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United States Legal Assistance, American Legal Models, and Legal Change in the Post-Communist World and Beyond

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United States Legal Assistance, American Legal Models, and Legal Change in the Post-Communist World and Beyond UNIVERSITY OF PENNSYLVANIA JOURNAL OF INTERNATIONAL ECONOMIC LAw Volume 20 Summer 1999 Number 2 ARTICLES LEX AMERICANA?: UNITED STATES LEGAL ASSISTANCE, AMERICAN LEGAL MODELS, AND LEGAL CHANGE IN THE POST-COMMUNIST WORLD AND BEYOND JACQUES DELISLE* 1. INTRODUCTION Asked to provide advice to a Central or Eastern European na- tion drafting its first post-socialist constitution, a prominent American legal academic promptly produces an elaborate manu- script headed "Constitution of the Republic of _ _ " The document is .a form-book charter of economic liberties, liberal rights, democratic governance, and limited governmental powers that awaits only a few strokes of the pen to insert the recipient * Professor of Law, University of Pennsylvania Law School. The author thanks, for their helpful comments, participants in a seminar at the Institute for Advanced Study of the United Nations University (where an earlier ver- sion of this Article was presented) and participants in a session on"importing and exporting legal models," chaired by John Reitz, at the XV International Congress of Comparative Law. The author also thanks Chuck Mooney, Kim Lane Scheppele, Stephen Holmes, and several current and former participants in many o the legal advice projects described in this article for their comments about their experiences with several of the modes of alegal assistance" and "le- gal export" analyzed in this article. Last, but far from the least, the author thanks the staff of theJournalfor heroic work, especially on the footnotes of this article. Published by Penn Law: Legal Scholarship Repository, 2014 U. Pa. Int'l Econ. L. [Vol 20:2 script headed "Constitution of the Republic of ." The document is a form-book charter of economic liberties, liberal rights, democratic governance, and limited governmental powers that awaits only a few strokes of the pen to insert the recipient country's name.1 Half a world away, a young Mongolian official gratefully accepts a stack of documents detailing United States se- curities laws from American experts who are in Ulan Batar on a short visit. He asks the members of the delegation to send him more such materials, also photocopied on one side of the page, af- ter they return home. When the group departs, the Mongolian explains (to another American advisor) that the texts are, of course, of little use in his efforts to craft laws for his country's in- fant equities markets, but that the blank side of the pages will help to alleviate his office's chronic shortage of quality paper.2 These two episodes lie at the unhappy end of a spectrum of contemporary United States efforts to export legal models and provide legal assistance around the world. They represent only very small, and strikingly ineffective, parts of the extraordinarily ambitious and multifaceted drive undertaken or supported by U.S. organizations and individuals to transplant laws and legal ideas and to foster legal reform or development abroad. Al- though in some respects atypical, the anecdotes from Mongolia and the new European republic point to several basic features of the recent career of U.S. legal assistance and export efforts. Both stories reflect common contexts that have framed diverse efforts to promote U.S. legal models and provide U.S. legal assis- tance during the last decade or more. During this period, two de- velopments have accorded the United States a new and uniquely important role in international processes of legal change. First, there has been a "globalization" of economic activity that has taken markets and, to a degree, international openness as its or- See Symposium, Constitutional "Refolution" in the Ex-Communist World- The Rule ofLaw, September 26, 1996, 12 AM. U. J. INT'LL. & POL'Y 45, 118-19 (1997) (providing the remarks of Central and Eastern European Law Initiative (CEELI") Executive Director Mark Ellis); cf BERNARD H. SIEGAN, DRAFTING A CONSTiTUTION FOR A NATION OR REPUBLIc EMERGING INTO FREEDOM, app. I (2d ed. 1994) (setting forth a model constitution for a post- authoritarian republic). 2 See William E. Kovacic, The Competition Policy Entrepreneurand Law Re- form in Formerly Communist and Socialist Countries, 11 AM. U. J. INT'L L. & POL'Y 437, 438 (1996) (relating the anecdote) [hereinafter Kovacic, Competition Policy Entrepreneur]. https://scholarship.law.upenn.edu/jil/vol20/iss2/1 1999] LEXAMERICANA? ganizing principles. Second, the crumbling of state socialism has precipitated a world-wide wave of democratization. These trans- formations have produced a seemingly insatiable appetite for legal and constitutional reforms suited to the new political and eco- nomic orders. The opening of new areas (both geographic and substantive) to American influence, the removal of the principal rivals to U.S. power and American-supported ideologies, and the seemingly sweeping embrace of principles that official and unoffi- cial U.S. actors have seen as congenial (or even as proprietarily American) thus have provided the setting for countless U.S. legal export-promotion and advice-offering activities that have sought to respond to the demands and opportunities of the era. Large or small, successful or embarrassing, such programs and projects almost all have pursued one or more elements of an agenda that has included building multi-party electoral democ- racy, a generally liberal rule of law supported by an independent judiciary and bar, and a legal framework for a market-oriented economy that is generally receptive to international trade and foreign investment. Many of the efforts that have focused on the economic aspects of this agenda have seen market-friendly legal changes as harbingers of- or as dependent upon- changes in more "political" aspects of law. A similar sense of interconnect- edness of aims has characterized many attempts to foster changes in constitutional structure, civil liberties laws, and the like. As the great distance and obvious differences between Ulan Batar and the post-socialist European capital underscore, the scope of such undertakings has been truly global, with major pro- grams- as well as more discrete and less formal activities- target- ing every region of the world except Western Europe, North America, and the most economically advanced nations of East Asia. The U.S. securities law specialists' junket to Mongolia (where another American consultant was present during the copying pa- per incident and later recounted the tale when arguing for a much less "prescriptive" approach to providing U.S. legal assistance) and the American law professor's offer of "remote" constitutional advice (which passed to the new leaders of a European state via an intermediary who himself had been a significant participant in more sustained and structured American programs of legal advice to post-Soviet states) also provide glimpses of the diversity of channels for legal export and assistance. These anecdotes also un- Published by Penn Law: Legal Scholarship Repository, 2014 U. Pa. j. Int'l Econ. L. [Vol120:2 derscore the complicated relationships among U.S. participants in those processes, and the difficulty of defining what counts as a "U.S." legal export or "U.S." assistance. Even more than these Central Asian and Central/Eastern European "snapshots" sug- gest, the connections among U.S. funders and providers (and their relationships with foreign rivals, collaborators and counterparts) have been highly varied and complex. By some standards, many aid and advice projects run or joined by American organizations and individuals might not count as offering "U.S." models or "U.S." views or "U.S." programs. On the other hand, formal or purposive "programs" or "projects" offering "advice" also have not been the only significant media through which Americans and others have been transmitting U.S. legal rules and ideals abroad. As the ill-fated pair of ventures at opposite fringes of the for- mer socialist world illustrate, recent U.S. efforts to influence or implant laws or elements of legal systems abroad have focused as never before on the two regions where globalization and "mar- ketization" in the economic realm and democratization and "con- stitutionalization" in the political realm have had perhaps their most striking impacts, if not always their best results: (1) Central and Eastern Europe ("CEE") and the Newly Independent States ("NIS") of the former Soviet Union, and (2) the People's Repub- lic of China ("P.R.C.") and other reforming socialist or authori- tarian states in its region. As the subject matter of the advice of- fered to the Mongolian law reformer and the CEE nation's constitution-drafters also reflect, formal U.S. programs and less institutionalized projects have addressed an extremely wide range of legal issues related to the broad themes of markets, democrati- zation, and the rule of law. These legal subjects have ranged from questions of economic regulation, to technical training for the makers and implementers of laws to constitutional and quasi- constitutional issues of government structures and individual rights, to the reform of legal education and the promotion of judges' and lawyers' voluntary organizations. The anecdotes from Mongolia and the unnamed European re- public also depict one point on a very wide continuum of types of U.S. advisors and processes for offering U.S. advice. The two sto- ries describe strikingly uninstitutionalized participants who have little knowledge of the recipient countries and who offer highly detailed prescriptions in a "one-off" mode of providing advice. https://scholarship.law.upenn.edu/jil/vol20/iss2/1 1999] LEXAMERICANA? Other programs and projects for exporting U.S. models and ex- tending U.S. legal assistance have been fundamentally different in some or all of these respects. The forms and providers have been as heterogeneous as the efforts' substantive legal foci. The Mongolian and CEE vignettes also remind us that appar- ently promising opportunities may still leave U.S. purveyors of advice and disseminators of U.S.
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