law and development of middle-income countries In 1960, there were 101 middle-income countries. By 2008, only thirteen of these had become high-income countries. Why do so many middle-income countries fail to develop after a promising start, becoming mired in the so-called middle-income trap? This interdisciplinary volume addresses the special challenges that middle-income countries confront from both a theoretical and a practical perspective. It is the first volume that addresses law and development issues in middle-income countries from the perspective of political, administrative, and legal institutions and policies. The goal is to provide international development agencies and domestic policy makers with feasible recommendations to address the wide range of technically, politically, and socially complex issues that middle-income countries face. Randall Peerenboom is a Professor of Law at La Trobe University and an Associate Fellow of the Oxford University Center for Socio-Legal Studies. He is a former Director of the Oxford Foundation for Law, Justice and Society Rule of Law in China Programme and was Professor at UCLA Law School from 1998 to 2007. He has been a consultant to the Asian Development Bank, Ford Foundation, EU-China, UN Development Programme, and other international organizations on legal reforms and rule of law in China and Asia, and he is the Co Editor-in-Chief of The Hague Journal of Rule of Law. He is also a China International Economic and Trade Arbitration Commission arbitrator, and he frequently serves as an expert witness on People s Republic of China legal issues. Recent books include The Dynamics of Rule of Law in an Era of International and Transnational Governance (edited with Michael Zürn and André Noelkamper, Cambridge University Press 2012); Judicial Independence in China (edited, Cambridge University Press 2010); Regulation in Asia: Pushing Back on Globalization (edited with John Gillespie, 2009); and China Modernizes Threat to the West or Model for the Rest? (2007). Tom Ginsburg is the Leo Spitz Professor of International Law, Ludwig and Hilda Wolf Research Scholar, and Professor of Political Science at the University of Chicago, as well as Research Professor at the American Bar Foundation. He currently codirects the Comparative Constitutions Project, a National Science Foundation funded data set cataloging the world s constitutions since 1789. His recent coauthored book, The Endurance of National Constitutions (2009), won the best book award from the Comparative Democratization Section of the American Political Science Association. His other books include Judicial Review in New Democracies (2003), Administrative Law and Governance in Asia (2008), Rule by Law: The Politics of Courts in Authoritarian Regimes (with Tamir Moustafa, 2008), and Comparative Constitutional Law (with Rosalind Dixon, 2011). Before entering law teaching, he served as a legal advisor at the Iran-U.S. Claims Tribunal, The Hague, Netherlands, and he has consulted with numerous international development agencies and governments on legal and constitutional reform.
Law and Development of Middle-Income Countries avoiding the middle-income trap Edited by RANDALL PEERENBOOM La Trobe University, Melbourne TOM GINSBURG University of Chicago
32 Avenue of the Americas, New York, ny 10013-2473, usa Cambridge University Press is part of the University of Cambridge. It furthers the University s mission by disseminating knowledge in the pursuit of education, learning, and research at the highest international levels of excellence. Information on this title: /9781107609198 Cambridge University Press 2014 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2014 Printed in the United States of America A catalog record for this publication is available from the British Library. Library of Congress Cataloging in Publication Data Law and development of middle-income countries : avoiding the middle-income trap / Randall Peerenboom, La Trobe University, Melbourne; Tom Ginsburg, University of Chicago. pages cm. Includes bibliographical references and index. isbn 978-1-107-02815-9 (hardback) isbn 978-1-107-60919-8 (paperback) 1. Law and economic development. 2. Developing countries Economic policy. I. Peerenboom, R. P. (Randall P.), 1958 editor of compilation. II. Ginsburg, Tom, editor of compilation. k3820.l38 2013 338.9009172 0 4 dc23 2013027235 isbn 978-1-107-02815-9 Hardback isbn 978-1-107-60919-8 Paperback Cambridge University Press has no responsibility for the persistence or accuracy of urls for external or third-party Internet Web sites referred to in this publication and does not guarantee that any content on such Web sites is, or will remain, accurate or appropriate.
Contents List of Contributors Acknowledgments page ix xi 1 Law and Development in Middle-Income Countries: Introduction Randall Peerenboom 1 part i. the politics of development in middle-income countries 2 The Politics of Law and Development in Middle-Income Countries Tom Ginsburg 21 3 When Does Politics Get in the Way of Development? The Developmental State, Good Governance, and Liberal Democratic Change in Malaysia and Singapore Surain Subramaniam 36 part ii. middle-income countries in a globalized economy 4 The Rise of Middle-Income Countries in the International Trading System Gregory Shaffer and Charles Sutton 59 5 The Middle Intellectual Property Powers Peter K. Yu 84 6 Growing Wealth in East Asian Middle-Income Countries with Transnational Production Regimes John Gillespie 108 v
vi Contents part iii. good governance and the rule of law in middle-income countries 7 Law and Development in Central and Eastern Europe: The Neoliberal Development State and Its Problems Bojan Bugaric 131 8 Judicial Intervention in Civic-Military Relations: Evidence from Colombia and Mexico Julio Ríos-Figueroa and Fernanda Gómez-Abán 156 9 The Prospects for Anticorruption Law in Middle-Income Countries Kevin E. Davis 179 10 The Delivery of Justice in Middle-Income Countries Juan Carlos Botero 195 part iv. socioeconomic challenges in middle-income countries 11 The Role of Courts and Constitutions in the New Politics of Welfare in Latin America Daniel M. Brinks and William Forbath 221 12 The Judicialization of Health Care: Symptoms, Diagnosis, and Prescriptions César Rodríguez-Garavito 246 13 Nascent Protections in Emerging Giants: Struggles to Judicialize Labor Rights in China and Indonesia William Hurst 270 14 Environmental Challenges in Middle-Income Countries: A Comparison of Enforcement in Brazil, China, Indonesia, and Mexico Benjamin van Rooij and Lesley K. McAllister 288 part v. international donor strategies for middle-income countries 15 The United Nations and Governance in Middle-Income Countries: A Vietnam Case Study Nicholas Booth 309
Contents vii 16 Law and Development in Middle-Income Countries: Conclusion Randall Peerenboom 335 Appendix 367 Index 377
List of Contributors Nicholas Booth is Policy Advisor for Governance, Human Rights and Access to Justice, UNDP Asia-Pacific Regional Centre. Juan Carlos Botero is Executive Director, The World Justice Project. Daniel M. Brinks is Associate Professor of Comparative Politics and Public Law, University of Texas at Austin. Bojan Bugaric is Associate Professor of Law, University of Ljubljana, Slovenia. Kevin E. Davis is the Beller Family Professor of Business Law, NYU School of Law. William Forbath is Associate Dean of Research and Lloyd M. Bentsen Chair in Law, University of Texas at Austin School of Law. John Gillespie is Professor of Law and Director of the Asia Pacific Business Regulation Group, Monash University. Tom Ginsburg is the Leo Spitz Professor of International Law and Ludwig and Hilda Wolf Research Scholar, University of Chicago Law School; Research Professor at the American Bar Foundation; and Professor of Political Science at the University of Chicago. Fernanda Gómez-Abán is a Research Assistant at CIDE. William Hurst is Associate Professor of Political Science, Northwestern University. Lesley K. McAllister is Professor of Law and Martin Luther King Jr. Hall Research Scholar, University of California Davis School of Law. Randall Peerenboom is Professor of Law, La Trobe University, and Associate Fellow, Oxford University Centre for Socio-Legal Studies. Julio Ríos-Figueroa is Professor of Political Studies, CIDE. ix
x List of Contributors César Rodríguez-Garavito is Associate Professor and Director, Program on Global Justice and Human Rights, University of los Andes, Colombia. Gregory Shaffer School. is the Melvin C. Steen Professor, University of Minnesota Law Surain Subramaniam is Associate Professor of International and Asian Studies, University of North Carolina at Asheville. Charles Sutton holds a JD degree from the University of Minnesota. Benjamin van Rooij is the John S. and Marilyn Long Chair in US-China Business and Law, University of California, Irvine. Peter K. Yu is the Kern Family Chair in Intellectual Property Law, Drake University Law School.
Acknowledgments The editors would like to thank the University of Chicago Law School, the Hague Institute for the Internationalisation of Law, and La Trobe University for financial support, and Sonali Maulik, Robert Meyer, Kayla Ginsburg, and Taimoor Aziz for superb research assistance. Ginsburg would like to thank the Russell Baker Scholars Fund of the University of Chicago Law School. xi