Transnational Lawyering
In an earlier era, legal professions developed alongside and together with nation states. Today, lawyering practices and projects are intertwined with transnational institutions, processes and agendas. The advent of the 21st century has witnessed the advance and retreat of political liberalism in various regions of the world, a new movement of law and economic development, the rapid expansion of global markets, the spread of human rights discourse, and the diffusion of hegemonic cultural, political and economic values. These forces have lead to reconfigurations of sovereign power, as states adapt to the multiple complex pressures and opportunities created by globalization. This collaborative research network focuses on the roles and impact of lawyers in these various processes. In what ways are lawyers agents and crafters of these global developments? To what extent do they function as barriers? How distinctively do lawyers shape global processes, institutions, and outcomes?
Whereas lawyers in an earlier period practiced in spheres in which the parameters, constraints and opportunities created by a single sovereign power were assumed, lawyers in transnational practice today operate in arenas where various supra-national, regional, and global regulatory environments, institutions and networks regulate behavior. These arenas exhibit a remarkable diversity of maturity and stabilization, with some international legal fields that are well established and others that are only beginning to take shape. Transnational lawyers function in environments of intense market-making, institution-building and law-making.
For purposes of this research network, the meaning of “transnational” is open-textured. It encompasses: lawyers who work on commercial transactions involving multiple national jurisdictions; lawyers who work on relations among sovereign actors, such as nations, and among supra-national actors, such as the World Trade Organization, the International Monetary Fund or other similar institutions; lawyers involved in building supra-national legal regimes and institutions; and lawyers who mobilize across national borders to advance social, political and economic agendas, including lawyers working for international NGO’s and other social movement organizations. It also embraces lawyers whose causes are advanced through international strategies.
Research projects in the network are encouraged to attend to the following parameters:
Agency
Transnational lawyers act through various channels and structures. Some work solo as individual moral entrepreneurs. Others work in traditional structures such as firms, and governments, or professional associations. In addition, they provide legal expertise, as staff members and outside consultants, to transnational organizations, such as international non-government organizations, international financial institutions and multilateral organizations. Transnational lawyers, in addition, participate in wide-ranging networks and epistemic communities that grow out of participation in common cases and projects.
Stakes
Conventional market control theory contends that lawyers are primarily engaged in creating and controlling markets for their services. This approach emphasizes lawyers’ efforts to create exclusive rights to provide legal services in a given market, obtain access to clients, and create legal regimes that secure the value of their accumulated expertise. Ideological interests represent important stakes in transnational practice, including commitments to liberal “rule of law” values to promote economic and political development, and commitments to aesthetic or “rationalization” values that emphasize predictability, consistency and coherence within and among legal regimes. In addition, transnational lawyering reflects ideological commitments to institution-building through the creation of international regulatory regimes, new cross-border legal instruments and technologies, and models for national law-making. The stakes in transnational practice, accordingly, appear to run along three basic dimensions: market creation, liberal state-building, including national and international civil society, and global governance.
Politics
The political struggles among professionals in transnational practice encompass jurisdictional competition over definitional and prescriptive control between lawyers and other professionals (such as accountants, economists and other experts), local struggles among elites in developing countries, and competition between professionals in advanced and developing countries. They may also include tensions among lawyers in different structural locations and as agents of different actors on the global stage. The exercise of professional power relates to the clients or causes lawyers represent and the nations from which they come.
Processes
Transnational lawyering is manifested through various processes, including market and institutional competition, economic coercion, institutional modeling, networking, enrolment, the creation of alliances among different actors and organizations, and labor differentiation among actors in a shared field.
Impact
Transnational lawyering may shape the discourse and structures of global activities, may expand or contract the agendas of transnational actors, and may influence the form and functions of national and supra-national institutions. In what ways are transnational lawyers exercising a discernible impact on markets, polities, and civil society nationally and supra-nationally?
These proposed parameters do not exhaust the questions raised by transnational lawyering practices. Further issues to be explored include: What are the career paths and profiles of transnational lawyers? What are the interactions among ascriptive or status attributes, such as gender, race or ethnicity, and transnational lawyering? How does transnational lawyering affect national politics?
We envisage that this research network will encompass a wide range of lawyering in many different arenas. It includes:
Our ambition is to bring together these diverse lawyering practices with a view to investigating differences and commonalities among these various transnational projects.
Austin Sarat
Tanina Rostain
Terry Halliday