Chemin Eugène-Rigot 2 | CP 1672 - CH-1211 Genève 1 | +41 22 908 57 00 | graduateinstitute.ch MAISON DE LA PAIX
Interdisciplinary Programmes
Academic year 2018-2019
The Law and Policy of Legal and Institutional Reform
MINT127 - Autumn - 6 ECTS Course Description
In contexts of intensive economic development and political transition, marked by sociopolitical conflicts over the direction and distribution of growth and social transformation, the prevailing wisdom says that it is imperative to get the laws and institutions right. Many legal actors, both formal and informal, attempt to define their political role in terms of resolving those conflicts, whether they be criminal sanction, administrative procedure, or economic rights. The ways in which they do so and the nature of the political power which they accrue go a long way towards explaining countries†™ subnational and national political and economic trajectories. As a result, a significant amount of practical attention and money, both domestically and from international donors, is oriented towards legal and institutional reform. Yet we know surprisingly little about how it works in real life - its politics and processes, its drivers and effects, and the roles and responsibilities of its proponents and participants.
This course focuses on the praxis of legal and institutional reform - the legal and political practices it relies on, the laws and policies it produces, and the legal and political dilemmas that its domestic and international participants face. Specifically, in this course we will ask:
What legal arenas - transitional justice, constitution drafting, criminal law, contract law, and so on - do reformers choose to express a political role for themselves? Why do they make those choices, and what impacts do they have?
What tools - judicial independence, case management reform, bar associations, importing standard contractual terms, and so on - do reformers use to assert their political role?
What different imaginaries of the political role of legal institutions - those of judges, donors, politicians, citizens - are at play in these political contests, and how do actors choose to express them?
What are the impacts of these imaginaries and contests on the form of legal institutions and the consequent distribution of resources and power?
We will compare examples across countries as well as across specific moments of transition and practices of reform.
PROFESSOR Deval Desai
deval.desai@graduateinstitute.ch
Office hours
ASSISTANT Bianca Maganza
bianca.maganza@graduateinstitute.ch
Office hours
Syllabus
Assessment
You will be asked to do two written exercises. There will be an essay question assigned at the end of the final class. Essays should be between 3000 and 4000 words, and will be due on 27 December.
This will be worth 40% of your grade.
You will also have to write a short response paper – 1500 to 2000 words - incorporating the readings from at least three classes. This is to be submitted at any point between the end of the third session on October 3, and 2.15pm on December 12. This will be worth 20% of your grade.
Both assignments should be submitted electronically to the Moodle class site through the ad hoc folders provided under the introductory section named “Welcome!”. It is your responsibility to ensure that your computer and internet work properly and submit the assignments on time. No late work will be accepted without prior written agreement.
At points during the class, we will have detailed role-play exercises where you will be asked to consider and debate a specific problem. Groups for the role-plays will be formed at the beginning of the semester. You will not have time to prepare for this prior to the class – it will be a test of your ability to analyze the politics of an institutional reform problem and argue about its merits. Your performance in these role-plays will constitute 25% of your grade.
15% of your grade will be reserved for participation in class. This comprises attendance, as well as your spoken contributions as we discuss the readings and the themes in class. Your regular attendance in class is expected. Absences should be communicated to the TA in advance by email.
Unexcused absences will adversely affect your participation grade.
As you can see, it is essential that you do the readings in advance for each class.
Office Hours
I will hold regular office hours each week on Wednesdays from 16.30-18.00, location TBD. Please sign up using Doodle: https://doodle.com/poll/u9z7hkqzwa7w8idi
For administrative questions or clarifications on assignments, please contact the TA by email.
TA's office hours: Wednesday 10.00 – 12.00 (P1-555) Academic Integrity
The Institute’s academic honesty and integrity policy, and the applicable university disciplinary procedures, apply to all academic work including the taking of examinations and submission of written work. This includes poor citation, plagiarism and resubmission of one’s own work. It is your responsibility to read and understand the guidelines before submitting any assignment. Feel free to ask me any questions you may have about them.
I will conduct plagiarism checks on all written material you submit to me.
I do not mind how you cite materials as long as you use a recognized citation style (Bluebook, OSCOLA, MLA or others).
Other Issues
If you have a special condition that requires accommodation in this course, let me know after class or in office hours as soon as possible. I will be happy to consider appropriate accommodations provided timely notice is received and the arrangement is consistent with the Graduate Institute’s policies.
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Course Sessions
1. Reform?
What do we mean by reform? What is “change”, and why do we think that certain things need changing? How does it happen?
James Scott, The Art of Not Being Governed: An Anarchist History of Upland Southeast Asia (2009), pp. 1-32, 36-39.
Foucault, Michel. 2007. Abnormal: Lectures at the Collège de France, 1974-1975. Picador, pp. 81- 104
James Ferguson, “The anti-politics machine” The Ecologist 24.5 (1994), pp. 194-227.
2. “The” reformer
Who are reformers? What are their political struggles, to what are they responding, and to whom are they accountable?
David Lewis and David Mosse, “Theoretical Approaches to Brokerage and Translation in Development”, in Lewis and Mosse (eds.), Development Brokers and Translators: The Ethnography of Aid and Agencies (2006), pp. 5-20.
Robert Klitgaard, Tropical Gangsters: One Man's Experience with Development and Decadence in Deepest Africa (1990), pp. 1-13.
David Mosse, “Is Good Policy Unimplementable? Reflections on the Ethnography of Aid Policy and Practice” Development and Change 35 (2004), pp. 639–644, 648-662.
3. Justifications for institutional transformation
Why and how do institutions matter to reform “moments”?North, Douglass C., John Joseph Wallis, and Barry R. Weingast. 2009. “Violence and the Rise of Open-Access Orders.” Journal of Democracy 20 (1): 55–68
David Kennedy, “Laws and Developments”, in Law and Development: Facing Complexity in the 21st Century (John Hatchard and Amanda Perry-Kessaris, eds.) (2003), pp. 21-26.
Alice Amsden, The Rise of “The Rest” – Challenges to the West from Late Industrializing Economies (2001), pp. 1-16, 19-28
Dani Rodrik, “Rethinking Growth Strategies”, WIDER Annual Lecture #8 (2004), pp. 4-12
4. Institutional transformation in historical context
Why have institutional reformers thought that institutional change matters?
Benton, Lauren. 2002. Law and Colonial Cultures: Legal Regimes in World History, 1400-1900.
Cambridge University Press. Excerpts
Merryman, John Henry. 1981. “On the Convergence (and Divergence) of the Civil Law and the Common Law.” Stanford Journal of International Law 17: 357
Reimann, Mathias. 2000. “Beyond National Systems: A Comparative Law for the International Age.”
Tulane Law Review 75: 1103, pp. 1115-1119
5. Tools: Institutional diffusion and transplantation
How have institutional reformers thought about the tools they might use? How do they talk about those tools?
Trubek, David M., and Marc Galanter. 1974. “Scholars in Self-Estrangement: Some Reflections on the Crisis in Law and Development Studies in the United States.” Wisconsin Law Review 1974: 1062, pp.
1062-1093
Twining, William. 2004. “Diffusion of Law: A Global Perspective.” The Journal of Legal Pluralism and Unofficial Law 36 (49): 1–45.
La Porta, Rafael, Florencio Lopez-de-Silanes, and Andrei Shleifer. 2008. “The Economic Consequences of Legal Origins.” Journal of Economic Literature 46 (2): 285. Excerpts (pp. 285-93;
302-309; 310-316; 323-326)
6. Tools: Law and justice reform
What specific legal tools do institutional reformers use?
The Economist. 2008. “Order in the Jungle.” The Economist, March 15.
World Bank. 2009. “Initiatives in Justice Reform.” Washington, D.C.: World Bank. Read the introduction plus all the projects for one region of your choice.
Kleinfeld, Rachel. 2012. Advancing the Rule of Law Abroad: Next Generation Reform. Washington, D.C: Carnegie Endowment for International Peace. Read pp. 59-78
7. Role play 1
8. Analyzing institutional reform – success and failure
How do reformers talk about the success and failure of their reforms? To which audiences? What are the political consequences of calling a reform a success or failure? How can we say “what works”?
Merryman, John Henry. 2000. “Law and Development Memoirs I: The Chile Law Program.” The American Journal of Comparative Law 48 (3): 481–99
Hammergren, Linn. 2007. Envisioning Reform: Conceptual and Practical Obstacles to Improving Judicial Performance in Latin America. Penn State Press. Ch. 1.
Dodson, Michael. 2002. “Assessing Judicial Reform in Latin America.” Latin American Research Review 37 (2): 200–220
Fukuyama, Francis. 2010. “Transitions to the Rule of Law.” Journal of Democracy 21 (1): 33–44.
9. Analyzing institutional reform – political and ideological conditions
How do politics and ideology shape the trajectories of reform? Which politics and whose ideology do we need to pay attention to, and how?
Finkel, Jodi. 2005. “Judicial Reform as Insurance Policy: Mexico in the 1990s.” Latin American Politics and Society 47 (1): 87–113. Excerpts
Dezalay, Yves, and Bryant Garth. 2002. The Internationalization of Palace Wars: Lawyers, Economists, and the Contest to Transform Latin American States. Chicago. Excerpts
Kapiszewski, Diana, and Matthew M. Taylor. 2008. “Doing Courts Justice? Studying Judicial Politics in Latin America.” Perspectives on Politics 6 (4): 741–67. Excerpts
10. Role play 2
11. Case study: liberalism and authoritarianism
Tate, C. Neal, and Torbjorn Vallinder. 1995. The Global Expansion of Judicial Power. NYU Press. Ch.
1.
Dobson, William J. 2013. The Dictator’s Learning Curve: Inside the Global Battle for Democracy.
Reprint edition. New York: Anchor. Ch. 1 (“Introduction”)
Scheppele, Kim Lane. 2016. Worst Practices and the Transnational Legal Order (or How to Build a Constitutional ‘Democratorship’ in Plain Sight),” forthcoming in the UCI Journal of International, Transnational and Comparative Law. Excerpts
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12. Case study: Conflict
Thier, J. Alexander. 2006. “Making of a Constitution in Afghanistan, The.” New York Law School Law Review 51: 557
Drumbl, Mark A. 2005. “Law and Atrocity: Settling Accounts in Rwanda.” Ohio Northern University Law Review 31: 41
Thomson, Susan, and Rosemary Nagy. 2011. “Law, Power and Justice: What Legalism Fails to Address in the Functioning of Rwanda’s Gacaca Courts.” International Journal of Transitional Justice 5 (1): 11–30.
13. Role play 3 14. Where to begin?
State Builders (Dir. Anne Poiret and Florence Martin-Kessler, 2013)
