Law and development as anti-comparative law.

• Author: Kroncke, Jedidiah

ABSTRACT

This Article asserts that during the twentieth century, American law has predominantly structured its relationship to foreign legal experience through a set of ideas and practices known as "law and development," which is irredeemably antithetical to the practice of comparative law. Centrally, law and development is built on the assumption that American law can be exported abroad to catalyze foreign legal development. The dismal record of such efforts has remained paradoxically popular while the field remains locked in repeating cycles of failure and optimism.

This Article demonstrates that the history of law and development's failures is far older than has been traditionally recognized, and dates back to the turn of the twentieth century. In this era, foreign reform became a key part of the professional image of the modern American lawyer. At the same time, the origins of law and development were intimately tied to the decline of comparative law in American legal culture. This history reveals that the paradox of law and development's contemporary popularity can only be understood by recognizing the cultural politics that these developments embedded in the American legal community. The troubling legacy of this widely entrenched view of America as solely an exporter of legal knowledge presents pressing liabilities for American law, both internationally and domestically, on the competitive terrain of the twenty-first century.

This Article concludes that in order to address these liabilities, America should categorically abandon law and development and should fundamentally reorient its relationship to foreign legal experience through a self-interested practice of comparative law. As exemplified in the debate over judicial citation of foreign precedents, this shift will require basic changes in how American legislative and administrative bodies relate to foreign law, as well as the place of comparative law in American law schools. Such a reorientation will enable America to strategically perceive foreign legal developments and, most critically, productively adapt foreign legal experience as an energizing stimulant to our own legal innovation.

TABLE OF CONTENTS I. INTRODUCTION II. THE PARADOXES OF A HISTORY WHOSE LESSONS CANNOT BE LEARNED A. Defining Law and Development B. The Unending Synergy of Critique and Optimism C. The Persistent Cycles of Contemporary Law and Development III. THE ORIGINS OF LAW AND DEVELOPMENT AS ANTI-COMPARATIVE LAW A. The Early Twentieth Century Birth of Law and Development B. America's First Wave of Law and Development Goes Global C. The Cultural Politics of Law and Development IV. THE INTERNATIONAL LIABILITIES OF LAW AND DEVELOPMENT'S MIRRORED LENS A. Accepting the Limits of American Legal Expertise Abroad B. Authoritarianism and Recognizing Unintended Consequences C. Blinding Reformers, Blinding Ourselves V. THE DOMESTIC LIABILITIES OF ANTI-COMPARATIVISM A. Ignoring Foreign Legal Experience in an Age of Common Legal Problems B. Foreign Citation and the Legacy of Anti-Comparativism C. Abandoning Law and Development, Reviving Comparative Law VI. CONCLUSION I. INTRODUCTION

Throughout the past decade, an increasing amount of energy has been devoted to debates over the role of "foreign law" in the American legal system. In both public and academic circles, these debates have primarily focused on the appropriateness of judicial citation to foreign precedents or the enforcement of foreign law in contracts or arbitral arrangements. (1) These debates have generated a great deal of heat, but little in the realm of practical lawmaking--displaying more the characteristics of identity politics than serious inquiry. Moreover, in this furor, the actual state of comparative law in America has been elided more often than not.

Consider how the average American lawyer, or even average American citizen, interacts with and thinks about foreign legal systems. Is it through recounting the foreign influences that shaped early American legal thinking? Is it through public debate on the utility of foreign legal innovations or their relationship to our particular set of legal values and commitments? Or is it instead through the recounting of the inefficiencies of rival industrialized nations and the injustices of those systems deemed "developing?" From bar association programs to law school colloquia, American lawyers are consistently presented with the infirmities of foreign law--even in our own times of domestic crisis--and American citizens are inundated with a mythologized past and noble present of Americans working privately and publicly to reshape foreign legal systems.

Thus, in contrast to even the most cosmopolitan sentiments expressed in American law today, the intellectual and attitudinal terms on which American lawyers and legal institutions relate to most foreign legal systems are dominated by what has come over the past half-century to be known as "law and development." Although not without its own internal diversity, law and development is built upon the deeply ingrained notion that America is solely an exporter of legal knowledge and, further, that American lawyers and legal institutions can be the altruistic catalysts of positive legal development abroad. (2) The panoply of American private and public international legal reform projects is the most pervasive driver by which assumptions about foreign legal systems have been shaped and sustained for the modern American lawyer. (3)

This Article demonstrates that beyond the relatively narrow terms of current debates about foreign law in America, the persistence of law and development has directly led to the marginalization of American comparative law in the past century. In the most direct sense, law and development operates as a form of anti-comparative law in American legal culture. The very methodological and conceptual struggles with which comparative lawyers grapple form the exact, nonrevisable presumptions of law and development as an applied field of legal action--from the intimacy of law and politics to the complexities of legal change. Furthermore, the history of law and development is far longer and more problematic than is generally acknowledged. Not only was the rise of law and development in the early twentieth century intertwined with the general decline of comparative law, but at the time, its rise stood in stark contrast to our relative pre-twentieth century legal cosmopolitanism.

Although evaluated by sometimes searching external and internal critiques, law and development has shown an inability to learn from its own history and to transcend the presumptions inherent in the idea of America as an exporter of legal knowledge. Throughout the twentieth century, American legal reform efforts abroad have consistently failed to justify their continued popularity, with perhaps the worst record within the already dismal record of international development efforts more broadly. Even today, when there is a rhetorical convergence across the globe regarding legal ideals such as the rule of law, spare empirical evidence exists to substantiate any consistent or predictable impact of American reform efforts on foreign legal development. As this Article ultimately concludes, law and development and its persistent popularity is best understood not as a critical field of inquiry and action, but as a form of cultural identity polities.

Yet, throughout the twentieth century and continuing today, even those who have held themselves out as cosmopolitan promoters of foreign law in America consistently, if not enthusiastically, participate in efforts to shape foreign legal development that reinforce the parochial attitudes they seek to combat domestically. Current debates only hint indirectly at the serious present and future liabilities that the persistence of law and development presents for the American legal community, which subsume but go far beyond current concerns over foreign law in American legal culture. (4) The consequences of law and development as anti-comparative law are increasingly felt both internationally in our inability to strategically evaluate foreign legal developments, and more significantly in our domestic inability to productively utilize foreign legal experience. Even at the most routine and technical levels where American lawyers increasingly encounter foreign law in this global age, the concerns of law and development are at best orthogonal, and at worst countervailing.

These liabilities are relevant to any debate over the place of America in the shifting tides of global politics. Just as the global order shifted in our favor over the course of the twentieth century, it is shifting again in the twenty-first century toward greater parity and competition. The shrinking terms of twentieth century geopolitics reached their apex in the brief unipolar American moment of the post-Cold War decade, but they have quickly expanded into an increasingly multi-polar order in which America's place is now uncertain. Consider not only China, but the rising prominence of countries including India, Brazil, and Russia, and it becomes plain that in the twenty-first century, we can no longer afford to hold onto the same stagnating twentieth century attitudes about our inherent legal superiority.

Thirty years ago, comparative law legend Eric Stein declared, "[T]he time has come for the American institutions concerned with law revision and for the legislatures at the state and federal levels to institutionalize and make systematic the study of foreign legal solutions." (5) Comparative lawyers like Stein have long chastised American presumptions about foreign legal knowledge and warned that such conceit would eventually undermine our competitive position. (6) Such warnings continue to go unheeded.

To substantiate the claim that law and development is a form of anti-comparative law, this Article proceeds as follows. Part II...