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Abstract:
The issue of outsourcing jobs abroad stirs great emotion among Americans. Economic free-traders fiercely defend outsourcing as a positive for the U.S. economy while critics contend that corporate desire for low wages solely drives this practice. In this study I focus on a specific type of outsourcing, one which has received scant scholarly attention to date - legal outsourcing. Indeed because the work is often paralegal in nature, many see the outsourcing of legal jobs overseas as no different from other types of outsourcing. But by using as my case studies both the United States and India, the latter which is receiving an ever-increasing amount of outsourced American legal work today, I describe how there are many forms to the legal outsourcing model and how this practice can entail a range of legal services.

This article, however, moves beyond providing a descriptive account of legal outsourcing. Legal outsourcing to India is occurring against the backdrop of an Indian legal system in crisis. For those who are fortunate to benefit from legal outsourcing, the pay-offs are indeed rewarding. But most Indians of course are not participants in - nor beneficiaries of - this practice. In fact, in everyday parlance the word "legal" itself in India is associated with a process that is delay-ridden, backlogged, and unduly expensive. On its face it might seem that legal outsourcing is unconnected to the problems that have long plagued India's legal system. Yet as I will argue, in addition to having an ethical obligation to provide assistance to the legal environment upon which they draw, those engaging in legal outsourcing also have an economic incentive to ensure that India has a better-operating legal system. Thus, as a means of raising much needed revenue to fund its legal reform efforts, India, as I propose, might levy a minimal fee on U.S. legal outsourcers, and as I explain, because strengthening the rule of law is ultimately in their financial interest, these American investors may well accept shouldering such a cost.

legal, outsourcing, india, litigation, comparative law, intellecutal property, corporate social responsibility

Abstract:
India is rightly acclaimed for achieving a flourishing constitutional order, presided over by an inventive and activist judiciary, aided by a proficient bar, supported by the state and cherished by the public. At the same time, the courts, and tribunals where ordinary Indians might go for remedy and protection, are beset with massive problems of delay, cost, and ineffectiveness. Potential users avoid the courts; in spite of a longstanding reputation for litigiousness, existing evidence suggests that Indians avail themselves of the courts at a low rate, and the rate appears to be falling. Still, the courts remain gridlocked. There is wide agreement that access to justice in India requires reforms that would enable ordinary people to invoke the remedies and protections of the law. In this study we focus on an innovative forum, introduced just twenty years ago, which has enjoyed substantial governmental and judicial support and is endorsed and promoted, indeed given pride of place by influential elites, as a promising avenue of access to justice. This forum is the Lok Adalat, literally people's court, and as the name suggests it is promoted as having a different source and character than the courts of the state. In fact, the Lok Adalat is a creature of the state, but because of the pretension that it is not, it deserves examination under the rubric of an alternative, non-state justice system. We suspect that a number of the inhabitants of that category bear a similar ambivalent relationship to the state.

This Article will proceed in the following manner: Part I recounts the post-Independence movement to establish village-based courts as a key method of enlarging public access to justice. After discussing the setbacks this movement encountered, we contrast the top-down public interest litigation approach that emerged in the wake of the Emergency period (1975-1977). In Part II we focus on how, beginning in the 1980s, judges and politicians returned to the captivating idea of settling disputes in an indigenous, traditional manner at the grassroots level. During this time, the concept of the Lok Adalat started gaining significant momentum, and we discuss the reasons why so many supported expanding this alternative dispute institution throughout India. In Part III we present findings from our preliminary observations of several different types of Lok Adalats. We conclude that the claim that this forum offers participants speedy, fair, and deliberative justice needs serious reconsideration.

Abstract:
On January 26, 1950 the Constitution of India came into effect. Nearly two and one-half years after winning independence from Britain, India enacted one of the most detailed, rights-based constitutions ever seen in the history of the world. The passage of such a democratic constitution was inspirational - not just for a country that endured centuries' of both informal and formal colonial rule, but also for those in the West. Many American observers, in particular, looked upon with awe as this economically poor, yet fiercely independent nation sought to embrace political and legal principles that had long been valued within the United States. The Ford Foundation - one of the world's leading philanthropic institutions based in the U.S. - soon also became infatuated with the promise and overall idea of India. For Ford, India exhibited great potential: its political and military leaders opted for democracy rather than dictatorship; its first prime minister, Jawaharlal Nehru, was a dynamic, Western-educated figure committed to economic development and modernization; and it retained English as a main national language, thereby giving Americans, who so desired, a better opportunity to work more easily within the country. For these and as we shall see other reasons, the Ford Foundation began to take a serious interest in India.

One area that Ford especially focused on involved the development of legal education. Policymakers at Ford Headquarters in New York as well as at Ford's New Delhi office believed that for Indian democracy to succeed, the country needed to have well-established, rule-based institutions administered by those educated in the legal principles of equity, due process, and individual rights. These officials consulted with a number of Indian legal elites, several of whom had studied in the United States, and together these Americans and Indians concluded that law schools in India would be the ideal place to promote such legal principles. After all, having Indians educated in Western legal doctrine was critical for maintaining Weberian, democratic institutions; and the hope was that this in turn would lead to greater public respect for the rule of law.

Beginning in the 1950s, Ford thus began spending millions of dollars and decades of energy working with Indians to create strong schools of law. One of the first steps Ford took in its initiative was to hire a number of respected American law professors as consultants. These academics were charged with traveling to India, assessing the legal educational environment, and providing recommendations to both Ford and the government of India for how to improve the country's legal education system. Given that many of India's elite had routinely praised the American law school model, Ford worked under the reasonable assumption that U.S. academics would be in the best position to advise their Indian counterparts.

As I will discuss, however, this assumption proved at best to be questionable. To date, no work has presented the views of the academic consultants hired by Ford. For decades these reports were confidential and the consultants were equally reluctant to talk about their opinions. But perhaps because enough time has passed and Ford's involvement in this area has waned, I was granted access to all of Ford's documents on legal education in India. I also was able to interview key American scholars who served as advisors to Ford. In this study I trace the role American academics played in shaping Indian legal education. As I show, the belief held by both Ford and its Indian partners that the American law school model could successfully be exported to India soon came to be rejected by many of these U.S. professor-consultants. A consensus developed among these American academics that India's distinctive history, traditions, and legal profession - not to mention its economic struggles and political climate - would make it difficult for the American law school model to thrive in this environment. And to their surprise, these consultants found that Indian legal scholars, who were not affiliated with Ford, had their own innovative ideas on how to improve the country's legal education system.

Abstract:
Despite the current financial crisis, prestigious American and British law firms continue to maintain a presence in Continental Europe, Latin America, and China. Yet, in one economically fertile, democratic country - India - such global legal powerhouses are scarcely found.

This study seeks to understand empirically why there is a general absence of these and other foreign law firms practicing in India. Based on fieldwork and compiled interview data of lawyers, judges, government officials, activists, and clients from India, the United States, and Britain - the latter two being the foreign countries most interested in gaining access to the Indian legal market - I show that the conventional wisdom on this subject is inadequate, and that there are multiple layers to this debate. But as I also show, what makes this story so fascinating is how both supporters and opponents of foreign law firms in India have strategically coupled their policy arguments with potent symbolic rhetoric to champion their perspectives. The study concludes by outlining a set of preliminary proposals that would permit American, British, and other foreign law firms gradually to enter India but would also incorporate the concerns held by opponents and could serve as the foundation for reaching a comprehensive resolution.

Law Firms, Lawyers, India, Globalization

Abstract:
The "success" of India's democracy is a feat that must not be underemphasized; this article by no means will attempt to say otherwise. However, even within the most thriving of democratic societies problems exist. In addition to the challenges mentioned above, India confronts other issues. Corruption and bribery of politicians, police abuse, non-performance by and incompetence among bureaucrats, and an inadequate infrastructure are just a smattering of troubles that burden the Indian state. As serious, if not more so of a problem, but one that has received passing attention by most scholars, is the inefficiency of the country's judicial system. The courts in India are thought to be the most crowded of any in the world. A recent report states there are "23 million pending court cases-20,000 in the Supreme Court, 3.2 million in the High Courts and 20 million in lower or subordinate courts." Cases take decades, and sometimes generations, to resolve. A New York Times story from a few years ago tracked one property law case that remained open for forty years - long after both original litigants were dead.

These mind-boggling backlogs and delays in the legal process have far reaching implications for those interested in making social policy changes. As I shall suggest in this article, in spite of all its successes, India’s democracy is at risk of becoming de-legitimized because of the increasing lack of faith many Indians have in the judicial process. Social policy advocates, in particular, who work on behalf of such groups as the poor, lower castes, women, the ill, and/or religious minorities, often have not found the legislature to be responsive to their needs. But lately, they neither have found it worthwhile to redress their grievances in what has become a time-engulfing legal process. Instead, these activists have opted for other means to advocate their causes that focus on more grassroots tactics. Yet, the problem is that in a democracy, the judiciary is constituted to serve as the counter-majoritarian protector of minority interests. It is thus disturbing that so many Indians in need, who believe the legislative process cannot help them, are as quick to dismiss the courts as a forum where their social policy concerns can be met.

This article then will argue that India's democracy, which in the West is lauded as a beacon for other developing nation-states, is at its most crucial juncture. Large numbers of citizens for a long while have been disillusioned with the legislative process. Now that the courts are also seen by many as a futile forum in which to bring about social change, it is little wonder why those who are aware of the turmoil within the Indian legal system fear that this great democratic experiment is encountering one of its biggest crises to date. In this article I shall concentrate on the challenges facing the courts and the implications of this on social policy advocacy. It is important to note that the substantive decisions emerging from the courts - particularly from the Supreme Court - can and often have been to the benefit of social policy activists. The issue here, however, is the length of time it takes to receive one of these beneficial judgments. That such massive delay inheres within the legal process is what deters many from pursuing this route. But before proceeding to a full discussion of this point, it is necessary to provide a brief overview of the literature that has recognized what India's democracy has accomplished - by way of both political and social policy advances. Section two, therefore, will summarize a selected sample of readings that address this topic.

In sections three and four, I return to my main thesis by suggesting that much of the standard literature has failed to offer a critical analysis of one of India's most important institutions: the courts. In providing such an analysis, I discuss how within this touted democracy those interested in making social policy changes have in fact shied away from using the legal process. While I focus on social policy advocates who promote civil rights, gender equality, the environment, and the rights of the ill, the secondary literature I draw on shows that the negative sentiments towards the courts penetrate through to a much larger segment of the population. I conclude in section five by evaluating some of the proposals aimed at "fixing" the legal system to make it more user-friendly for social policy advocates. As I suggest, such remedial measures are laced with numerous problems. Only through real, substantive legal reform can we hope to make the courts in India an arena available to those who otherwise perceive of themselves as excluded from the political process.

Abstract:
For more than a decade, there has been a steady growth in what is now commonly referred to as the 'cause lawyering' literature. Partly as a response to those who were critical of the legal profession during the 1970s and 1980s, cause lawyering scholars have sought to rebut these critics' charges, as well as more comprehensively illustrate what, why, and how cause lawyers do what they do. While the critics of cause lawyers on the one hand, and cause lawyering scholars on the other, have made enormous contributions to the debate, only recently has the discourse shifted to examining an important element of cause lawyering behavior that until now has received limited attention. Building on this exciting new work, I suggest that scholars need to consider more closely how people working on a cause at the grassroots level interact with, attempt to influence, and make demands of their lawyers, and how in turn these lawyers respond to such lay-advocacy.

Although cause lawyers rely on varied forms of legal and political techniques, for this study I focus specifically on the 'primary agent of liberal democratic cause lawyering' - constitutional litigation. The conventional assumption is that the decision to use constitutional litigation comes from the lawyers themselves. After all, the lawyers are the experts who are skilled in this rhetorical practice and thus are best able to determine how and when to employ this strategy. But by focusing on three different grassroots movements, in a different constitutionally-based and democratic society, India, I show how grassroots-leaders are actively involved in assisting their lawyers specifically recast the pressing concerns of everyday individuals into constitutionally recognizable claims. As I explain, the United States and India share a number of important legal and constitutional similarities that makes such a comparative investigation useful. Yet many might think that because issues of caste and other socioeconomic and political cleavages remain starkly present in India, such bottom-up pressure would be rather unlikely. But that such pressure indeed is occurring in the Indian case, as my findings and ultimate conclusion suggest, offers those who study cause lawyering and constitutional litigation in the American context an opportunity to reexamine the interaction between those at the grassroots and the lawyers who work on their behalf.

Constitutional, litigation, cause, lawyering, India, grassroots, activists, law and society, public interest

Abstract:
For economic and nuclear reasons, India has received considerable attention over the last decade from observers in the United States. But attuned Americans are well-aware of India's rich culture and status as a shining constitutional democracy for most of its post-1947 independent history. For all that India has accomplished, however, its public has long viewed its government officials with great disdain. At the same time, a fascinating norm exists in this society which holds one institution in exceedingly high regard - the Indian Supreme Court.

In this article, I seek to examine what accounts for this counter-intuitive norm. As opposed to other state institutions, the Indian Supreme Court is perceived as uncorrupted and as an aggressive protector of individual rights. Yet as I argue, these affirmative sentiments towards the Court mainly appear within scholarly discourse. The Court's various landmark judgments over the years certainly have enabled participants in this discourse to promote its reputation. But because actual evidence is lacking, we simply do not know if this scholarly norm reflects the perceptions of the mass public. Indeed the reality is that most Indians never have any contact with the Court; interaction with the legal process is usually done at the lower court level which can be delay-ridden and expensive. Moreover, because there are legal sanctions that can result from criticizing the Court, it may well be that many within the general public individually reject the scholarly norm but are afraid to speak-out or believe that they are alone in their disagreement. That this psychological phenomenon of pluralistic ignorance, which I discuss in detail, may be occurring has important implications, including forcing us to reexamine the extent to which the Court is able - in the eyes of the Indian public - to protect and advance a substantive rights agenda.

India, Supreme Court, Public Opinion, law, psychology

Abstract:
In this article, I argue that those who believe that Americans can successfully export their visions of law and legal research to other countries need to consider - in addition to Japan and Germany, two countries that are often touted as exemplars - the case of India. India gained its independence from the British in 1947, and soon thereafter many American experts traveled to India in an effort to foster a culture of Western legal intellectualism. As part of their mission to improve the status of law in India, the Americans, upon their arrival, strongly advocated for the construction of a national Indian legal research center - similar to the American Law Institute (ALI) which had been located in Philadelphia, Pennsylvania since 1923. The ALI had earned the reputation as a leading center that focused on the study and improvement of law. While almost all of the ALI's work concentrated on American law, the idea was that India too could have such a center of its own where lawyers, judges, and academics worked to clarify outstanding legal questions. As I document, however, American efforts to create an Indian version of the ALI encountered serious difficulty. And as I conclude, the lessons from this study might well prove useful as American experts attempt to help countries today, such as Iraq and Afghanistan, devise democratically-based legal systems.

India, Comparative Law, Legal History, American Law Institute, Ford Foundation, Indian Law Institute

Abstract:
This pilot study evaluates the effectiveness of law firms entering into joint ventures, an increasingly eyed business model particularly by American and British lawyers seeking to expand into promising financial markets. One country at the center of the joint venture experiment has been Singapore. With the strong encouragement of the Singaporean government (which has long embraced foreign investment), various elite law firms from the United States and Britain have been partnering with domestic Singaporean law firms for over the past decade. Because these foreign firms were traditionally barred from practicing Singaporean law on their own, the ‘joint law venture,’ or JLV as it came to be called, was initiated to provide the Americans and British with an opportunity to access the highly-desired, lucrative local market – through the use of their Singaporean joint venture colleagues. In return, the Singaporean firms were to benefit by gaining international legal contacts, learning ‘best practices’ from their foreign counterparts, and enhancing their reputations by being tied to prestigious law firm powerhouses.

Until now, no work has fully investigated whether these JLVs have actually fared as well as their advocates had hoped. Therefore, based on fieldwork conducted in Singapore, including in-depth interviews of the relevant parties, this project fills this gap – uncovering how due to economic misalignment, cultural misunderstandings, and a sheer breakdown of necessary human relationships, in more cases than not the JLV has been a failed business model. For these reasons, I argue that American and British law firms may wish to think seriously before pursuing the JLV route – not just in Singapore but perhaps even in other markets in which they are already present or are contemplating entering.

Law Firms, Joint Ventures

Abstract:
It is believed that India will soon have the highest number of HIV/AIDS cases of any country. Some reports project that 37 million people will be infected within the next two decades. Sadly, few studies have examined the legal claims of those who suffer with this disease in this, the world's largest democracy. In this article, I systematically examine how the courts in India have responded to rights-based claims brought by people who have HIV. The conventional wisdom is that the Indian judiciary frequently protects the rights of the poor, the under-represented, and the ill. But my findings reveal that, at least for people with HIV, the courts have not extended to this group full constitutional protection. The implications of this conclusion force us to revisit whether the courts in India best safeguard the rights of others who are disadvantaged.

Abstract:
To say that Professor Marc Galanter's scholarship is diverse would be a woeful understatement. In his over forty years of writing, Galanter's work has covered topics including (but not limited to) torts, contracts, constitutional law, comparative law, empirical legal studies, the legal profession, legal anthropology, and South Asian studies. With Galanter's scholarship so heavily cited and respected, we see it as only fitting, particularly upon his recently turning seventy-five, to acknowledge his achievements in a symposium that reflects back on the years of his work.

Serving as special editors to an issue forthcoming in the Duke Law School journal, Law and Contemporary Problems, we offer here a short essay that briefly summarizes the various works of the contributors participating in this dedication. Our authors provide a set of papers that cover a range of disciplines: law, sociology, political science, anthropology, history, and philosophy. The works embody Galanter's long-held belief that not only should law be studied in an interdisciplinary manner but that it can be instrumentally used by both elites and grassroots activists to effectuate social change.

The symposium-contributors also share another connection. Each views her or himself to be a student of Galanter's. Some of these students have been directly mentored by Galanter while at the University of Wisconsin-Madison and have since gone on to academic posts at other institutions. Others are more distance-students who have been influenced either while studying elsewhere or while working as academics at different universities. The common link though is that this cohort is part of the next generation of Galanter-influenced scholars who will be carrying-on the lessons of Galanter's vast scholarship for decades to come.

law-and-society, social science, South Asia, comparative law, empirical legal studies

Abstract:
This paper examines the ways that Wisconsin contingency fee lawyers obtain clients. It draws upon a survey of Wisconsin practitioners, three months of observation in lawyers' offices, semi-structured interviews with practitioners, a survey of recipients of direct mail solicitations from Wisconsin contingency fee practitioners, and a survey of Wisconsin residents about whether they had predilections concerning which lawyer or law firm they would use should they have an injury claim. The analyses show that most lawyers draw the vast majority of their cases from a combination of referrals from prior clients, referrals from other lawyers (mostly uncompensated referrals), and repeat clients. Relatively few clients come through media advertising or direct mail solicitation, even for most of those lawyers who aggressively employ media and direct mail. The key factor for obtaining clients is the lawyer's (or firm's) reputation. The need to maintain a reputation that will bring in clients serves to limit the ability of contingency fee lawyers to pursue courses of action that run counter to their clients' interests.