Comparative urban governance for lawyers.

• Author: Nicola, Fernanda G.

Introduction I. Comparing Local Governance in a Global World A. Comparative Law Praxis B. Situating Cities in the Global Economic and Legal Order C. Legal Reform and International Development II. From Functionalism to Legal Formants A. Functionalism 101: Kushner's Institutional Corruption B. Legal Formants at Work: Global Cities' Bike Share Plans III. Contextualism and Expressivism in Comparative Urban Governance IV. International Local Governance in Action Conclusion INTRODUCTION

As rates of urbanization continue to rise in cities around the world, there is a marked convergence in both the opportunities and challenges for cities accompanying this trend. Much as economic globalization has made cities into central players in the world economy, (1) so too has urbanization rendered cities key sites for the advancement of social and economic development policy. (2) Sustainable development and adaptation to climate change, among other challenges, necessitate that cities and metropolitan regions invent nimble approaches to a variety of local policies and practices, such as land-use planning and zoning, housing, transportation, and service delivery arrangements. As such, policymakers and scholars in every part of the world have begun to look abroad for new ideas and models to govern their cities as they grapple with changing fiscal realities and increasing rates of urbanization.

As urban scholars, local officials, and policymakers engage in cross-national comparisons to assess different urban governance and planning models, a number of pertinent questions quickly rise to the surface. How can some cities' experiences guide and enrich our understanding of what cities in other parts of the world should or should not do? What is the relevance of these comparisons in determining what type of economic development agenda is more suitable to a specific political and economic environment? How can interdisciplinary tools be utilized to establish some entry points for cross-national comparisons? What are the limitations of cross-national comparisons given the ways in which most local governments around the world are constrained within a vertical system of legal hierarchy?

Comparative legal scholars have long grappled with similar questions and have developed methodological frameworks and hypotheses to help us understand why some legal rules and institutions travel and others do not, and to determine when it is desirable for some legal regimes to converge and for others to remain divergent. Even though economic globalization has shaped the ways in which cities are governed, local government legal scholars have only recently begun to contribute to the growing field of Comparative Urban Governance (CUG), which has largely been dominated by comparative political theorists, urban planners, and economists committed to best practices for urban growth and modernization. (3) Importantly, local government legal scholars have identified and analyzed the emergence of cities, including transnational networks of cities, as critical actors on the international legal stage, shaping global legal norms and the implementation of international laws around the world. (4) However, comparative analysis by legal scholars (and practitioners) of similar legal rules and policies adopted by cities around the world, although not uncommon, most often fail to really engage methodological questions underlying such comparisons.

This introductory essay begins to fill what we perceive as a prominent gap existing in the local government and comparative law literature. The task to compare local government law is not only daunting because of the extreme variation among local governments, but also because there is the perception that such comparison is of lesser relevance when comparative legal scholars have traditionally focused on states, constitutions, or geographic regions. Indeed, comparing the policies and practices of local governments may very well require its own mode of analysis. In undertaking this project, we realize that the relevant methodological insights for lawyers and scholars approaching CUG derive from various legal disciplines. In particular, there are at least three legal fields that offer insights, as well as illuminate shortcomings, for those who engage in CUG: local government law, comparative law, and the law of international economic development.

This introductory essay explains the relationship between CUG and these distinct legal fields through the rich contributions that were developed for a joint session of the Sections on State and Local Government and Comparative Law on CUG, organized by the authors of this Introduction, for the 2014 Annual Meeting of the American Association of Law Schools. Each Article offers an innovative and thoughtful approach that links different strands of local government law, comparative law, and international economic development scholarship, while offering a rich menu for urban reformers committed to rethinking sustainability and democratic inclusion as integral parts of economic development strategies for cities. Combined with the Articles collected in this volume, our aim is to sketch out a methodological framework for lawyers and legal scholars seeking to understand or contribute to this growing field of expertise.

The essay proceeds as follows: In Part I, we bring together a number of insights from scholars writing in three disparate but, for our purposes, intersecting fields, as we tease apart what might be unique about comparing the policies and practices of local governments, particularly city governments. This Part sketches an outline of a methodological framework for CUG, drawing attention to the analytical tools we believe are essential for lawyers and legal scholars. Parts II to IV review the Articles written for this symposium to illustrate how each of the authors employs the tools within our framework in their study of urban policies and practices that migrate across national borders. Finally, we end the essay by musing on the important role that lawyers and legal scholars can play in the field of CUG.

1. COMPARING LOCAL GOVERNANCE IN A GLOBAL WORLD

   This symposium uses insights from strands of scholarship in comparative law, local government law, and law and development as a starting point to carve out a space for lawyers to engage in CUG. This entails mapping a methodology or a blueprint to compare the competing "legal formants"--the various actors and contexts--at work in different local government regimes, and analyzing the political, economic, and social stakes underlying each local regime.

   1. Comparative Law Praxis

      Legal scholars engaging in comparative analysis of legal rules and policies adopted by cities to address urban challenges tend to adopt one of two approaches. They analyze the impact of globalization on local government regimes typically through either a convergenist or divergenist approach. (5) Work of scholars like James Kushner, a contributor to this symposium and author of a major textbook on Comparative Urban Planning Law, is characterized by a prescriptive impulse in finding common policies, or best practices, which can be used to solve similar local problems. (6) Other urban scholars, on the other hand, acknowledge the diversity and fragmentation of local government rules and practices under the pressure of economic globalization and/or historical and geographical path dependencies. (7)

      Comparative legal scholars have largely tread this analytical terrain, although the tension between convergence and divergence remains central to the discipline. Nevertheless, over time comparative scholars have developed methods and ambitions that have led to important insights into these and other methodological questions.

      Since the beginning of the twentieth century, comparative lawyers perceived their role as actors and promoters of social change with varying degrees of awareness of their actual involvement in governance and politics. However, by the mid-century, functionalist comparative scholars began showing a discomfort with politics that altered the value of their seemingly neutral scientific approach. (8) In other words, at this point comparative law scholarship had become largely insulated from the power struggles and the socio-economic tensions embedded in questions of lawmaking. Some of the most resilient concepts in the field were developed around this time--such as Rene David's idea of "legal families;" (9) Konrad Zweigert and Hein Kotz's functional assessments of doctrinal and institutional differences and similarities between legal regimes; (10) and Alan Watson's now widespread theory of "Legal Transplants." (11) All these were presented as products of scientific comparative law knowledge operating within a deductive doctrinal framework and having little to do with changes in societies, as if the legal profession was insulated from the real world.

      Since the 1990s, critical theory scholars have called upon comparative lawyers to regain confidence in the realm of politics, and to openly acknowledge the professional and academic commitments that underlie their efforts. (12) As a result, some comparative lawyers rejected or called impossible the notion of legal transplants, (13) while others replaced this notion with better-articulated concepts of 'migration of ideas' (14) or 'legal diffusion.' (15) In dismantling the fiction of legal families, for example, Jorge Esquirol effectively demonstrates how this notion produced and consolidated standard images in the law that bear no resemblance to reality but instead carry an ethnocentric bias. For instance, the creation of Latin American law ended up using one country's legal system to generalize about the whole of the region. (16) Moreover, western-centrism embodied the assumption that certain institutions and procedures are preferable to the failed local ones that should be continuously reformed. (17)

      With the...