The importance of India as a site for activity and study with regard to the legal profession and globalization is underscored by the attention it currently generates in the legal and popular press1 But it also is an area characterized by uncertainty. In fact, even as I write, there has been an additional development regarding the practice of law by foreign law firms: the Indian Supreme Court issued an interim order on July 4, 2012 that reinforced the uncertainty surrounding the authority for and confidence of global law firms to serve clients with interests in and related to India. In light of this, I was delighted to learn that the subject had been taken on by Mihaela Papa and David Wilkins, both of Harvard Law School’s Program on the Legal Profession. Their new article, “Globalization, Lawyers, and India: Toward a Theoretical Synthesis of Globalization Studies and the Sociology of the Legal Profession,” promises to “draw together globalization literature with the scholarship on the sociology of the legal profession . . . [to] provide a new lens through which to analyze economic, political and social transformations occurring in the Indian legal profession.” (P.2) My interest in the article was piqued not only by the topic, but also because Wilkins, the highly-regarded Professor of Law and chair of Harvard’s Program on the Legal Profession, is spearheading its GLEE project (Globalization, Lawyers, and Emerging Economies), which “investigates the impact of globalization on the corporate legal sector in major emerging economies and the effect of changes in this sector on other parts of the legal order, including legal education and the provision of legal services to underrepresented populations.” This paper is an early product of GLEE and, as such, reveals promises of the larger study.
The article does not disappoint and offers a thoughtful addition to the growing body of work on globalization and the legal profession. Papa and Wilkins begin by framing their investigation of India’s legal profession within the literature on globalization, and identify three “social processes commonly identified by globalization scholars in other areas [as] help[ful] to explain the changes currently taking place in the Indian legal profession: economic globalization, globalization of knowledge, and globalization of governance.” (P.3) In doing this, they offer a terminology for analysis that reveals the importance both of differentiating and connecting these three core processes.
Their exploration of economic globalization, for example, finds voice in India in the “intense debate about the opening of the Indian legal services market and concerns within India about the ways to protect the domestic industry and help it evolve.” (P.3-4) The focus on protection also is relevant with regard to governance and knowledge. In each case, despite India’s continued formal barrier preventing foreign lawyers and law firms from offering services within the country, and its traditional skepticism towards international law (P.24), Papa and Wilkins repeatedly find that protection from global influences and actors is nearly impossible (P.6). Rather, external forces already are present, directly and indirectly, and felt in the debates occurring within the country. In turn, the focus on an external-internal divide hides additional divisions that Papa and Wilkins describe, including the growing segmentation of the profession in the emergence of India’s corporate bar (P.3). Drawing on Heinz and Laumann’s two hemisphere theory2, Papa and Wilkins find evidence that the division between those representing corporate versus individual clients likely is complicating the negotiation surrounding these globalization contests, but they also suggest that this division may be neither sharp nor static.
Papa and Wilkins discuss several aspects of economic globalization. I will highlight just one, legal process outsourcing (LPO), which has generated substantial interest because of the potential for economic rewards and its corresponding political challenges. Outsourcing is not the primary emphasis of the article – in fact, they intentionally move well beyond outsourcing – but it nicely illustrates the complexity and subtlety of the framework they offer. They emphasize that “analysis of the Indian legal profession from the economic globalization perspective illustrates the difficulty of controlling globalization of firms when markets, including the market for corporate legal services and LPO, have already globalized.” (P.12) A recent news article reinforces their point, illustrating the challenge of maintaining control in the context of the liberalization debate: a survey sponsored by British-based Magic Circle law firm Allen & Overy asked Indian business executives and lawyers their views about whether India’s legal services industry should be liberalized to allow foreign lawyers and firms to offer services within India. According to the report, “Research group YouGov polled 100 ’C-level’ executives of Indian companies, 100 general counsels, and 101 partners and associates at top Indian law firms. Some 96 percent of those polled said the Indian legal market should be liberalized. Moreover, 79 percent believe the Indian market should be opened completely to allow foreign firms to practice Indian law and merge with Indian firms.”3 More interesting than the survey result is the strategy pursued by Allen & Overy, a foreign law firm with regard to India, in pressing for change by linking their firm – an external actor under the current regime – to the internal voices of current users and suppliers of legal services in India. This offers a nice example of the ways in which globalization’s complicating, indirect and subtle forces can be highlighted by drawing on the framework that Papa and Wilkins suggest. And while the survey is an interesting because it addresses the issue of economic globalization, Allen & Overy’s strategy implicates governance powers in ways that might have been impossible only a few years ago because of limitations of technology and communication – that is, when barriers were more effective.
Globalization’s tendency to emphasize divisions is a factor in Papa and Wilkins’s analysis, too. They note that “the existence of a booming LPO sector which employs the members of the same ‘profession’ in roles that appear to have little to do with the practices of traditional Indian lawyers . . . is likely to place even greater internal stress on arguments that seek to exclude foreign law firms on the ground that they are inconsistent with domestic ideals.” (P.12) Law graduates working in the LPO sector do not go to court; instead, their energy is directed towards “electronic document management and review, legal research, and due diligence services” (P.10) – all office-based activities. In contrast, the focus of most Indian lawyers is on litigation4. As Marc Galanter wrote more than twenty years ago, “Among the prominent features of Indian lawyers are their orientation to courts to the exclusion of other legal settings; their orientation to litigation rather than advising, negotiating or planning; their conceptualism and orientation to rules; their individualism; and their lack of specialization.”5 This is no less true today for most Indian lawyers. The consequence of these divisions is that boundaries, again, are implicated, here with regard to the question of who is in and out of the profession. (P.2)
The same considerations regarding boundaries also are relevant to governance. The LPO industry operates outside of the existing governance structure in India (P.27), despite constituting a significant economic activity involving expanding boundary-crossing in the legal services sector. India is not alone with regard to this approach to regulation, but the consequences are perhaps significant in particular ways in India because they play on the existing and growing divisions within the profession6, including those influenced by globalization’s reach. The growing presence and competition from the LPO industry clearly adds to the challenge pressing on the existing nationally-based framework.
Similarly, because LPO serves as a site of exchange between local and global actors, its rising position affects legal education. In a more formal manner, the structure of legal education within India, if not also external, is implicated as education is developed to prepare workers for employment with LPO firms (P.16). And according to Ballakrishnen, the LPO industry is shaping careers by providing new markers of prestige to those who now often are excluded from elite positions in the Indian legal profession.7
In analyzing globalization’s forces, Papa and Wilkins are careful to note the importance of sensitivity to the local interpretation and response to globalization by drawing on terminology of “glocalization” and “hybridity” that others have used to describe globalization’s influence in other settings, both within a single country8 and across multiple jurisdictions9. This sensitivity to the local ways in which globalization is influential also can help in understanding global law firms, whose adaptation to local markets and regulatory forces belies the uniformity of “norms and policies” (20) with which they typically are described10 That is, even the influence of global law firms is not homogenous and may reflect local variations.
Overall, Papa and Wilkins’s analysis articulates and supports a nuanced consideration of the forces at work in India, a significant contribution in itself and as limited to India. They have identified the ways in which globalization has seeped into the conversation and debates, carefully separating governance, knowledge and economics in order to clarify the layers of actors and interactions. (P.27) Equally exciting is their commitment to a growing body of research on globalization and the legal profession, which also signals opportunities for future scholarship to build on through comparative work and research focused on new contexts.
- Marc Galanter, Law and Society in Modern India 301 (1989). [↩]
- John P. Heinz. and & Edward O. Laumann, Chicago Lawyers: The Social Structure of the Bar (1982). [↩]
- Lionel Mok, Survey Shows Strong Support for India Market Opening, The Asian Lawyer (6/29/2012). [↩]
- Marc Galanter, Courts, Institutions, and Access to Justice: “To the Listed Field . . .” The Myth of Litigious India, 1 Jindal Global L.Rev. 65 (2009). [↩]
- Galanter, supra note 1, at 282. [↩]
- See Jayanth Krishnan , Outsourcing and the Globalizing Legal Profession, 48 Wm. & Mary L.Rev. 2189 (2007); Jayanth Krishnan, Professor Kingsfield Goes to Delhi: American Academics, the Ford Foundation, and the Development of Legal Education in India, XLVI Am. J. Legal Hist. 447 (2004) (with regard to regulating education). [↩]
- See Swethaa Ballakrishnen, I Love My American Job, _ Int’l J. Legal Prof. _ (forthcoming 2012); see also Yves Dezalay & Bryant G. Garth, Asian Legal Revivals: Lawyers in the Shadow of Empire (2011). [↩]
- Sida Liu, Globalization as Boundary-Corporate Law Market, 42 Law & Soc’y Rev. 771 (2008). [↩]
- Carole Silver, et al., Between Diffusion and Distinctiveness in Globalization: U.S. Law Firms Go Glocal, 22 Geo. J. Legal Ethics 1431 (2009). [↩]
- Sida Liu, Art Collectors or Archaeologists?, (https://legalpro.jotwell.com/art-collectors-or-archeologists/ ) July 7, 2011 (Book review). [↩]