Adapted from “An Introduction to Globalization, Lawyers, and Emerging Economies: The Case of India,” by David B. Wilkins, Vikramaditya S. Khanna, and David M. Trubek, in The Indian Legal Profession in the Age of Globalization: The Rise of the Corporate Legal Sector and Its Impact on Lawyers and Society (Cambridge University Press, 2017)
In 2011 the Harvard Law School Center on the Legal Profession launched the Globalization, Lawyers, and Emerging Economies (GLEE) research project. GLEE examines how globalization is reshaping the market for legal services in important emerging economies, such as India, Brazil, and China (its initial three countries of investigation), and how these developments are in turn contributing to the transformation of the political economy in these countries and the reshaping of the global legal services market. The GLEE project charts the transformation in the legal services market from a signal change in how key emerging economies relate to the global economy that began in the 1990s. During this period, India, Brazil, and China each made a decision to move from a “closed” economic model to one that is increasingly “open” to both foreign investment and private enterprise, including the privatization of many state-owned assets.
This global shift had a major impact on the legal system in each country, fueling a growing demand for new laws, regulations, and administrative apparatus to facilitate this new economic activity and to interface with the broader global economic and political environment. This, in turn, has created the need for lawyers capable of practicing law within this new legal and regulatory environment, particularly in corporate law fields such as mergers and acquisitions, project finance, securities, and initial public offerings that are increasingly being demanded by the growing number of foreign and domestic companies operating in these jurisdictions. Although each of these countries has, to a greater or lesser extent, called on the international law firms that are eager to serve these new markets to provide this necessary expertise, each has also developed an important domestic corporate legal sector as well.
Today, this new corporate legal elite—lawyers who work in law firms that serve a clientele composed primarily of foreign and domestic corporations, as well as lawyers who work in the internal legal departments of the growing number of corporations based in or serving these new markets—has significantly increased in size and importance in many emerging powers in the Global South. Each of the three countries we are currently studying, for example, can now boast several law firms composed of hundreds (and in the case of China, thousands) of lawyers, as well as corporate legal departments, such as the 500-lawyer general counsel office of India’s Tata Group, that are almost as large. GLEE maps the terrain of this developing “corporate hemisphere” of the bar in emerging economies, including the new forms of corporate legal practice that are being developed in these jurisdictions, and examines how this sector is influencing—and being influenced by—other parts of the legal, economic, political, and social order in these countries.
India is the most diverse country in the world, with countless languages, many different religions, and substantial regional diversity. This diversity makes forming consensus for legal reform difficult—and critical.
To study these issues, GLEE assembled a multinational, multidisciplinary, and multi-institutional team of researchers. In India, this team consists of more than 30 scholars from leading institutions in India, the United States, and Europe incorporating theoretical and methodological insights from a variety of disciplines including law, sociology, political science, international relations, psychology, organizational behavior, and economics. In conducting this research, we did not begin with a predefined model that we ought to apply. Rather, GLEE is committed to allowing our theoretical insights to emerge from a detailed examination of the facts on the ground in each country. This approach was particularly suited for studying jurisdictions where we were attempting to understand a set of phenomena that were changing rapidly as the participants in the new corporate hemisphere sought to keep pace with, and respond to, developments in the domestic and international arenas.
In June 2017 the research underpinning GLEE’s research into the Indian legal profession was published by Cambridge University Press in a major volume entitled The Indian Legal Profession in the Age of Globalization: The Rise of the Corporate Legal Sector and Its Impact on Lawyers and Society. The book presents original empirical research documenting how India’s legal profession is being transformed by the global shift that the world’s largest democracy embarked on in 1991, when a balance-of-payments crisis led the government to abandon the closed, state-dominated model of Indian socialism that had governed its economy since the country’s independence in 1947 and move toward liberalization of its domestic markets and increasing integration into global markets. As the book’s empirical studies demonstrate (see below), this shift in India’s economy produced a new corporate legal hemisphere that is playing an increasingly important role in the Indian legal profession, the development of the Indian economy, the elaboration of its administrative state, and India’s capacity to exert its influence in the new global order.
This issue of The Practice presents an overview of the book’s major findings and takes a deep-dive into two specific subject areas: foreign law firms in India and the lawyer’s role in the policymaking process. We also hear from two of India’s most senior lawyers on the future of the profession in the country—Fali Sam Nariman, the former additional solicitor general and a founding father of the modern Indian legal profession, and Dhananjaya Y. Chandrachud, a sitting judge on the Supreme Court of India who is currently involved in some of the country’s most important legal questions.
Before delving into the heart of this issue, the question of “Why India?” may be on the minds of many of our readers. On the simplest level, India is, of course, a very large country with an enormous population, significant natural and economic resources, and a growing importance on the world stage. While these rationales certainly are all true, they simply scratch the surface of India’s global importance. To set the stage as to why we should all care—and care deeply—about India (and therein the Indian legal profession), Professor Vikramaditya S. Khanna of the University of Michigan School of Law outlines what he calls the country’s “4 D’s”:
- Development. India is a country striving for development, a process in which the law and lawyers play a critical role (e.g., via opening up the country for foreign direct investment or lifting other sorts of regulatory restrictions).
- Democracy. India is the world’s largest democracy, which unlike many other emerging economies has remained largely free of military dictatorship. It therefore provides an important test of how the legal profession respond to the pressures of globalization in an environment in which the state and its institutions remain largely open to democratic control.
- Diversity. India is the most diverse country in the world, with countless languages (23 of which are “official”), many different religions, and substantial regional diversity. This diversity makes forming consensus for legal reform difficult—and critical.
- Demography. India has a population that is growing younger every year, with roughly 750 million people younger than age 40. Depending on one’s perspective—and the number of jobs created—this demography could be either a great dividend or a great disaster. What is clear is that it creates a great urgency for development.
Law plays a critical role in negotiating all these four factors. And, of course, that means the legal profession is at the center of India’s present and future development. For these reasons, whether or not one has a direct interest in India, its progress is of critical importance whether you sit in Delhi, Abu Dhabi, London, New York, San Francisco, Hong Kong, or Singapore.
In addition to these general features, four aspects of India’s historical and cultural context made it an ideal place to study the interplay among lawyers, globalization, and state development:
- An embedded social structure based on caste, clan, and kinship networks that operates alongside formal mechanisms of governance and exchange
- A legacy of colonization that produces complex and conflicting responses to foreign influence
- Deep-seated stratification and divisions within the legal profession that produce continuing conflict about the profession’s proper role in society
- A legal and regulatory structure that seeks both to produce and to harness change
It is against this background that GLEE began its research in India, investigating a broad range of topics relating to the development of a distinct corporate legal sector in India in the years following the country’s global shift in 1991, and how that sector is in turn affecting other sectors of the Indian legal profession and the development of the Indian state.
A glance inside the book
The Indian Legal Profession in the Age of Globalization: The Rise of the Corporate Legal Sector and Its Impact on Lawyers and Society (Cambridge University Press, 2017)
The India volume is divided into seven parts. The first section, Setting the Stage, contains an introduction and an overview titled “India Rising and the Rise of the Modern Indian Legal Profession” that summarizes key historical elements in the development of India and the Indian legal profession. This introductory section is followed by six substantive sections: The Growth of the Corporate Legal Core; New Actors and Functions within the Corporate Core; Regulation and Foreign Competition; Old Lawyers, New Lawyers, and Transforming Roles; Legal Education; and Capacity Building. The following provides a brief summary of each of these substantive sections.
The Growth of the Corporate Legal Core. The chapters in this section address the question at the heart of the GLEE project: Has India’s global shift since 1991 produced a distinct corporate hemisphere of the Indian bar, and if so what are its central attributes? The section answers this question by presenting original quantitative and qualitative data on the central actors in the corporate arena—large law firms (Chapter 3, “Mapping India’s Corporate Law Firm Sector,” by Ashish Nanda, David B. Wilkins, and Bryon Fong) and in-house counsel (Chapter 4, “Globalization and the Rise of the In-House Counsel Movement in India,” by David B. Wilkins and Vikramaditya S. Khanna). The section also contains a chapter on one of the primary new activities generated by India’s engagement with economic globalization and cross-border mergers and acquisitions (Chapter 5, “The Impact of Globalization and Cross-Border Mergers and Acquisitions on the India Legal Profession,” by Umakanth Varottil).
New Actors and Functions within the Corporate Core. The chapters in this section explore how the development of India’s new corporate legal hemisphere is in turn spawning the development of new actors and functions within these emerging institutions, and how these changes are shaping the process of mimesis and differentiation within these organizations. Specifically, the section explores the career trajectories and motivations of two groups of relative newcomers who are helping to redefine India’s corporate sector: a new generation of Indian corporate lawyers who have chosen to “peel off” from the “Big 5” law firms that have come to dominate the Indian corporate legal market since 1991 (Chapter 6, “Being Your Own Boss: The Career Trajectories and Motivations of India’s Newest Corporate Lawyers,” by Jayanth K. Krishnan and Patrick W. Thomas) and a growing number of women lawyers who have found a surprisingly receptive home in India’s new corporate hemisphere (Chapter 7, “Women in India’s ‘Global’ Law Firms: Comparative Gender Frames and Advantages of New Organizations,” by Swethaa Ballakrishnen). The section also explores two relatively new activities for India’s corporate elite: the rise of a new pro bono culture in India’s corporate law firms (Chapter 8, “Pro Bono and the Corporate Legal Sector in India,” by Arpita Gupta) and an expansion in the role corporate lawyers are playing in the development of Indian public policy (Chapter 9, “How India’s Corporate Law Firms Influence Legal, Policy, and Regulatory Frameworks,” by Bhargavi Zaveri).
Regulation and Foreign Competition. The chapters in this section explore how economic globalization has put pressure on India’s regulatory system, particularly around the entry of foreign lawyers, and how this pressure is in turn challenging other forms of regulation in both India and the countries seeking to serve the Indian legal market. The section begins by exploring how the U.K. “Magic Circle” law firms have attempted to serve the Indian legal market as a part of their own transformation to becoming global entities (Chapter 10, “Theories of Law Firm Globalization in the Shadow of Colonialism: A Cultural and Institutional Analysis of English and Indian Corporate Law Firms in the Twentieth and Twenty-First Centuries,” by John Flood). It then addresses how India has addressed the potential entry of foreign law firms (Chapter 11, “Globalization of the Legal Profession and Regulation of Law Practice in India: The ‘Foreign Entry’ Debate,” by Aditya Singh). Finally, the section addresses how this debate has in turn affected the overall regulation of the legal profession in India (Chapter 12, “Festina Lente or Disguised Protectionism: Monopoly and Competition in the Indian Legal Profession,” by Rahul Singh).
Old Lawyers, New Lawyers, and Transforming Roles. The chapters in this section explore how the same process of economic globalization that has spawned India’s new corporate law firms and in-house legal departments is creating new players in the global corporate hemisphere while also reshaping other traditional sectors of the Indian bar who now must cooperate and/or compete with those in the core corporate sector. The new competitors include India’s burgeoning legal process outsourcing (LPO) sector (Chapter 13, “The Evolving Global Supply Chain for Legal Services: India’s Role as a Critical Link,” by Vikramaditya S. Khanna), while the country’s “Grand Advocates,” who traditionally occupied the top of the Indian legal profession’s prestige and financial hierarchy (Chapter 14, “Grand Advocates: The Traditional Elite Lawyers,” by Marc Galanter and Nick Robinson), and the country’s “small-town lawyers,” who traditionally have occupied the lower rungs in the profession’s hierarchy (Chapter 15, “Aggregation of Land for a Growing and Globalizing Economy: The Role of Small-Town Lawyers in India,” by Pavan Mamidi), have had to adapt to the potentially disruptive presence of India’s new corporate bar.
Legal Education. The chapters in this section focus on the impact of India’s rising corporate hemisphere on the globalization of knowledge and the transformation of the country’s legal education sector. The chapters explore the impact of globalization on the project of creating elite legal education by pushing India’s National Law Schools to respond to the pressures of globalization, both in their curriculum (Chapter 16, “Responding to the Market: The Impact of the Rise of Corporate Law Firms on Elite Legal Education in India,” by Jonathan Gingerich and Nick Robinson) and in how these schools interface with the new corporate employment market for law school graduates (Chapter 17, “The Anatomy of Legal Recruitment in India: Tracing the Tracks of Globalization,” by Jonathan Gingerich, Vikramaditya S. Khanna, and Aditya Singh). Another chapter examines how globalization and the rise of the corporate legal sector are affecting the goal of using the legal profession as a vehicle for social mobility for India’s disadvantaged minorities (Chapter 18, “The Making of Legal Elites and the IDIA of Justice,” by Shamnad Basheer, K. V. Krishnaprasad, Sree Mitra, and Prajna Mohapatra). Finally, the section concludes by exploring India’s first attempt at creating an expressly global law school (Chapter 19, “Experiments in Legal Education in India: Jindal Global Law School and Private Nonprofit Legal Education,” by C. Raj Kumar).
Capacity Building. The chapters in the final section examine the impact of India’s rising corporate sector on the globalization of governance in trade (Chapter 20, “Equalizing Access to the WTO: How Indian Trade Lawyers Build State Capacity,” by Gregory Shaffer, James Nedumpara, Aseema Sinha, and Amrita Bahri), the elaboration of the Indian administrative state (Chapter 21, “Indian Corporations, The Administrative State, and the Rise of Indian Trade Remedies,” by Mark Wu), and investment arbitration (Chapter 22, “Rising India in Investment Arbitration: Shifts in the Legal Field and Regime Participation,” by Mihaela Papa and Aditya Sarkar).
Four key questions
The rich empirical data presented in the India volume provides important insights into how India has responded to the global shift of the 1990s and how these changes impact broader issues regarding lawyers, globalization, and development that the GLEE project studies. Four key questions are at the heart of the GLEE project:
- To what extent has the Anglo-American model of corporate legal practice shaped the ecology of India’s emerging corporate hemisphere?
- What processes have contributed to the diffusion of the Anglo-American model of corporate legal practice?
- How has India’s political, economic, and cultural contexts nevertheless reshaped these global transplants to produce uniquely Indian institutions and practices within this increasingly globalized environment?
- What are the implications of this hybridized and conflicted reality for India’s political economy, social structure, and economic development?
Below we provide a summary of the key findings with respect to these four questions.
Diffusion of the Anglo-American model
The empirical studies in the India volume book provide ample evidence that the core elements of the Anglo-American model have been diffusing to India since the country liberalized its economy in 1991. As Nanda, Wilkins, and Fong (Chapter 3) document, India’s Big 5 law firms self-consciously emulated many of the Cravathist and neo-Cravathist policies of U.S. and U.K. large law firms—practices that allowed the Big 5 to supplant, if not fully replace, the older and more prestigious “British Raj” firms whose failure to respond to these “disruptive innovations” left them unable to take full advantage of the opportunities presented by India’s expanding corporate legal market. Similarly, Wilkins and Khanna (Chapter 4) demonstrate that both private and state-owned Indian companies are beginning to emulate the foreign multinationals operating in India by developing in-house legal departments that resemble in aspiration, if not always in fact, the kind of sophisticated internal counsel that have become a standard feature of the corporate legal hemisphere in the United States and many European countries.
Nor has this diffusion been limited to the structural features of the Anglo-American models of the large law firm and in-house legal department. Key elements of the practices of these institutions are also increasingly becoming a part of the Indian corporate legal ecosystem. Thus, Varottil (Chapter 5) describes how Indian law firms are increasingly trying to build capacity to engage in cross-border mergers and acquisitions (M&A) by emulating Western models. Similarly, Gupta (Chapter 8) documents how India’s top law firms are beginning to import Anglo-American approaches to pro bono to India, in part to establish their bona fides as world-class firms on the global stage.
India’s Big 5 law firms self-consciously emulated many of the Cravathist and neo-Cravathist policies of U.S. and U.K. large law firms—practices that allowed the Big 5 to supplant, if not fully replace, the older and more prestigious “British Raj” firms.
Even in areas where Indian law and culture would seem to make diffusion difficult, important mimesis is nevertheless taking place. Consider, for example, the practice of seeking to shape or influence the legislative process. Such “lobbying” has traditionally been considered unethical in India, even when not accompanied by any illicit payment or quid pro quo. Yet, as Zaveri (Chapter 9) demonstrates, the Western model of an influential lawyer in a corporate law firm commenting on proposed or pending legislation is becoming increasingly common among Indian law firms. Wilkins and Khanna (Chapter 4) confirm that a growing number of general counsel in Indian companies are also increasingly playing this role, emulating a practice that is now de rigueur in the Anglo-American context.
The empirical research presented in the volume underscores that India’s new corporate hemisphere is not simply the product of the diffusion and mimesis of Anglo-American models. Before exploring these differences, however, it is important to first examine the complex ways in which Western practices have spread to the Indian corporate legal market. As we will see, these diverse modes of transmission have played a key role in the creation of India’s hybridized corporate legal ecosystem.
The processes of globalization
It is not surprising that India’s emerging corporate legal sector has adopted many of the attributes of the Anglo-American model. The global shift that India embarked on when it liberalized its economy in 1991 opened the country to the three forces of globalization—economic globalization, the globalization of knowledge, and the globalization of governance—through which dominant global models such as the Anglo-American mode of the production of law typically travel. Thus, when India opened its markets to foreign investment, the Western companies that arrived brought with them a demand for outside legal representation, and eventually internal legal counsel, that resembled the Anglo-American models that they were used to in their home jurisdictions (Nanda, Wilkins, and Fong, Chapter 3; Wilkins and Khanna, Chapter 4).
This demand encouraged Indian law firms to develop structures and practices—e.g., a promotion-to-partnership tournament, functional division of work along corporate legal specialties such as M&A, project finance, initial public offerings, etc.—that appeared to resemble those found in U.S. and U.K. large law firms. And to the extent that India’s new corporate legal elite paid insufficient attention to the demand by their clients for Western models, the U.S. and U.K. global firms that continue to serve the Indian market, notwithstanding India’s regulatory ban on foreign law firms practicing in the country, have been there to continue to put the pressure on their Indian counterparts by their ability to “fly in and fly out” to serve both multinational and Indian corporates, or to reach the market through joint ventures and other thinly veiled cooperative associations with local Indian law firms (Flood, Chapter 10; A. Singh, Chapter 11; Nanda, Wilkins, and Fong, Chapter 3). Indeed, the forces of economic globalization, including the growing presence and influence of transnational actors such as NGOs, Western and international bar organizations, and various trade organizations have pushed India’s large law firms and in-house legal departments to go beyond structural mimesis to adopt normative policies such as gender equality (Ballakrishnen, Chapter 7) and pro bono (Gupta, Chapter 8) that helped to make their Western clients feel at home.
India’s five largest and most influential law firms retain important elements that are deeply connected to India’s history, culture, and values.
These developments have been reinforced by both the globalization of knowledge and the globalization of governance. With respect to the former, notwithstanding considerable resistance, India’s elite National Law Schools have slowly begun to adapt their curricula to respond to the growing demand by both law firms and law students for courses that will prepare the next generation of Indian lawyers to work in the new corporate hemisphere (Gingerich and Robinson, Chapter 16). Similarly, Shaffer, Nedumpara, Sinha, and Bahri (Chapter 20) describe how the Indian government established a chair in WTO law at the prestigious National Law School of India University in Bangalore to encourage the dissemination of knowledge about the best practices in this field for lawyers going into both the public and private sectors. Indian students who want even more exposure to Western models can now attend one of a growing number of private law schools—including schools like the Jindal Global Law School, where global models and partnerships are expressly encouraged—or join the increasing number of Indians pursing an LLM from a U.S. or U.K. university (Gingerich and Robinson, Chapter 16; Kumar, Chapter 19). The fact that corporate employers increasingly value these global credentials and connections has only hastened the diffusion of knowledge about Anglo-American practices and standards (Nanda, Wilkins, and Fong, Chapter 3; Wilkins and Khanna, Chapter 4).
Similarly, India’s growing engagement with global governance regimes such as the WTO, trade remedies, and bilateral investment treaties has also predictably served to accelerate the diffusion of Western models and practices. As Shaffer, Nedumpara, Sinha, and Bahri (Chapter 20) document, the Indian government has put significant pressure on India’s corporate law firms to develop the legal and structural capacity to represent the country’s interests in the WTO. These efforts, as the authors make clear, were fueled by India’s desire to become a leading voice in the new BRICs movement, which was seen by the government as a way to reset the balance of the global governance regime so that it better protected the interests of India and other emerging powers. Both Wu (Chapter 21) and Papa and Sarkar (Chapter 22) tell a similar story with respect to antidumping proceedings and bilateral investment litigation. Indeed, as Rahul Singh (Chapter 12) and Aditya Singh (Chapter 11) note in their respective contributions, even India’s notoriously restrictive regulatory limits on the ability of foreign lawyers to practice law in India are being challenged through the mechanisms of global governance—which are in turn putting pressure on domestic regulation that restricts the ability of India’s new corporate law firms to adopt Anglo-American practices such as large multicity partnerships, limited liability, and sophisticated websites and other forms of advertising.
While important elements of Anglo-American practice have diffused into virtually every part of India’s corporate ecosystem, uniquely Indian norms, structures, and practices remain critical.
Although these studies highlight how the globalization of governance has helped to diffuse the Anglo-American mode of the production of law in India, they also underscore that the mechanisms that produced this diffusion have also helped to shape the Indian corporate ecosystem in ways that differ from standard Anglo-American models. Thus, Wu (Chapter 21) notes that the principal “norm entrepreneurs” responsible for building India’s capacity in antidumping and other trade remedies were not the standard transnational actors seeking to transplant Western practices to the Indian context that a straightforward diffusion story might imply. Instead, the policymakers who crafted India’s policy in this area were primarily midlevel government officials, often with relatively little international experience. Although these actors borrowed from Western models, they also incorporated many distinctly Indian elements into how the policy was created, implemented, and sold to Indian companies. These local features, Wu argues, have helped to shape how the Indian corporate law firms that represent both Indian corporates and the government operate, and have helped India to become one of the leading countries in the world in the area of trade remedies. Both Shaffer, Nedumpara, Sinha, and Bahri (Chapter 20) and Papa and Sarkar (Chapter 22) document similar hybridized outcomes in the areas of WTO law and bilateral investment.
Nor is the trade area unique in this respect. Although important elements of Anglo-American practice have diffused into virtually every part of India’s emerging corporate ecosystem, the studies presented in this volume underscore the continuing importance of uniquely Indian norms, structures, and practices in virtually all areas. It is to these critical local elements, and the resulting “glocal” synthesis, that we now turn.
Local resistance and glocal synthesis
We hypothesized that the new corporate law sector in emerging countries such as India would find the straightforward transplantation of Anglo-American models neither possible nor desirable. The empirical studies in this volume support this conclusion. Thus, notwithstanding many superficial similarities to their U.S. and U.K. counterparts, Nanda, Wilkins, and Fong (Chapter 3) demonstrate that India’s five largest and most influential law firms nevertheless retain important elements that are deeply connected to India’s history, culture, and values. To a greater or lesser extent, family and communal ties remain critically important in each of these major Indian corporate firms—ties that have both contributed to their success by cementing connections to important clients but also made even the largest and most prestigious of these organizations vulnerable to defection or even dissolution when communal relationships are broken or are seen as too much of an impediment to those outside these traditional structures. Indeed, Krishnan and Thomas (Chapter 6) argue that the continuing importance of communal ties has contributed to the fracturing of India’s corporate ecosystem through the creation of a growing number of “peel off” firms, many of which purport to embrace traditional Cravathist policies of meritocracy and egalitarianism to a greater degree than their more established Big 5 competitors, while eschewing cultural practices such as “ragging” that the authors argue are entrenched in the social fabric of many Indian institutions. Yet even these second-generation Indian corporate firms have had a difficult time emulating the Western models they purport to adopt since, as Flood (Chapter 10) argues in his contribution to this volume, those models are themselves shifting from the traditional “production of producers and production by producers” that was at the heart of the traditional Cravathist model, to the much more entrepreneurial and competitive policies of neo-Cravathism, to the bureaucratization and uncertainty of the “new institutionalism” of the postglobal financial crisis era.
Given the massive delays in India’s court system and India’s existing tradition of “social action litigation,” the traditional Western model of pro bono practice was neither practical nor useful.
At the same time, elements of India’s history, culture, and traditions have helped to shape the Indian corporate ecosystem in ways that paradoxically have ended up promoting values central to the Anglo-American model better than are accomplished in the typical U.S. or U.K. law firm. Three chapters exemplify this paradox. The first, by Ballakrishnen (Chapter 7), documents how India’s new corporate law firms have a better record at retaining and promoting women lawyers than either the traditional Indian litigating bar or similar law firms in the West. Ballakrishnen argues that the fact that these corporate structures provide a “new frame” that has not yet been gendered, while at the same time arising in the existing framework of India’s traditional social structure in which most women lawyers have access to relatively inexpensive child care and other domestic help through extended families or low-wage workers, has produced an environment in which female lawyers do not feel the same kinds of pressures as their Western counterparts in similar law firms and are therefore more able to succeed.
Gupta’s portrait (Chapter 8) of the growth of pro bono in Indian law firms provides a second example of how global norms can intersect with local conditions to produce impressive results. As Gupta explains, Indian law firms have not followed the traditional Western model of creating pro bono programs that revolve around litigation on behalf of individual clients who otherwise could not afford a lawyer. Given the massive delays in India’s court system and India’s existing tradition of “social action litigation” through which judges can directly address systemic issues through the courts on their own initiatives, the traditional Western model was neither practical nor particularly useful. Instead, Indian law firms have created a model of pro bono that builds on norms of corporate social responsibility that highlights providing assistance to social entrepreneurs and business, with the goal of direct poverty alleviation—an approach that many advocates, including many in the West, believe is more likely to produce meaningful change than the traditional litigation-centered model typically followed by Anglo-American firms.
Khanna’s analysis (Chapter 13) of India’s burgeoning LPO industry provides a third example. For more than a century, Anglo-American law firms patterned on the Cravathist model have been held up as the gold standard for providing the best legal services to clients. But, as Khanna documents, in addition to producing law firms that have attempted to copy this Anglo-American model, India has pioneered a new mode of the production of law that is rapidly displacing Anglo-American law firms and other traditional legal service providers, particularly when it comes to basic legal work. This new disruptive innovation not only has the potential to continue to move up the value chain by combining low-cost labor with technology and process management to produce work that is of higher quality than what is typically produced by traditional law firms, but is also spreading geographically to both developing and developed jurisdictions in a way that potentially threatens existing patterns of work allocation and employment even in mature legal markets such as the United States.
India’s National Law Schools have created their own recruiting process that ingeniously combines formal process with informal peer pressure to produce an efficient system for matching students to jobs. This student-created system avoids many of the problematic issues that plague contemporary Anglo-American models.
Even when local norms have produced more resistance to Anglo-American models than convergence with them, the resulting synthesis underscores how the spirit of “jugaad”—a common phrase used to capture the ability of Indians to find a creative workaround to seemingly intractable problems—can create novel approaches that produce surprisingly effective results. Gingerich, Khanna, and Singh (Chapter 17) present a perfect example of this prized character trait in their discussion of the inventive recruiting system in India’s National Law Schools. As the authors argue, these elite law schools were originally set up largely to encourage talented Indian students to enter government service or to provide access to justice for India’s millions of poor citizens. Nevertheless, as the authors document, in recent years the overwhelming majority of the top students at these institutions now pursue work in corporate law firms and other areas of the corporate ecosystem (see also Gingerich and Robinson, Chapter 16).
At the same time, much of the faculty remains hostile to this corporate turn in employment patterns and therefore has little interest in setting up a formal recruiting system to accommodate these new employers. Even those faculty members who are sympathetic to the students’ desires for corporate jobs have little relevant experience that would lead them to be able to establish anything like the kind of recruiting system found in law schools in the United States and United Kingdom. As a result, students in India’s National Law Schools have created their own recruiting process that ingeniously combines formal process with informal peer pressure to produce an efficient system for matching students to jobs. This student-created system goes beyond basic functionality and avoids many of the problematic issues (e.g., students hogging offers) that plague contemporary Anglo-American recruiting models while building a unique camaraderie among graduates that will assist their future careers.
When local norms have produced more resistance to Anglo-American models than convergence with them, the resulting synthesis underscores how the spirit of “jugaad”—a common phrase used to capture the ability of Indians to find a creative workaround to seemingly intractable problems
Basheer, Krishnaprasad, Mitra, and Mohapatra’s account of “Increasing Diversity by Increasing Access” (Chapter 18) offers a final compelling example. As any observer of the U.S. and U.K. legal scene can attest, diversity has become a hot-button topic for law schools and law firms in the West, yet relatively little attention has been paid to finding ways to get more students from severely disadvantaged backgrounds to apply to law school in the first place. Precisely because India increasingly relies on a single examination, the Common Law Admission Test (CLAT), to sort applicants—which itself is administered only in English and rewards the kind of expensive “cram courses” only available to India’s upper classes—Basheer and his colleagues have chosen to develop a program that works with India’s poorest ethnic and religious minorities to increase the pipeline of students with a realistic opportunity to attend one of the country’s elite National Law Schools. The results underscore what might be achieved if a similar program were instituted in countries like the United States, where entrance tests are increasingly playing a similarly decisive role in restricting access to the legal profession.
In addition to documenting that the growth of India’s corporate legal hemisphere is more than a simple diffusion story, the chapters in this volume also provide some important clues as to why the ecology of the corporate legal system in this country has evolved in such a hybridized form. Principal among these reasons is the continuing importance of the state in the development of India’s new corporate legal sector. As several chapters underscore, the state has played a key role in the development of the ecology of India’s new corporate legal sector, including the creation of the National Law Schools, which have provided the lion’s share of the talent and intellectual capital that has fueled the growth of the new corporate elite (Gingerich and Robinson, Chapter 16), the promotion of the country’s legal capacity building in the areas of trade and trade remedies (Shaffer, Nedumpara, Sinha, and Bahri, Chapter 20; Wu, Chapter 21), the growing area of bilateral investment (Papa and Sarkar, Chapter 22), and in supporting the regulatory structure that has allowed the Indian corporate bar to develop relatively free from foreign competition (R. Singh, Chapter 12).
Paradoxically, other chapters highlight the role played by the relative weakness of the Indian state. For example, Galanter and Robinson’s (Chapter 14) account of India’s Grand Advocates underscores that some members of the Indian bar are arguably even more powerful than the state (and certainly more powerful than India’s new corporate legal elite). These traditional appellate advocates—many of whom can date their influence back to the time of independence—are as, if not more, important than India’s top judges in interpreting the law. As a result, they command compensation and prestige that far exceeds that of even the most highly paid and regarded partner in an Indian law firm or general counsel of a major Indian company. Significantly, the authors also document that in this rarified sector, traditional gender hierarchies—as well as hierarchies of caste, class, and communal ties—are as important as they ever have been.
Notwithstanding its recent growth, the corporate legal sector still remains a tiny fraction of India’s more than one million lawyers.
At the opposite end of the professional hierarchy, Mamidi (Chapter 15) documents how India’s “small-town lawyers” are playing a critical role in the land-acquisition efforts of major Indian and multinational companies. Although these traditional practitioners can be described in one respect as agents of globalization, as Mamidi makes clear, the source of their effectiveness lies in their preglobalization ties to the country’s underdeveloped legal system that rewards local ties, particularly where land is at stake. Once again, it is the infirmities and not the strength of the state that is driving the hybridization that Mamidi presents.
In the end, the research presents a complex picture of globalization and localization interacting to produce a glocalized hybrid ecosystem for India’s new corporate legal elite.
The implications of a glocalized corporate ecosystem for India
As Gupta, Khanna, and Wilkins make clear (Chapter 2), notwithstanding its recent growth, the corporate legal sector still remains a tiny fraction of India’s more than one million lawyers. Nevertheless, its influence is already being felt in parts of the legal profession that extend far beyond the formal boundaries of the corporate ecosystem. Galanter and Robinson’s analysis (Chapter 14) of India’s Grand Advocates underscores these effects. Although, as the authors point out, these senior lawyers retain much of their traditional power, the development of litigation departments in India’s top law firms (Nanda, Wilkins, and Fong, Chapter 3) and increasingly sophisticated in-house legal departments in both foreign and Indian companies (Wilkins and Khanna, Chapter 4) are beginning to reshape the balance of power between India’s version of advocates and solicitors in much the same way that Flood (Chapter 10) argues has happened in the United Kingdom. Indeed, in a GLEE conference during the early stages of this research, the managing partner of one of India’s top law firms warned, in the presence of one of India’s most revered Grand Advocates, that these forces could result in the marginalization of the advocate profession if these senior lawyers did not modernize the way that they treat both junior lawyers and clients.
Mamidi also describes (Chapter 15) how India’s “small-town lawyers” are being transformed through their engagement with the process of land acquisition by Indian and foreign companies. As Mamidi documents, not only are these largely solo practitioners being introduced into the corporate ecosystem by companies seeking to use their social networks and knowledge of India’s antiquated and byzantine land laws, but some are being directly hired as in-house lawyers to do this work on a full-time basis or are forming their own law firms to serve this new corporate clientele. The fact that some of India’s ordinary lawyers, who have traditionally scraped by on a subsistence income earned by literally hustling cases on the courthouse steps (Gupta, Khanna, and Wilkins, Chapter 2), now have the opportunity to transition from the “individual” to the “corporate” hemisphere has important implications both for access to justice for those individuals living in rural India, where finding a lawyer is already difficult, and for the social structure of the Indian bar as a whole.
The rapid rise of India’s corporate legal sector has also generated something of a “war for talent” because the number of lawyers who have the skills and training to do corporate work is not large enough to meet the nearly insatiable demand. One can see the effects of this in a number of chapters. Most directly this is visible in the stratospheric growth of law firms and in-house departments, and in the concomitant rise in compensation for associates and partners in law firms and legal budgets for companies (Nanda, Wilkins, and Fong, Chapter 3; Wilkins and Khanna, Chapter 4). Moreover, one explanation for the findings of greater gender equality in Indian law firms (Ballakrishnen, Chapter 7) and the increasing interest in pro bono (Gupta, Chapter 8) is that these have been driven in part by the need to attract and retain talent in a world where there are not enough male lawyers, or lawyers who care only about financial rewards, to go around. The fact that lawyers with training and experience in corporate law are in such high demand relative to their supply may also help to explain why so many Indian lawyers have been able to “peel off” from India’s Big 5 law firms and open successful firms of their own, notwithstanding their lack of communal connections, such as family ties, or a preexisting reputation that, as we have seen, is still critical in the Indian environment (Krishnan and Thomas, Chapter 6).
The fact that some of India’s ordinary lawyers have the opportunity to transition from the “individual” to the “corporate” hemisphere has important implications both for access to justice for those individuals living in rural India and for the social structure of the Indian bar as a whole.
Indeed, the mismatch between the growing demand for corporate lawyers in India and the relatively modest supply of those who possess the requisite credentials and experience for these positions appears to be having an important effect on who is deciding to go to law school. As both Gingerich and Robinson (Chapter 16) and Kumar (Chapter 19) note, in the years following Independence and continuing until the beginning of the new millennium, law was regarded as a low-status occupation by most educated Indians. (As one of the authors in this volume explained when his mother told her friends that he had decided to go to law school, the response was often: “I thought he was a good student!”) Indeed, one of the primary reasons that the government created the National Law Schools was to counter this perception for the purpose of encouraging more top students to obtain a legal education, thereby improving access to justice for ordinary Indians and modernizing the country’s legal system. Although the National Law Schools have succeeded in raising the prestige of a career in law and the caliber of the applicant pool, they have done so in large measure by giving their students access to lucrative corporate careers (Gingerich, Khanna, and Singh, Chapter 17). This fact is, in turn, likely to affect which students decide to apply to law school and what they expect to receive from their careers, much in the same way that the tremendous increase in law firm hiring during the boom years in the U.S. legal services market transformed the expectations of American law-school applicants.
These latter changes highlight how the growth of India’s corporate ecosystem is also helping to reshape the country’s long-embedded social structure. It is important not to overstate this effect. As several chapters underscore, communal ties of caste, clan, family, religion, and region remain hugely important in the Indian corporate ecosystem (Nanda, Wilkins, and Fong, Chapter 3; Wilkins and Khanna, Chapter 4; Krishnan and Thomas, Chapter 6). But it is also important not to understate this effect either. As Gingerich and Robinson (Chapter 16) document, the fact that those who are able to obtain admission to one of India’s top National Law Schools have access to career opportunities in the corporate sector that are increasingly difficult to obtain for those without this credential is creating a new hierarchy in which elite educational credentials count as much—or in some cases even more—than communal ones. (The explosion in the number of “personal ads” that emphasize elite educational credentials over caste or communal status suggests that this may be a changing feature of Indian social and cultural life that extends well beyond the legal profession.) As Gingerich, Khanna, and Singh (Chapter 17) explain, the ties that the students form with their “batch mates” can confer the kind of continuing advantages on career development that graduation from an elite law school currently confers in the United States or United Kingdom—advantages that in the Western context have been shown to mitigate, although certainly not eliminate, the impact of social characteristics such as religion, gender, race, and social class.
To be sure, as Basheer (Chapter 18) persuasively argues, there is considerable overlap between this new educational elite and the traditional income and language markers that have always defined India’s traditional elites. And, as Basheer goes on to note, even the few members of India’s lower socioeconomic classes or castes who do manage to be admitted to India’s National Law Schools often do not have the social skills or capital to succeed in the corporate world. Nevertheless, the fact that corporate employers in both law firms (Nanda, Wilkins, and Fong, Chapter 3) and in-house legal departments (Wilkins and Khanna, Chapter 4) appear to be placing increasing value on elite educational credentials—driven in part by the growing number of returning second- and third-generation Indians who have grown up in environments where traditional communal markers are less important—suggests that India’s new corporate sector has the potential to help restructure the country’s social hierarchy. The growth of new corporate forms, such as LPO, which depend even less on traditional social connections than traditional law practice, seems likely to accelerate this trend (Mamidi, Chapter 15).
Communal ties of caste, clan, family, religion, and region remain hugely important in the Indian corporate ecosystem.
The presence of India’s new corporate legal elite is likely to have a similarly mixed effect on the country’s political economy. As we indicated at the outset, there is an important debate in the literature about whether corporate lawyers in emerging economies are likely to see themselves primarily as “agents of globalization,” whose primary interest is to advance the free-market principles of the old Washington Consensus, or whether they will be more loyal to the model of the developmental state that countries such as India, China, and Brazil have used to transform their economies following the global shift of the 1990s. The empirical studies in this volume contain evidence for both sides of this argument.
Given the role that the state has played in supporting the development of India’s corporate ecosystem, it is perhaps not surprising that the lawyers who have benefited from this assistance feel a greater loyalty to the state and its goals than the “agents of globalization” argument would seem to suggest. Thus, as Gupta (Chapter 8), Zaveri (Chapter 9), and Wilkins and Khanna (Chapter 4) document, corporate lawyers often provide free legal services to India’s legislative and administrative bureaucracy as part of their commitment to pro bono or law reform activity. Similarly, in the area of international trade and antidumping remedies, Wu (Chapter 21) describes how several of the lawyers who have been instrumental in India’s success in this area were motivated to do so—at least in part—because they believed helping the government create such a regime was “the right thing to do.” Moreover, they continued to hold free seminars to educate government officials long after they themselves had transitioned from public service to private practice, where they often represent foreign clients whose interests are opposed to those of the government. As both Wu (Chapter 21) and Papa and Sarkar (Chapter 22) emphasize, this process has created valuable “feedback loops” between Indian and global practitioners that have helped India develop legal capacity in the trade area even when Indian law firms successfully represented foreign interests against the government.
Needless to say, not all corporate actors are loyal to the government or to its policies. Indeed, given the history of the “License Raj” that proceeded India’s global shift in 1991, many corporations and their lawyers undoubtedly remain deeply skeptical of the government’s interest in protecting, or ability to protect, corporate interests. For example, as Papa and Sarkar (Chapter 22) document, many Indian companies showed little interest in the government’s attempt to create a regime that would protect a company’s outbound investments, particularly in countries even less developed in India.
Moreover, the efforts by corporate lawyers on behalf of the state documented in this volume have also undoubtedly helped to advance the overall interests of the new corporate elite. The fact that law firm partners and general counsel have increased their influence in Delhi has obvious advantages for both these lawyers and the powerful corporate interests that they represent. The fact that these actions are often taken outside of the formal legislative or administrative process—and out of the public view—only accentuates these effects. The example, recounted by Galanter and Robinson (Chapter 14), of companies retaining top Grand Advocates in order to conflict them out of representing the other side underscores how the influence of corporate money in India can have the same kind of corrosive effect on the development of legal doctrine that many argue it is having in the United States.
The fact that law firm partners and general counsel have increased their influence in Delhi has obvious advantages for both these lawyers and the powerful corporate interests that they represent.
As Gupta, Khanna, and Wilkins (Chapter 2) note in the volume’s overview, however, even if they are driven primarily by self-interest, India’s corporate lawyers have an important stake in fostering a legal system inside the country that at least has the patina of the rule of law. As the authors document, prior to liberalization there was very little need for the kind of complex drafting, analytical, and negotiating skills possessed by corporate lawyers. Economic matters were settled by either regulatory fiat or naked influence pedaling—or both. It was only when India moved to a more or less open economy with a more or less transparent legal structure that India’s corporate ecosystem began to blossom. It is therefore not surprising, as Zaveri (Chapter 9) documents, that the outgrowth of the “lobbying” efforts by India’s corporate lawyers has tended to produce greater legalization of the Indian economy, whether in the context of greater liberalization or the imposition of new restrictions on foreign entry.
Only time will tell whether this greater legalization actually benefits the Indian economy—and a broad section of the Indian people—as much as it benefits India’s new corporate lawyers. We close by saying a few words about what we might expect in the coming years with respect to the development of India’s corporate legal ecosystem and its effect on the rest of Indian society, and on the global economy generally.
As the India volume went to press in early 2016, India was entering the third year of a new majority government led by Prime Minister Narendra Modi. As Gupta, Khanna, and Wilkins (Chapter 2) indicate in the overview, one of the Modi government’s announced priorities is to further liberalize the Indian legal sector by allowing greater entry of foreign law firms for carrying out arbitration in India. Although it remains uncertain whether any significant reforms will be implemented soon, the chapters in this volume provide some important clues to what a more liberalized legal regime might look like, both for India and for the global legal services market more broadly.
Several chapters underscore the potential disruption that the entry of foreign law firms might bring (also, see “Foreign Firms Prepare for Landing?”). Thus, A. Singh (Chapter 11) and R. Singh (Chapter 12) speculate that the entry of foreign law firms would significantly drive up the salaries for lawyers working in India’s newly expanded corporate ecosystem. Nanda, Wilkins, and Fong (Chapter 3) and Krishnan and Thomas (Chapter 6) argue that it would also put pressure on Indian law firms to adopt less “communal” (and more “professional”) systems of recruitment, promotion, and compensation. Wilkins and Khanna (Chapter 4) agree, noting (along with Galanter and Robinson, Chapter 14) that global law firms and clients might also put greater pressure on India’s Grand Advocates to improve the quality and the customer focus of their services. Global law firms might also put pressure on India’s National Law Schools to expand and improve their business law curricula (Gingerich and Robinson, Chapter 16) and to formalize their recruiting systems (Gingerich, Khanna, and Singh, Chapter 17).
As India’s public and private companies continue to increase in size and influence, it stands to reason that their “partners” in the corporate ecosystem will rise in importance as well.
Whether these and other consequences materialize depends in large part upon how many global law firms take advantage of India’s new openness and actually establish significant offices in the country. As Nanda, Wilkins, and Fong (Chapter 3) indicate, it is not clear how many will do so, particularly with respect to firms based in the United States that have a much larger domestic legal market than those that come from either the United Kingdom or Europe, particularly after the global financial crisis (Flood, Chapter 10). Moreover, as Varottil (Chapter 5) underscores, even if foreign law firms are able to take some of the business away from India’s corporate firms, these firms have an opportunity to ride the wave of globalization in the opposite direction and increase their business by following the growing number of Indian companies that are investing outside of India in much the same way that Anglo-American firms followed their clients into India and other emerging economies.
The effects of India’s continued liberalization, both of its legal profession and of its economy generally, on the global market for legal services are similarly uncertain. As Khanna (Chapter 13) notes, there has been considerable fear in recent years that the rise of LPO in India and other jurisdictions is going to produce a significant reduction in the employment of U.S. lawyers. But, as Khanna argues, by reducing the overall cost of legal services to Western clients, it is possible that LPOs and other similar “disruptive innovations” could end up increasing the demand for legal services in a way that creates employment opportunities for lawyers (or those with legal training) both in the United States and India. Similarly, as both Wu (Chapter 21) and Papa and Sarkar (Chapter 22) document, as Indian companies turn their attention to outbound investment, both public and private actors involved in international trade and investment may very well take a different view of India’s role in institutions of global governance such as the WTO and ICSID than what we have seen to date.
Although much of the future of India’s new corporate ecosystem and its influence both within and outside of India remains uncertain, what is clear is that the influence of India’s new corporate legal elite is likely to grow in the coming years. As the socio-legal scholar Robert Nelson documented almost three decades ago in the context of America’s corporate lawyers, large law firms and in-house legal departments serve as “partners with power” with major corporate interests. As India’s public and private companies—and the growing number of companies around the world that seek to serve the Indian market—continue to increase in size and influence, it stands to reason that their “partners” in the corporate ecosystem will rise in importance as well. While the empirical studies in this volume cannot predict with certainty where this influence will take India’s new corporate elite, they do provide a number of important indications about the terms and conditions under which this influence will be created, negotiated, and deployed.