Institute for the Study and Development of Legal Systems


ISDLS HOMEPAGE

ABOUT ISDLS

MEMBERS

CONFERENCE

METHODOLOGY

COUNTRY PROJECTS

WHAT IS A
LEGAL STUDY?


LINKS

MEMBERS ONLY



ETHODOLOGY AND STRENGTHS


DESCRIPTION OF THE METHODOLOGICAL PROCESS
The following description of an ISDLS proposal for Jordan (made to USIA) exemplifies the ISDLS methodology, and the process through which information is exchanged with partner countries.

I. METHODOLOGY
In the course of its experience, ISDLS has developed a comprehensive methodology for comparative legal studies of the type proposed here.

The success of past ISDLS collaborations to modernize the existing legal processes in Partner Countries, without disturbing the integrity of those processes, illustrates the originality of the ISDLS methodology. One of the most important tenets of the ISDLS approach is to expand the indigenous processes of the Partner Countries to meet modern needs. Whatever legal modernization plan is devised, it must be either readily integrated into an indigenous dispute resolution process or derived from an existing, culturally accepted dispute resolution function.

A. Methodology:The Legal Study Each ISDLS legal study entails the following six critical components:

  1. an assessment of the practical operation of the Partner Country's legal process. The assessment is essential to ensure a thorough appreciation of the legal culture and tradition.
  2. an identification of both the problems and their causes. The eventual reforms take into account and address the identified causal factors.
  3. the facilitation of the potential solutions to the problems. Reform requires the consideration of a wide range of solutions in order to determine which are most practicable and adaptable to the indigenous legal process.
  4. the development of consensus among the legal opinion leaders, through the critical and practical analysis of the collected public and private commentary. The consensus presupposes the support of the primary actors in the process, without whose support the reforms cannot be effectively implemented.
  5. assistance to the Partner Country on the design of the recommendations for legal process reform. Such assistance aids the Partner Country in tailoring the reforms very carefully to fit the indigenous legal conditions in a practicable and culturally acceptable manner.
  6. the issuance of individual reports by ISDLS and the Partner Country, following each phase of the Study. These publications ensure accuracy of the Study. By disseminating the Study's achievements to a full audience of the Partner Countrys legal community, these publications receive legal community support for the proposed reforms and allow other countries to achieve similar objectives in legal modernization.

B. Methodology: The Legal Study Group Another key to both prior studies and effective reform has been the establishment of legal study groups. The study groups represent a broad-based group of legal professionals (judges, law professors, public and private attorneys). The study group members know both the practices and problems and are thus in an advantageous position to design the solutions. Approximately ten to fifteen members from a city, region, or district can provide this basic information. By exchanging self-criticisms of their respective legal systems, the U.S. delegations and the Partner Country Study Groups of past ISDLS projects have been able to generate a shared confidence and candor. Beyond the materials each delegation exchanges, most of what is learned about the other'Fs system comes from personal interaction. Each day of an ISDLS program, hosted in a Partner Country, includes an intensive twelve-hour day, which is divided into a general session, (usually attended by approximately 150 people), small group, private discussions with the Study Group following the daily general session, and a joint-delegation gathering in the evening. These encounters have generated the collaborative understanding that has proven vital to a constructive, professional, and cross-national relationship.

II. ISDLS
ISDLS is in a superior position to achieve the objectives of the Study. As a non-profit organization, ISDLS specializes exclusively in the reform and modernization of legal processes. The ISDLS specialization grew out of a similar effort in San Francisco by judges and lawyers to modernize the California courts during the 1980s. These same judges and lawyers, who were instrumental in the creation of these modern techniques, now serve as the ISDLS delegates. As ISDLS delegates, the team has applied its legal expertise and pioneering spirit to foreign legal reform. Foreign legal professionals who have sought the ISDLS's assistance have benefited from the ISDLS teams dedication to the dissemination, creation, and implementation of modern processes.

Lasting Jordanian legal reform cannot succeed without a thorough observation of the modern institutions and processes, accompanied by discussions with legal professionals who are experienced in legal reform, experts in the field of modern legal mechanisms, and informed about the existing legal system and tradition in Jordan. San Francisco, where ISDLS is headquartered, has the unique capacity of offering the following: (1) the capacity to expose all of the modern legal mechanisms of interest to Jordan; (2) a city, famous for its multi-cultural population and diverse legal community; (3) the opportunity to confer with a collection of judges, lawyers, legal scholars, and court administrators, who are the leaders in the study and operation of these mechanisms; (4) the observation of the necessary administration and functions of the institutions which house the mechanisms; and (5) the opportunity to work, in a collaborative fashion, with legal professionals who understand the Jordanian legal process and legal tradition.

In addition, the following ISDLS strengths distinguish the Institutes unique capacity to meet Jordan and the USIA's objectives.

First, ISDLS delegates are the leaders in both the U.S. procedural reforms of interest to Jordan and in the adaptation of those reforms to a diverse array of legal environments. Case management and early neutral evaluation have their genesis in San Francisco. In recognition of this leadership, under the Civil Reform Act of 1991, Congress designated the San Francisco federal court as one of only three demonstration districts in the entire country. As such, Northern California is the only U.S. district whose federal courts use all forms of court-annexed ADR, including arbitration, mediation, early neutral evaluation, and judicial settlement. In addition, only San Francisco has a full-time ADR Program Coordinator, who is responsible not only for the administration of the ADR programs, but also for the training of the ADR neutrals necessary for an effective ADR program. Any ADR reform requires some accompanying administrative structuring, which San Francisco has the capability of showcasing in its federal court.

Second, ISDLS has maximized cost-sharing in all facets of its past programs. The participating American judges, lawyers, mediators, court administrators, and the ISDLS Board of Directors have informed ISDLS that they are committed to donating their time to this Study, as they have in all ISDLS legal studies. ISDLS has recently hired an experienced project administrator in order to stimulate U.S. private sector support. In addition, the Ministry of Justice has again offered to sponsor an additional ten delegates to observe the operation of U.S. dispute resolution mechanisms.

Third, ISDLS knows that case management and ADR cannot be introduced to an indigenous legal system without professional consideration to the existing traditional processes, necessary for the effective administration of these mechanisms. In its detailed reports and assessments from past legal studies in, inter alia, Egypt, the Palestinian National Authority, Tunisia, and India, ISDLS has been able to work with the Partner Country legal study groups to determine points of convergence between the two systems in order to facilitate the incorporation of modern dispute resolution mechanisms with the least possible disruption to the indigenous legal system.

Fourth, ISDLS has already completed half of the Study. In two previous phases (noted above), ISDLS exposed Jordanian lawyers, judges, and academics to modern U.S. dispute resolution functions and mechanisms. ISDLS provided a theoretical orientation through authoritative papers and lectures, question and answer sessions, and panel discussions. The ISDLS also allowed Jordanian experts to observe critical features of the U.S. process through demonstrations, again followed by question and answer periods. The orientation to these processes and the cultivation of Jordanian interest in adapting them to local needs was further developed in daily seminars with a select number of Jordanian legal opinion leaders. In each of the ISDLS studies, a legal reporter transcribed the discussions of every meeting and seminar held during the programs. The rigorous detail of the transcriptions help to substantiate the comprehensive and reliable nature of the studies. The ability to complete the Study, given prior progress, would preserve continuity and achieve economies of scale which other groups cannot match.

Fifth, ISDLS has empirically demonstrated a keen ability to achieve its program objectives. Having had vast experience in the assessment and reform of legal processes throughout the world and, in particular, the Middle East, ISDLS has conducted legal studies in thirty countries. Specifically, ISDLS has completed successful assessments in Egypt, the Palestinian National Authority, Tunisia, and India. The study in Egypt has led to significant reforms in the country's civil justice process (case management and judicial mediation). The Egyptian study has also led to a major publication in a leading international law journal. The Palestinian study has also served as the authoritative assessment of civil and criminal justice processes for the U.S. government and international organizations, such as the World Bank. An Indian assessment will also be published this winter in the New York University Journal of International Law and Politics.

Sixth, ISDLS has a unique acumen in the study and assessment of the civil law tradition, similar to the legal tradition in Jordan. Of the thirty countries with whom ISDLS has worked, twenty have civil law traditions. ISDLS has also conferred with over 125 International Visitors from countries with civil law traditions to discuss the problems and operation of the mechanisms within their dispute resolution systems.

Seventh, no American group other than ISDLS has the benefit of preexisting friendships and a close, collegial working relationship with the Jordanian delegates, who will be responsible for the design of civil justice modernization. The ISDLS has worked with over 150 Jordanian legal professionals since 1994 on the modernization of Jordan's dispute resolution processes. Both the Study Group and ISDLS are eager to build on the momentum of prior meetings.

Finally, Phases Three and Four of the Study will benefit from the success of past ISDLS Legal Studies of Jordan and of other nations. The Study will achieve several complementary objectives. The Study will enhance the U.S. and Jordan's mutual understanding of each other through an exchange of observations and discussions on their respective legal systems and legal traditions. The Study's exchange will also encourage a greater sharing of information between the two countries. Also, the Study will promote long-term institutional and individual ties between Jordan and the U.S. Projects, such as past ISDLS legal studies, that combine U.S. interests of democracy, support for international commercial integration, conflict resolution, and professional exchange are designed to have a cumulative impact at a minimum cost. In working with Jordan on a comparative legal study, ISDLS will underline the many points of common interest with respect to the educational and cultural interests, developments (legal and non-legal), and achievements of the U.S. and Jordan in order to assist in the development of friendly, sympathetic and peaceful relations between the U.S. and Jordan.