The Cookie Cutter Syndrome: Legal Reform Assistance under Post-Communist Democratization Programs

Communism ended in most parts of Eastern Europe and the former Soviet Union over ten years ago. However, the legal and judicial systems in many of these nations seemingly defy reform efforts. What I call in this article the Cookie Cutter Syndrome describes the standard approach Western nations developed to assist legal reform in the former Communist world.\u27 Despite vastly different conditions in these countries, the model for judicial reform remains very similar, and is rooted in litigation and adversarial practices. The question of whether an adversarial-based approach is appropriate becomes even more acute as assistance efforts focus more on nations with less of a history of rule of law.\u27 For the purposes of this paper, the definition of rule of law is a system in which the laws are public knowledge, are clear in meaning, and apply equally to everyone. The Cookie Cutter Syndrome describes the framework under which most legal reform efforts are organized. The Cookie Cutter Syndrome is an approach that fails to look at the individual differences of the specific countries receiving rule of law development assistance. Instead, the Cookie Cutter approach is for aid providers to treat each nation as unformed dough, onto which the Cookie Cutter of a Western legal system is applied. Legal reform is one category of democratization work. Each legal reform program includes four basic components: re-writing laws; training programs for legal professionals; technological assistance and refurbishing courthouses; and institutional development.4 All of these components focus on developing and improving litigation-based dispute resolution systems. Yet corruption and chronic court inefficiency continue to plague the legal systems in many post-communist nations. Foreign assistance efforts are making little impact in many of these nations because these efforts fail to get to the fundamental reason or reasons that a particular society is not making lasting and meaningful legal reform. The fundamental challenge facing these programs is to provide assistance to change legal cultures so that people expect and demand that their systems of justice deliver more, and to then make those systems deliver. It is time to move beyond the Cookie Cutter approach to legal and judicial reform and instead provide individualized assistance programs in each nation so that these programs directly confront the more difficult and confounding questions of why particular nations are still failing to make progress towards rule of law. Thomas Carothers has called this the need to identify the core syndrome in examining the broader question of why democratization programs as a whole are not working in individual countries. The Cookie Cutter Syndrome tends to use Alternative Dispute Resolution ( ADR ) within specific categories of disputes. In the post-communist world the most common application of ADR has been in the area of commercial disputes. I propose that legal reform programs change their approach, integrating ADR fully into their programs. Various forms of ADR could usefully attack the core syndromes blocking reform in individual countries. Various forms of ADR can help effect change in legal cultures, and, within the context of legal development programs, could move post-communist legal cultures further on the road towards rule of law. This article begins with a brief background of ADR, democratization programs, and legal reform programs. Section Three describes the Cookie Cutter Syndrome and examines the assumptions that shape legal reform efforts and that impact if and how ADR is used. Section Four examines how legal and judicial reform programs could look more broadly at using various forms of ADR to more effectively change the legal cultures in post-communist societies. The article concludes that legal reform assistance needs to further individualize programs for the conditions in specific countries, and that assistance programs should more fully integrate ADR. I do not recommend that all forms of ADR are always applicable in all countries or in all legal reform programs. Instead, I recommend that ADR in its various forms should be an integral part of the analysis of how to approach legal and judicial reform

Plea Bargain Negotiations: Defining Competence Beyond Lafler and Frye

In the companion cases of Lafler v. Cooper and Missouri v. Frye the U.S. Supreme Court held that there is a right to effective assistance of counsel during plea bargaining. However, the Court defined effective assistance of counsel in only one narrow phase of plea bargaining: the client counseling phase. The Court said it would not look more broadly at the negotiation process itself as [b]argaining is, by its nature, defined to a substantial degree by personal style.” This statement indicates that the Court does not fully understanding developments in the field of negotiation over the last thirty years. Negotiation scholars and practitioners have moved far beyond defining bargaining simply by “personal style” and instead view negotiation as a skill that can be taught, analyzed, and that already has established basic standards for competency. Negotiation scholars recognize that there are a variety of phases in every negotiation which would include plea bargaining. For example, there is the preparation phase which can include the first client interview, investigating the case, gathering information, doing legal research, and preparing the client for either involvement in the negotiation, or for what the possible options are as outcomes from the negotiation. The next phase is the negotiation phase which can have multiple parts and may start and conclude on different days. Lawyers who fail to properly prepare for the negotiation may also fail to competently negotiate. The final stage of plea bargaining is counseling the client regarding whether to accept the offer. This is the one phase of plea bargaining that the Supreme Court has started to define. This article will offer clear lines and categories that the Court could use to define competency in each of the three stages of plea bargaining. This article concludes that the Court must look beyond the counseling phase and not shy away from defining what is competence in all three phases of plea bargaining. It is not only possible for the Court to define basic competency in the preparation and negotiation phases of plea bargaining, but it is also imperative that the Court do so to meaningfully protect defendants’ constitutional right to counsel in plea bargaining

An Overlooked Key to Reversing Mass Incarceration: Reforming the Law to Reduce Prosecutorial Power in Plea Bargaining

The need to “do something” about mass incarceration is now widely recognized. When President Obama announced plans to reform federal criminal legislation, he focused on the need to change how we handle non-violent drug offenders and parole violators. Previously, former Attorney General Eric Holder announced policies to make federal prosecutors “smart on crime.” These changes reflect, as President Obama noted, the increasing bipartisan consensus on the need for reform and the need to reduce our incarceration rates. However, proposals about what to reform, such as President Obama’s, tend to focus on some parts of criminal sentencing and on prosecutorial behavior as stand-alone issues. These reform suggestions do not consider the fact that ninety-four to ninety-seven percent of criminal cases are resolved through plea bargains and how the use of this process influences incarceration rates. Prosecutors hold extraordinary power in the criminal justice system. They not only decide what cases get filed, they also decide what charges and enhancements are added, and whether there will be a plea offer. The structure of our criminal justice system, at both the state and federal level, strengthens prosecutorial power and create a plea bargaining environment with extreme power imbalances. Prosecutors use this power to put pressure on defendants to accept plea deals, which contribute to the high incarceration rates in the United States. Therefore, any reform intended to make a meaningful reduction in incarceration rates should recognize the power that prosecutors hold and include reform aimed at changing this underlying structure. As is well documented, the United States has high incarceration rates and imprisons more people than any nation in the world. African American and Latino communities suffer even higher incarceration rates. Our incarceration rates increased dramatically in the 1980s and into the 1990s. Some commentators identify the “war on drugs” as a major contributor to increasing incarceration rates during this period. Others suggest that the increase is due to a number of factors including changes in criminal codes that increased potential penalties for crimes across the board, not only for drug crimes. One scholar, John F. Pfaff, concludes that the single biggest reason for increased incarceration rates since 1990 is not an increase in arrests, or harsher sentencing, or the drug war, but instead is an increase in the percentage of felony filings per arrest. Pfaff concludes that the reason there are more filings is because prosecutors are filing a higher percentage of cases and therefore prosecutors are the predominate reason for mass incarceration. This article will begin by briefly describing how plea bargaining works and the often coercive atmosphere of plea bargaining that contributes to mass incarceration. This article will then discuss Pfaff’s conclusions, based on his empirical studies, that prosecutors are the key reason for mass incarceration. Building on Pfaff’s conclusions on the key role prosecutors play in mass incarceration, this article will discuss how the current structure of both state and federal codes reinforce prosecutorial power, particularly in the plea bargaining process. This article will then discuss two proposals for legislative reform that could decrease the coercive atmosphere of plea bargaining. First, this article will recommend revising how crimes are defined, reducing the number of crimes that can be charged as both misdemeanors and felonies and reducing some felonies to misdemeanors. Second, this article will recommend reducing potential punishment ranges by eliminating mandatory minimums for most crimes and for enhancements. Legislative change alone will not reverse mass incarceration, but targeted legislative reform could help to change the overly coercive atmosphere of plea bargaining. This effort can help to change the prosecutorial culture that surrounds plea bargaining and contribute to reducing incarceration rates

The Flawed U.S. Approach to Rule of Law Development

The key flaw to the United States\u27 approach to rule of law development is routinely including the standard menu of rule of law development assistance as a part of the overall development effort without regard to whether the recipient country is at a developmental stage where it is able to absorb some or all of this type of aid. This article uses Afghanistan as a case study. Despite a decade of assistance, Afghanistan remains a fragile and conflict-affected country, thus raising concerns about the value of the aid given and whether rule of law development aid should continue to be a part of the standard aid package in similarly situated countries. This article also reports the results of a small-scale survey of rule of law development workers in Afghanistan who were universally critical of rule of law development efforts in Afghanistan. This article concludes that the experience in Afghanistan demonstrates the need to change how the United States approaches rule of law development assistance. The United States should no longer routinely include rule of law development assistance in developmental aid packages. Instead, the United States should analyze the current conditions in a particular country and determine whether that country is ready for rule of law development assistance. This analysis should consider economic, political, and social development, and whether the country is currently in armed conflict. Depending on the level of development, it might make better sense for limited rule of law assistance. In some countries, it might be better to provide no rule of law assistance and instead to focus on other development goals and advocate for rule of law development at a political level

The Cookie Cutter Syndrome: Legal Reform Assistance under Post-Communist Democratization Programs

Communism ended in most parts of Eastern Europe and the former Soviet Union over ten years ago. However, the legal and judicial systems in many of these nations seemingly defy reform efforts. What I call in this article the Cookie Cutter Syndrome describes the standard approach Western nations developed to assist legal reform in the former Communist world.\u27 Despite vastly different conditions in these countries, the model for judicial reform remains very similar, and is rooted in litigation and adversarial practices. The question of whether an adversarial-based approach is appropriate becomes even more acute as assistance efforts focus more on nations with less of a history of rule of law.\u27 For the purposes of this paper, the definition of rule of law is a system in which the laws are public knowledge, are clear in meaning, and apply equally to everyone. The Cookie Cutter Syndrome describes the framework under which most legal reform efforts are organized. The Cookie Cutter Syndrome is an approach that fails to look at the individual differences of the specific countries receiving rule of law development assistance. Instead, the Cookie Cutter approach is for aid providers to treat each nation as unformed dough, onto which the Cookie Cutter of a Western legal system is applied. Legal reform is one category of democratization work. Each legal reform program includes four basic components: re-writing laws; training programs for legal professionals; technological assistance and refurbishing courthouses; and institutional development.4 All of these components focus on developing and improving litigation-based dispute resolution systems. Yet corruption and chronic court inefficiency continue to plague the legal systems in many post-communist nations. Foreign assistance efforts are making little impact in many of these nations because these efforts fail to get to the fundamental reason or reasons that a particular society is not making lasting and meaningful legal reform. The fundamental challenge facing these programs is to provide assistance to change legal cultures so that people expect and demand that their systems of justice deliver more, and to then make those systems deliver. It is time to move beyond the Cookie Cutter approach to legal and judicial reform and instead provide individualized assistance programs in each nation so that these programs directly confront the more difficult and confounding questions of why particular nations are still failing to make progress towards rule of law. Thomas Carothers has called this the need to identify the core syndrome in examining the broader question of why democratization programs as a whole are not working in individual countries. The Cookie Cutter Syndrome tends to use Alternative Dispute Resolution ( ADR ) within specific categories of disputes. In the post-communist world the most common application of ADR has been in the area of commercial disputes. I propose that legal reform programs change their approach, integrating ADR fully into their programs. Various forms of ADR could usefully attack the core syndromes blocking reform in individual countries. Various forms of ADR can help effect change in legal cultures, and, within the context of legal development programs, could move post-communist legal cultures further on the road towards rule of law. This article begins with a brief background of ADR, democratization programs, and legal reform programs. Section Three describes the Cookie Cutter Syndrome and examines the assumptions that shape legal reform efforts and that impact if and how ADR is used. Section Four examines how legal and judicial reform programs could look more broadly at using various forms of ADR to more effectively change the legal cultures in post-communist societies. The article concludes that legal reform assistance needs to further individualize programs for the conditions in specific countries, and that assistance programs should more fully integrate ADR. I do not recommend that all forms of ADR are always applicable in all countries or in all legal reform programs. Instead, I recommend that ADR in its various forms should be an integral part of the analysis of how to approach legal and judicial reform

Women Labor Arbitrators: Women Members of the National Academy of Arbitrators Speak About the Barriers of Entry into the Field

Labor arbitration imposes some of the highest barriers of entry in any field of alternative dispute resolution. Parties picking an arbitrator in a labor dispute typically know and trust the chosen arbitrator. Arbitrators usually have some prior experience in labor organizations or management before assuming the role of a neutral. This reality makes the field an insiders club. A successful labor arbitrator not only has these strong personal and professional connections to the parties, but also experience, knowledge, and impartiality. This Article explores the barriers that women, in particular, face in entering this profession

The U.S. Supreme Court\u27s Failure to Fix Plea Bargaining: The Impact of Lafler and Frye

In the 2012 companion cases of Lafler v. Cooper and Missouri v. Frye, the United States Supreme Court held that there is a right to effective assistance of counsel during plea bargaining, even when a defendant later loses at trial. Legal commentators suggested the cases were the single greatest revolution in the criminal justice process since Gideon v. Wainwright, that the cases will have a significant effect, \u27 and that they were the term\u27s decisions with the greatest everyday impact on the criminal justice system. But, will things really change for defendants in the wake of Lafler and Frye? Is it realistic to expect these two decisions to mark the beginning of serious or fundamental changes in plea bargaining? This Article will explain why these cases are unlikely to create meaningful change in how plea bargaining works because they focus on one narrow issue in the context of plea bargaining: single instances of bad lawyering. These cases do not address the larger systemic issues that create serious concerns for defendants in plea bargaining. This Article concludes that Lafler and Frye will have a limited impact because they fail to address these larger issues. Section I of this Article discusses the basic legal framework for plea bargaining in the United States, arguing that the Supreme Court has not touched basic issues that have serious implications for fairness to defendants in plea bargaining. Section II discusses the Lafler and Frye decisions and the criticism that they will fail to bring far-reaching change due to the Court\u27s limited focus on competent assistance of counsel. Section III examines the Indigent Defense Structures and Prosecutorial Power Structures left untouched by Lafler and Frye, which continue to create serious problems for defendants caught in the criminal justice system. Section IV explores the reasons for plea bargaining in the criminal justice system to understand why it may be so difficult for the Court to address larger, structural problems. Section V analyzes plea bargaining as a form of negotiation. This section considers the negotiation environment, and explains why defendants experience problems in plea bargaining due to its often highly adversarial nature, the serious power imbalances, the problem of innocent defendants pleading guilty, and the trial penalty. As this section discusses, plea bargaining is an informal dispute resolution process that can, at best, reflect the larger system within which it operates) Finally, Section VI concludes that Lafler and Frye are unlikely to lead to meaningful change in the Indigent Defense Structures or Prosecutorial Power Structures, but will possibly make some limited changes within the Legal Framework Structures due to their focus on competent assistance of counsel issues. Although Lafler and Frye may help bring some definition to the most extreme bad conduct of lawyers, these cases, and the cases that are most likely to reach the Court in their wake, are not positioned to make systemic changes in the key areas of Indigent Defense Structures and Prosecutorial Power Structures. Instead, they will continue to focus on plea bargaining in the context of individualized cases, but not address the larger structural problems

Making a Deal in Criminal Law

Professor Alkon describes her experiences using plea bargaining exercises in her first year, first semester, criminal law class

Negotiating Police Reform

In the summer of 2020, after the murder of George Floyd, the national conversation around police reform intensified and was part of a conversation with students at Texas A&M University School of Law. Students wanted more discussion and teaching about police, police misconduct, police reform, and defunding the police. Following those discussions, I created a simulation on local level police reform that, as of this writing, I have used twice in my negotiation class. Simulations are helpful teaching tools in a variety of settings, including law schools. Simulations can be particularly useful to help students discuss difficult topics in different ways by putting students in roles that demand that they go beyond their own views and that they put themselves in the shoes of others. I wanted an exercise that would help students to discuss police reform, police funding, and the issues of race that are wrapped up in these topics in a different way. In this short essay, I will explain the simulation, how I have used it in class, how it can be used to stimulate discussion around police reform, and some of the lessons I have learned in terms of how to conduct and organize this simulation