David Wilkins on globalization, lawyers and emerging economies

David Wilkins ’80, vice dean for Global Initiatives on the Legal Profession, Lester Kissel Professor of Law, and faculty director of the Center on the Legal Profession (CLP) at Harvard Law School, recently sat down to discuss CLP’s project on Globalization Lawyers and Emerging Economies (GLEE)–how it is structured, what questions it aims to answer, recent research, and what lies ahead for the innovative program. CLP launched the GLEE project in 2011 as a major multinational and multidisciplinary empirical research initiative aimed at understanding the changing dynamics of the global legal profession.

What is the project on Globalization, Lawyers, and Emerging Economies?

The project on Globalization Lawyers and Emerging Economies—or GLEE as we like to call it—is designed to conduct original, empirical research and to examine how globalization is reshaping the market for legal services in important emerging economies around the world. At its core, the GLEE project begins with the decision by critical emerging econo­mies like India, Brazil, and China to gradually open their economies during the 1990s, resulting for the first time in signifi­cant foreign investment, privatization of important state-owned assets, and an increased role for competitive market forces. This new economic activity in turn created a demand for new laws and legal institutions—for instance, investment and securities laws, trade and competition authori­ties—which then created a demand for “new” lawyers with both the skill and orientation to operate in these legal domains and to connect these domestic legal fields to the global ones within which these emerging powers operate and increasingly seek to control.

As a result of these changes, India and other emerging economies have seen the emergence of a new “corporate” legal sector consisting of large law firms and increasingly sophisticated in-house legal departments that together seek to meet the legal needs both of a burgeoning business sector and of the growing number of global companies that seek to serve the domestic market. GLEE maps the terrain of this emerging “corporate hemisphere” of the bar, and exam­ines how this sector is influencing—and being influenced by—other parts of the legal, economic, political, and social order in these countries, including legal education, competing elites and priorities within the bar, regulation, development strategies, and approaches to access to justice and the rule of law. GLEE studies how these developments are contributing to the transformation of the political economy in these countries and the broader world economy, the institutions of global governance, and the development of the increasingly global­ized market for corporate legal services. The goal of the GLEE project is to understand these complex interactions and to shed light on the role that lawyers and legal institutions in India, China, Brazil, and other emerging economies have in shaping global governance in an increas­ingly multi-polar world.

How is GLEE organized?

We started the GLEE Project because too little detailed work has been done on the corporate legal sectors in India, China, Brazil and other emerging economies and more was needed to understand the complex—and even contradictory—roles corporate lawyers play in economic, political and social life. The GLEE project addresses this gap by conducting original quantitative and qualitative research on a broad range of issues surrounding the emergence of a new corporate legal profession in these jurisdictions. To map the corporate legal sector, trace its evolution, and assess its sig­nificance, GLEE has administered surveys and conducted interviews with elite firms, in-house legal departments, legal educators, public interest advocates, government officials and others.

At present, GLEE has more than 50 scholars from a broad range of disciplines, including law, so­ciology, economics, political science, anthropology, area studies, and international relations, from leading institutions in the United States, India, China, Brazil, Singapore, South Africa and the United Kingdom, conducting original qualitative and quantitative research on the transfor­mation of the market for legal services in India, China, and Brazil.

GLEE began its research in India, the results of which were recent published in a major book entitled “The Indian Legal Profession in the Age of Globalization: The Rise of the Corporate Legal Sector and its Impact on Lawyers and Society” (Cambridge University Press, 2017). Can you tell us a little about the book?

We started the GLEE Project in India because we felt that India was the most important, least studied legal market in the world at the time we began the project. We wanted to understand how India’s opening up to the world, which happened around 1991, impacted the development of the country’s emerging new corporate legal sector, and how this, in turn, has helped to reshape the Indian legal profession. The book provides the first comprehensive analysis of the impact of globalization on the Indian legal profession. Employing a range of original data from twenty empirical studies, it details the emergence of a new corporate legal sector in India includ­ing large, sophisticated law firms and in-house legal departments, as well as legal process outsourcing companies. As the book’s studies document, this new corporate legal sector is reshaping other parts of the Indian legal profession, including legal education, the development of pro bono and corporate social responsibility, the regula­tion of legal services, and gender, communal, and professional hierarchies within the bar.

What are some of the key questions that the research into India and the book addresses?

The book really addresses four big questions. First, we were interested in whether what we call the “Anglo-American model” of the corporate legal sector, by which we mean large law firms that resemble those that we see in the United States and the United Kingdom as well as sophisticated in-house legal departments, is moving to India. And, we did find substantial evidence that suggests that the model is indeed moving to India. For example, many Indian law firms now have several hundred lawyers that, at least on a surface level, share many of the same organizational structures as law firms in New York and London. Similarly, from a major study of Indian in-house legal departments, we saw that general counsel in the country are increasingly sophisticated. As one example, prior to 2000, most general counsel in India reported to the chief financial officer, and many did not have law degrees. By the mid-2010s, the majority reported to either the CEO or the board, as in the norm in the United States, and virtually all are fully qualified as attorneys. In these and other important ways, we did find a diffusion process of the Anglo-American model of the corporate legal sector taking place in India.

But we also found that what is happening in India is far more complicated than just the diffusion of Anglo-American Practices. Thus, the second question we explored is how has India’s unique environment shaped these global transplants to create distinctively Indian institutions of practice. As is widely known, in India, communal ties—ties of religion, caste, social class, region—are quite strong. Our research found that these communal ties operate even inside the corporate legal sector. For example, while most law firms in the United States long ago transitioned from being family owned/controlled businesses, many high-powered, corporate law firms in India are still controlled or dominated by important families. Indeed, this is frequently connected to the fact that many of India’s most important business interests are similarly controlled.

This connects to a larger point about how structures change over time. As many know, the corporate legal sector in the United States has been evolving over the last 20 years or so. As such, and as the Indian law firms and in-house legal departments looked towards the models that were historically so successful, those models themselves were changing. It’s little bit like following a moving target. Therefore, Indian law firms and legal departments were simultaneously trying to adopt a model that itself was changing, all the while doing so in relation to distinctively Indian conditions. What we see emerging is a complex mix of global influences with local adaptations–a process we call “glocalization.”

The third big question that we looked at is how this new corporate sector of the bar influences other sectors of the legal profession, such as legal education and professional regulation. Here, again, we found interesting and dynamic developments at play. Take legal education. India created a set of national law schools beginning in the late 1980s that were meant to provide the highest level of training. With liberalization and the exploding number of legal needs, the number of these law schools has increased dramatically.  Moreover, a number of private law schools, such as Jindal Global Law School, founded by C. Raj Kumar LL.M. ’00, were also established with the specific goal of providing a globally-based, legal education. Globalization and liberalization also prompted a big contest in professional regulation in India. Like many countries, regulation in India has traditionally been extremely restrictive around commercial practices, such as advertising. The new corporate sector has pushed to remove many of these traditional restrictions. At the same time, there is a contest about whether foreign law firms that want to come in and serve the Indian market will be allowed to do so. The book chronicles these and other similar conflicts, and documents how India’s new corporate sector is reshaping key areas of the profession.

The fourth and final big question we address in the book is how this new corporate legal sector impacts India’s economic, political and social development, and its relationship to the world. Indeed, we have several chapters in the book that look at this directly. For instance, we found some very interesting developments in how corporate law firms and legal departments, who traditionally have not been part of the policymaking process in the way that they are in the United States, are exerting more and more influence on the legislative process in India. Thus, when India adopts a new corporate securities law, lawyers from top corporate law firms are increasingly at the negotiating tables. We also found India investing in the development of the corporate legal sector to build capacity to represent Indian companies and the Indian government in the institutions of global governance, such as the World Trade Organization, or in trade disputes. Even though the corporate legal sector in India is still relatively small compared to the rest of the Indian bar, its influence in promoting India’s influence in the world has grown quite considerably.

What’s next for the GLEE project?

In addition to India, the GLEE project has conducted similar research in Brazil and China.  Our research is now complete in Brazil and our book, “The Brazilian Legal Profession in the Age of Globalization: The Rise of the Corporate Sector and Its Impact on Lawyers and Society,” was published by Cambridge University Press on February 1, 2018. As in India, we will be traveling to Brazil this fall to share our findings and discuss the implications of our work with leading Brazilian lawyers, judges, academics and policymakers. Our research in China will be completed in the next few months.  The third GLEE book reporting the results of this work will be published by Cambridge University Press around this time next year.

The next place the GLEE project will be even more ambitious. We are now in the process of planning to expand the project to Africa. Needless to say, this will be a difficult project. Africa, of course, is a continent not a country. We’re starting by identifying the countries that will form the core of the study. We are also in the process of putting the research teams together and we hope to begin work on this project this year. Please reach out if you want to get involved!

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“Why India?” A Q&A with Vikramaditya Khanna S.J.D. ’97

Co-editor of the “The Indian Legal Profession in the Age of Globalization” reflects on the pivotal-player status of the largest and fastest-growing emerging market in the world.

David Wilkins on globalization, lawyers and emerging economies 1

Credit: Center on the Legal Profession

Why should we all care about India?

India is one of the most fascinating and exciting countries to be exploring. People often talk about the large population and the fast economic growth as being important reasons to focus India. Those are important, but they are simply the tip of the iceberg. For those who are interested in law and the legal profession, India is one of the most exciting places to be due to what I call the “4 Ds” of India.

The first D is development. Typically, when a country embarks upon an aggressive development agenda, that requires substantial economic and legal changes in the country. That makes law and legal reform front and center in the development debate.

The second D is democracy. India is the largest, and one of the most active, democracies in the world. It is well known that development generates change and that often creates relative winners and losers. Those who perceive themselves to be losers are more likely to vote against the development agenda – something that is particularly important in a democracy as active as India’s. That may put some constraint on the development agenda, requiring greater discussion and greater “buy-in” from various groups. That often tends to slow down the development agenda.

The third D of India is what I refer to as diversity. India has over 23 official languages, countless recognized languages and even more unrecognized languages! Almost every major religion in the world is found in India, which suggests that getting consensus on things requires considerable effort in the Indian context. That means that a lot of development change will require a large degree of consensus-and that may take longer to arrive at.

And that leads to the fourth D of India, which is demography. India has an exceedingly young population and one that’s getting younger every year. By some estimates, there are nearly 750 million people in India below the age of 40. A lot of people refer to this as a “demographic dividend”. They see a very large consumer and production base. But, of course, if this large population doesn’t have educational and employment opportunities, that demographic dividend may turn into a demographic disaster. That, of course, puts tremendous pressure on creating employment opportunities, which means it puts pressure on the development agenda to move very quickly.

When you look at the 4 Ds of India, the democracy and the diversity of India tend to push towards a more considered, some might say lumbering, development process whereas demography may entail the need for quicker development. The law and the legal profession in India play a central role in mediating the tensions generated by these powerful forces. This makes studying the law and legal profession in India absolutely critical to understanding how the law can be relevant and important in development in such a wide, diverse and powerful democracy. Indeed, some of the insights from India may inform debates in other countries that are also grappling with some of these forces.

Where do you see India going in the next one, three, five, ten years?

I think India is going to be a pivotal player in the world going into the future, and also a critical partner for the United States going forward. Some of the reasons for this is, of course, that India is currently the fastest growing, largest emerging market in the world. It also, I would note, simultaneously has the largest number of poor people in the world. That makes it an absolutely fascinating place to examine, because we may see tremendous change.

Moreover, India’s population, by all estimates, will soon exceed China’s, making it the most populated place in the world. And that population growth is likely to continue going further into the future. Most estimates also suggest in the next 15-20 years, India will be among the top three largest economies on the planet. That not only makes it a critical partner for the United States economically, but also geopolitically. On top of all of that, India is the largest English speaking, common law jurisdiction in the world. And it is not yet fully open to global competition in the legal profession. For those of us interested in the law and the legal profession, India has to be one of the most, if not the most, exciting places to study and explore-in the next year, the next three years and going far into the future.