A critique on Report by UN Commission for the Legal Empowerment of the Poor

Stephen Golub (a Law and Development colleague also affiliated with The Asia Foundation) recently published a critique of the Report by the UN Commission on Legal Empowerment of the Poor. Many of his critiques resonant with my own responses to the report, and he goes deeper and broader in his article. Published online by Cambridge University Press 10 Mar 2009, in the Hague Journal on the Rule of Law, Stephen Golub article is aptly titled, "The Commission on Legal Empowerment of the Poor: One Big Step Forward and A Few Steps Back for Development Policy and Practice".

A brief summary of some of his main criticisms (which are also based on three other articles):

• takes as its starting point the widely questioned and somewhat unproven ideas of Commission co-chair Hernando de Soto;
• accordingly attaches excessive importance to legal exclusion and downplays the many other legal and non-legal factors that perpetuate poverty;
• ignores prior research and experience that take broader though more modest views of legal empowerment;
• pays inadequate attention to gender;
• proposes a top-down approach to what it nevertheless claims is bottom-up development;
• implies that rational persuasion trumps political power and self-interest; and
• adopts often inconsistent assumptions and recommendations

However, Stephen does give credit to the UN, and proposes a focus on lessons learned and channel funding to locally based NGOs:  

The Commission on Legal Empowerment of the Poor has made a considerable

contribution to the international development community by focusing attention

on concrete legal needs of impoverished populations. As such, it constitutes a fine

start for international, regional and domestic efforts to pull together a legal em-

powerment agenda... 

Going forward, it is important to build on the Commission’s good start, but de-

part from its false and even counterproductive steps; the international community

should instead draw on successful country-specific legal empowerment experience

from diverse contexts. This features increased investment in civil society efforts to

make the rule of law a reality, since such initiatives have a better track record than

government-centered programs that mainly rely on elite good will. It more specifi-

cally involves enhanced long-term funding for domestic and international NGO

efforts, both in the form of legal services for the disadvantaged and by integrating

such services into broader socioeconomic development programs. The interna-

tional community should also support impact-oriented applied research and move

toward establishing a Millennium Development Goal for legal empowerment

Ode magazine article on Patricia van Nispen and Microjustice in Bolivia

WOW! I'm soooo happy to hear from a friend and colleague of Ode's article of microjustice!!! Not surprising, since Ode was founded in the Netherlands by its two journatlist founders-Jurriaan Kamp and Helene de Puy. Dubbed the magazine for 'Intelligent Optimists', Ode serves to counter the current news culture by delivering only positive news, in particular, about people and ideas that change the world. From Ode's website, the vision was to "create an alternative to mainstream publications, a magazine that was open to new inspirations and new visions from around the world." While Ode was published in Dutch for the first nine years of its existence, Kamp and de Puy, who are partners in marriage as well as in publishing, moved to the San Francisco Bay Area in 2004 to launch the English-language edition of the magazine.

Anyway, enough about Ode (which by itself deserves high marks for innovation and positivity!).  I wanted to point to an article about Patricia and Microjustice Bolivia (update: the aticle is now live online. I urge you read and inject a smile to your day!

Regional Dialogue on Legal Empowerment of the Poor – Bangkok, Thailand 3-5 March 2009

I was not able to attend the Regional Dialogue in Bangkok last month, but I  ame across these Draft Talking Points for Olav Kjørven, UNDP BDP Director and Assistant Administrator:


Summary:

• UNDP has long been engaged in supporting national partners in issues that are substantively related to legal empowerment, such as access to justice, gender, land related reforms, income generation, public administration etc. Recently, we did a mapping of our activities and found that there were 55 active projects in 33 countries, which has broad legal empowerment objectives. This is very encouraging and we are excited to learn that the largest projects are in Indonesia, China and India.

• These projects, and many before them, offer us a good foundation of knowledge and practical experience to promote the legal empowerment agenda.

• Legal empowerment is an inherently complex issue which cannot be accomplished overnight. There is no short cut and there is no alternative to strong national ownership. A regional dialogue, such as this one, can help us not only a common regional understanding of the issue, but also pave the way for national ownership.

• Encourage the participants to use this opportunity to identify the legal empowerment challenges that are most relevant to the region and possible priority areas for action.

• Wish a very productive round of discussions on legal empowerment of the poor.

Greetings
• Thank the Regional Director and the Regional Center team for organizing the regional dialogue on legal empowerment of the poor. Thank the Government of Thailand (if a senior representative is present at the opening session) for its support and interest in legal empowerment.
• Welcome UN Resident Coordinators, UNDP Country Directors as well as government and civil society representatives to the regional dialogue.

Setting the stage
• Recall that exactly 9 months ago, on 3rd June 2008, the Commission on Legal Empowerment of the Poor – a group of eminent academics, the former heads of state from North and South, Supreme Court Justices, representatives of Civil Society and Private Sector - presented its landmark report, Making the Law Work for everyone
• The report argues that an estimated four billion people, the majority of the world’s population, are excluded from the protections of a functioning legal system and are denied equal opportunity to better their livelihoods.
• Legal Empowerment of the Poor encompasses a broad and holistic agenda that recognizes the complexity of society and at the same time the extraordinary potentials of the poor people.
• Anchored in four pillars – Access to Justice, Property Rights, Labor Rights and Business Rights, legal empowerment presents a new approach and focus on human development and human rights as well as achieving the Millennium Development Goals. Moreover, it gives us the innovative tools and approaches that tackle structural problems of exclusion and informality.
• UNDP has been proud and honored to host such a high-profile Commission and to facilitate its work both administratively and substantively since its establishment in 2005. In fact, many UNDP Country Offices, Regional Bureaux and Centers played an important role in organizing national consultations which the Commission undertook in 22 countries around the world, 6 of which were in Asia.
• Although UNDP was closely engaged in the work of the Commission, it is important to recognize that Making the Law work for everyone is the report of an independent global Commission, and is not a UNDP report. As such, we do not necessarily have to agree to all of its recommendations and conclusions, and of course we should recognize that the problems of exclusion and informality are different in different parts of the world. UNDP has, however, taken up the mission to implement some of the key recommendations of the Commission to strengthen and complement its on-going efforts for poverty eradication and human development. UNDP’s strategic plan serves as a guiding document for our global programme and country-level work on legal empowerment of the poor.

UNDP and Legal Empowerment of the Poor
• Legal Empowerment of the Poor is a critical agenda for UNDP not least because it proposes an alternative route to development focusing on the link between exclusion, poverty and the law. Anchored in UNDP’s Strategic Plan, legal empowerment of the poor aims to build on, and maximize on the synergies between, capacity development, inclusive growth, and democratic as well as economic governance.
• Legal empowerment is impossible when de jure or de facto, poor people are denied access to a well functioning justice system. Hence, the commitment of the state and public institutions to address these issues and to ensure equal access to justice is critical.
• Similarly, it is important to have efficient system of governance of individual and collective property rights, which integrates the extralegal economy into the formal one and makes it possible for the poor, for instance, to use property to obtain credit and to improve livelihoods. By the same token, labor is not a commodity but is the greatest asset of poor people, which needs to be recognized and effectively protected. Access to basic financial services and protections, the ability to make deals, enter into contracts and acquire or transfer ownership is indispensable for supporting local entrepreneurship. Way too often, the poor are denied these basic entitlements – which are often taken for granted in developed countries.
• By making the law work for everyone, legal empowerment embodies a bottom-up approach to law and development to create enabling conditions for doing business and reaping economic opportunities.
• Legal empowerment, to say the least, has strong links to UNDP’s capacity development approach, which particularly focuses on supporting capacities at individual, institutional and societal levels. Obviously, effective legal empowerment requires that the state is able and willing to understand and also to respond to the grievances aired by the poor and the excluded members of the society. It is, therefore, an imperative that the society as a whole recognizes and nurtures a closer and equitable link between the citizens and the state.
• In this regard, participation and inclusiveness are critical for the realization of legal empowerment as without a broad national ownership laws and regulations will not take root, and institutions will not reach population they are designed to serve.

Legal Empowerment at global and regional level
• The UN General Assembly in December last year unanimously adopted a resolution on legal empowerment of the poor and eradication of poverty, which was co-sponsored by more than 50 member states, among them the Philippines and Indonesia, which are present here.
• The resolution stresses the importance of sharing best national practices in legal empowerment and requests the Secretary General to present a report to the General Assembly at its next session. UNDP will play an important role in preparation of the SG report, and the outcomes of our consultations here in Bangkok will definitely feed into the bigger picture.
• At the regional level, legal empowerment is also gaining its prominence. Our dialogue here in Bangkok is an excellent example.
• Further, the recently held summit of the African Union discussed legal empowerment in the African context, and is considering UNDP as a key partner in implementing legal empowerment in many African countries. A special launch of legal empowerment initiatives, and a regional dialogue, will take place in Benin in April, bringing together representatives from 21 francophone African countries.
• A number of initiatives are taking place in Europe, and a similar regional consultation is planned for the Europe and CIS region.
• Besides engaging in various international and regional forums and generating strong political commitment to legal empowerment, UNDP is forging partnerships with a wide range of potential partners, including international agencies, the private sector and civil society organizations to promote this important agenda.
• For example, UNDP is further strengthening its collaboration with the Institute for Liberty and Democracy, the leading organization which provides diagnostics of informality and policy reforms in the area of property and business rights.
• Recently, Open Society Institute and Soros’ Foundation expressed interest to support legal empowerment, particularly focusing on grassroots level engagement for legal empowerment.
• Discussions with: CIVICUS, Slum Dwellers International, World Conference of Religions for Peace, The Huairou Commission, a global coalition for grassroots women’s organizations; Baker and McKenzie and Lex Mundi, the world’s leading law firms –are all eager to contribute to the promotion of legal empowerment.
• Last but not least, even though the commission on legal empowerment is now closed, the members of the Commission are actively promoting and supporting the agenda around the globe in their personal capacities.

Summary of "The End of Lawyers?" webcast by Richard Susskind 4/22

Following Richard Susskind's presentation at Harvard yesterday, I summarized some of his observations on the disruption of technology on the legal industry. I'm sure some traditional laywers, if they have watched it, would be rolling their eyes. Most of his points really have already happened or are already happening in other professional fields (all adopting and adapting at different rates, depending on how flexible the particular industry is, and definitely spearheaded by the IT industry.) Law of course, as part of its historical culture, is one of the slowest to change. You can view the hour-long webcast through http://cyber.law.harvard.edu/events/lawlab/2009/04/susskind. 


Below is my summary of his presentation:


1. Starting Point needs to change to: "What do Clients Need?" 

• -This should be the starting question, which is more crucial as current technologies continue to disrupt current patterns of consumption. Lawyers, as a unique breed within the service industry, seldom ask what the client needs- we tend to do things as they have been done, through tradition. However, to cope with the fast changing world right now, this is a critical question, and a starting point for responding. 

• Clients:
• Need our "knowledge"- in particular, structured, not haphazard
• DO NOT need one on one interaction per se
• Find us too reactive: they don't want problem solving, they want to PREVENT the problem in the first place ("legal risk management)
• Want more for less: less expensive, better knowledge, better service

2. Technology's Role and 10 disruptive legal technologies to watch for:

• IT in legal world has two related impacts:
• AUTOMATION- doing current things more efficiently
• INNOVATION- different way of doing things, new way of delivering service

• Lawyers, to the extent that they do, are focusing on the first, but the real impact will be via the second. 

• Ten Disruptive Tecnologies
• closed client communities
• sharing of knowledge peer to peer
• online dispute resolution
• embedded legal knowledge into processes (eg legal compliance built into current systems)
• e-legal market place (e-surance, price comparison)
• expert vs. routine work: new ways of outsourcing the routine
• access to law will change from the traditional Rolls Royce, one on one model via:
• document assembly
• online legal advice
• open sourcing of legal materials
• communities of experience
• FAQs, flow charts, decision trees

3. How should individual lawyers change? (= Learn from medical and other fields already learning to cope)

• Outsource the routine!
• Deliver service through the internet
• Focus on issues that need deep expertise, complex communication
• Notice that in all areas direct contact will decrease
• Learn hybrid, multidisciplinary skills: eg
• legal project manager
• legal risk manager

4. How should the law business change?

• Continue to increase efficiency through automation, but more importantly, through innovation. We do much routine/repetivitve legal work repeatedly, and at high costs. Let's think about new ways to be efficient, and perhaps thinking about the ways that clients can collectively share the costs so that cost per transaction decreases. 

• Legal practice will have to transform, catch up with IT, and think about business possibilities: eg Online community, IM, blogging, mass collaboration, social networking, twitter, virtual pets

• Think of legal service like assembly line, do multi-sourcing (farm each task out to most efficient source, includes IT) (Note: "The Singularity is Near" predicts that by 2020, average desktop machine will have processing power of human brain, by 2050 more than all of humanity)

• Some possible business models follows, ranging in a spectrum from traditional one on one (high transaction cost) to full commotization (off the shelf, low cost). 
• Customized solutions (one-on-one traditional way of doing law)
• Standardized solutions, for example:
• process- checklist, manuals, methodologies, pre-articulate the steps
• substance- templates, standard form documents, precedents
• Systemization- more automatic standardization
• automatic document (answer a series of questions on software)
• automatic workflow
• Package knowledge
• provide software to clients (via license), eg tax software by deloitte
• Full commodotization
• remembering that law information, craeting an 'information world' online service
• creating more open competition: more than one law firm offering service in one marketplace
• Advantages as we move this listed spectrum:
• Note marginal costs of delivery reduce 
• Easier to fixed fee (hourly billing not attractive to clients)
• Cheaper
• Quality

Guide to Website Design for Paliaments

Websites (external) should only be one part of an integrated information and communication system for legal bodies. Other ICT tools might include: social networking sites, mobile phones and SMS/web applications, TV and radio, phones (such as an infoline) and of course good old print materials.In addition, websites (like an intranet) and these other tools can be used for internal information and communication as well.

On external websites, the Global Centre for ICT in Parliament, a project of the Inter-Parliamentary Union and the United Nations Department of Economic and Social Affairs, has updated their "Guidelines for Parliamentary Websites"  The document has a full copyright with all rights reserved, so I'm not at liberty to reproduce any part of the report. (I wonder why? For the mission of the Centre, it would have been better to be able to share this freely under a Creative Commons license.)  While its titles specifies the websites of Parliaments, the guidelines can be adapted for the other two branches of government - the executive and (less so) the judiciary.

Aside from recommending open standards like XML, the guidelines point more to design than web development (referring to the technology itself). It does not talk about security layers, the use of CMSs, best tools for development, etc. Rather it talks about content, functionality, accessibility and oversight, using the following framework and suggestions. Read "Guidelines for Parliamentary Websites" for details of each suggestion.

CONTENT:

General Information about Parliament

• Access to parliament 
• History and role 
• Functions, composition, and activities
• Elected leaders
• Parliamentary committees, commissions,and other non-plenary bodies 
• Members of parliament 
• Political parties in parliament
  Elections and electoral systems
  Administration of parliament
  Publications, documents, and information services
• General links to websites 

 

General information about legislative, budget, and oversight activities

• Legislation 
• Budget/Public Financing 
• Oversight (Scrutiny) 
• Activities of committees, commissions, and other non-plenary bodies
• Plenary activities and documentation 

FUNCTIONALITY

Finding, Receiving, and Viewing Information

• Search engine 
• Broadcasting and webcasting 
• Alerting services 
• Mobile services 
• Security and authentication 

Communication and Dialogue with Citizens

• General feedback 
• Communication between members and citizens 

USABILITY

• Usability
• Accessibilit
• Languages 
• General design elements 

MANAGEMENT

• Authority and support 
• Strategic vision and planning 
• Roles, responsibilities, and coordination 
• Management of documentation and information 
• Promotion 

Berkman Center Series: Law for a Flat World 12 April 2009

Law for a Flat World: Building Legal Infrastructure for the New Economy

Opening up the mechanisms for producing law and legal inputs to a greater role for market-based solutions is a central challenge for legal infrastructure development in the 21st century. Gillian Hadfield, professor of law and economics at the University of Southern California, talks about how and why our legal infrastructure is outdated and ill-suited to the new economy, and what we can do about it.