape to the professional identity of lawyers, the structures they work in, and the roles they play. The result was the creation of a new and powerful segment of the legal profession whose activities had profound impacts on the rest of the profession, the legal system, the operation of enterprises (both public and private), state policy and global governance. In this book, we describe the growth of the corporate legal sector in Brazil, and the impact of this development on law-making, legal education, regulation of the legal profession, public interest law, trade policy, and gender roles. The book is part of a larger study of global transformation and its impact on the legal profession carried out by GLEE, the project on Globalization, Lawyers, and Emerging Economies. Based at the Harvard Law School’s Center for the Legal Profession, GLEE is currently studying these developments in Brazil, India and China, with plans to expand the project into Africa and the states of the former Soviet Union. In Brazil, GLEE’s research has been based at the law school of the Fundacao Getulio Vargas (FGV) in Sao Paulo.