May 3 2011

Legal innovation is hot – and in short supply. American lawyers are being told that the use-by date for their legal services model has passed. The era of ‘big law’ is over; comfortable, secure legal jobs are about to vanish.

This wasn’t how it was supposed to be. Legal professionals are supposed to be reflexive and adaptive. But as Gillian Hadfield asks, where are the “garage guys” of law?] When will law’s Silicon Valley moment arrive?

Perhaps it has – but the guys (and girls) are organizing refugee status claims for UNHCR in Pakistan, rolling out land tenure systems in East Timor and opening legal clinics for the rural poor in China. Rule of law promotion work is attracting local and foreign expatriate lawyers into a new, under-researched field. The work seems meaningful, plentiful and relatively well-paid. It certainly beats logging time on legal billing software at home. The settings are exotic, the challenges are many, but is rule of law promotion innovative? Is this the legal profession’s new new thing?

An important new CGD paper by Pritchett, Woolcock and Andrews (PWA) suggests not.

But not for the reasons you might expect.

PWA argue that many low income and fragile states are caught in a ‘state capability trap’. Using a range of data, they put Afghanistan and Haiti not decades, but hundreds of years behind Singapore. The donor response is ‘capacity building’ in governance, public administration - and rule of law - usually by copying proven institutional models from abroad. Two serious side effects follow. One is ‘isomorphic mimicry’: recipient states and organizations adopt ‘modern’ forms or ‘best practice’– and pretend that they function in the new environment. The other is ‘premature load bearing’ – the new reform stresses the recipient system to the point of dysfunction, pushing it backwards, not forwards.

“Who are these naïve purveyors of advanced country cut-and-paste templates, best practices and toolkits?” I hear you ask. That would be us. Hands up anyone innocent of trawling their iPad in search of a legal reform precedent - the blueprint, log frame or best practice for creating/implementing/assessing police training, independent bar associations, public defenders, paralegals, codes of judicial conduct, human rights enforcement, access to justice strategy, legal aid clinic or [insert your favorite ‘modern’ legal institution here].

The PWA analysis is challenging for rule of law promotion on two counts. When we rely on ‘old lawyering’ - fungible, easily replicable designs and standardized ‘tools’, we are potentially cheating local recipients of innovative services that might better meet actual needs. In the longer term, even as we grow a new field of practice, we may also be planting the seeds of our own legal professional obsolescence.