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Since the rise of the nation-state in the nineteenth century, constitutions have been seen as an embodiment of national values and identity. However, individuals, ideas, and institutions from abroad have always influenced constitutions, and so the process is better described as transnational. As cross-border interaction is increasing in intensity, a dominant transnational legal order for constitutions has emerged, with its own norms, guidelines and shared ideas. Yet both the process and substance of constitution-making are being contested in divergent and insurgent constitutional orders. Bringing together leading scholars from the United States, Europe, Latin America, and Asia, this volume addresses the actors, networks, norms and processes involved in constitution-making, as well as the related challenges, from a transnational and comparative perspective. Drawing from the research on transnational legal orders, this work explores and examines constitution-making in every region of the world.
This article employs a new framework for legal change, the recursivity of law, to explain why China's criminal procedure law has cycled through numerous reforms between 1979 and 2008 without improving the conditions of lawyers' criminal defense work. The authors argue that Chinese lawyers' difficulties in criminal defense have deep roots in the recursive nature of the criminal procedure reforms. In particular, those difficulties were produced by interactions of the four mechanisms of recursivity (indeterminacy of law, contradictions, diagnostic struggles, and actor mismatch) in both lawmaking and implementation. The empirical analysis shows that these mechanisms are linked in pairs and in sequence. This logic of change offers an integrated interdisciplinary approach to the enactment and implementation of law in other times, places, and areas of law.
This article draws from a larger research project on the globalization of bankruptcy law that includes (1) a time-series analysis of all bankruptcy reforms worldwide from 1973 to 1998; (2) participation observation, several hundred interviews and documentary analysis of international financial institutions (IMF, World Bank, Asian Development Bank, European Bank for Reconstruction and Development), international professional associations (International Bar Association, International Federation of Insolvency Practitioners), and world governance organizations (OECD, U.N. Commission on International Trade Law); and (3) case studies of Indonesia, Korea, and China.
The globalization of law is a negotiated process. Our research on international organizations and case studies of China, Indonesia, and South Korea indicates that negotiation of the global/local relationship varies by the vulnerability of a country to global forces. Nation-states vary (1) in their balance of power vis-à-vis global actors; and (2) in their social and cultural distance from the global. Yet even where the global/local gap is wide and the asymmetry of power is pronounced, local responses to global pressures are negotiated as much as imposed. Negotiating globalization relies on direct and mediated interactions by several types of intermediaries who translate global scripts into four kinds of outcomes. The impact of intermediaries in this process varies by the phase of the reform in which they participate. Finally, globalizing law proceeds through recursive cycles of lawmaking and law implementation.
This research originated from a request that the American Bar Foundation provide information to the Chicago Bar Association's Committee on the Development of the Law in its study of the Association's “role and purpose.” The resulting research by the Foundation is much broader than that originally contemplated in our early conversations with the Committee, and it now constitutes a major study of the Chicago legal profession and its relation to the organizations that represent it A significant part of the study, however, has been addressed to the CBA's concerns, and this article was originally prepared as a report to the Committee. It is being published because we believe that its findings and analyses will be of wider interest. The form of the article remains that of the report to the Committee, though it has been revised for publication.
For international financial institutions (IFIs), it is a continuing puzzle why the global norms they propagate are enacted either reluctantly or not at all. This article shows that failures of enactment and implementation frequently occur because many IFI-initiated law reforms go far beyond changing the law; they amount to a restructuring of the state itself and the accompanying redistributions of power. This article demonstrates how state restructuring can occur in a technical area of commercial law by reanalyzing the ways global and transnational designs of corporate bankruptcy regimes fared between 1998 and 2006 in three countries variously affected by the Asian financial crisis: China, Indonesia, and South Korea. State restructuring occurred by (1) shifting the boundary between the market and state, (2) shifting power inside the state, and (3) vesting new powers in the state. The article identifies the recursive dynamics through which the changes unfolded and shows how variations in the efficacy of international architects of the state can be attributed to the interplay of four sets of factors: the coherence of global norms, the relative power of global versus state actors, domestic demand and mobilization for restructuring, and the extent of state restructuring that reforms will induce.
This paper considers the political role of the organized bar from three perspectives: the historical question of the stance taken by bar associations during the major civil rights debates of the post-World War II period; the sociological question of the extent to which legal associations can act collectively on highly contentious political issues; and the legal question concerning the implications of legal formalism for the politics of the bar. Contrary to the belief that legalism is an inherently conservative means of justifying professional inaction on fundamental issues, the paper argues that in fact legalism may well be the most important basis of intra-professional consensus on those issues as well as the most powerful means by which the profession can influence state and national governments. Legalism can be understood as a common professional idiom which allows mobilization on divisive issues. It can be used in support of both liberal and conservative causes. In this sense, within certain limits, legalism is neutral–an expedient which enables the profession to act politically in circumstances which otherwise would effectively immobilize its collegial associations.
This study considers political structure in bar associations with respect to one central problem: the tension between democracy and oligarchy in the internal politics of bar associations. Drawing on both theoretical and empirical material, the authors outline a series of indicators on which the degree of democracy and oligarchy in the organized bar may be measured and then apply these criteria to the Chicago Bar Association from 1950 through 1974. The authors briefly review writings on the political structure of bar associations in the United States and note relevant theoretical perspectives on the politics of voluntary associations. They distinguish several patterns of oligarchy and democracy and explore the consequences of certain trends for the Chicago Bar Association and other bar associations.
This article reports results of an inquiry into the composition and policies of the leaders of the Chicago Bar Association. The leadership cadre was partitioned into three status groups on the basis of background characteristics and law school attended. Outside educational elites, dominating the board during the early 1950s, pursued policies that defended prestigious areas of legal work from other encroaching professionals and sought to constrain the plaintiff side of the personal injury bar. Local ethnic elites obtained a share of the leadership during the mid-1960s and transformed the judicial politics of the CBA to conform to local Democratic party objectives. At the center of the leadership cadre was a group of local aristocrats, well connected to major corporate and civic organizations, whose participation in the leadership roles fluctuated less dramatically than that of the other groups. A review of policies suggests that the local aristocrats were responsible to some extent for integrating the various specialized projects pursued by disparate segments of the Chicago bar. Detailed examination of the composition and policies of this local bar leads to the conclusion that associations of the legal profession are capable of accommodating diverse interests to an extent not previously measured or assessed.