Suits on the Ground: The ABA Rule of Law Initiative

Philanthropy and charity are engrained in American culture, and American generosity remains unparalleled in the world. According to the Bureau of Labor Statistics, nearly 63 million Americans volunteered their time performing community service in 2014. The median time they spent volunteering that year? Fifty hours.

Lawyers track closely with the rest of the country—a 2013 ABA report says lawyers averaged 56 hours of pro bono service. That, it says, reflects the legal profession’s “longstanding and ongoing commitment to pro bono legal services as a core value.” This core value, however, is something Elizabeth Anderson, director of the American Bar Association’s (ABA) Rule of Law Initiative (ROLI) notes is not particularly prevalent in other legal traditions around the world.

ROLI is the ABA’s flag-bearer of this and other values overseas, serving on the frontlines of a lawyer-driven diplomatic effort to strengthen the rule of law in developing and transitioning countries. Governed by a board of directors appointed by the ABA President, for the past 25 years, ROLI has been the ABA’s boots-on-the-ground worldwide. With 500 employees and staff operating in nearly fifty countries, ROLI is not a typical member-driven ABA section or division. Rather, ROLI’s staff, with the help of numerous volunteers, delivers service-based programs, trainings, and assistance ranging from constitution-drafting and law reform to access-to-justice initiatives, and to counter human trafficking and drug trafficking programs. ROLI even facilitates early warning communications networks in areas prone to large-scale ethnic violence or terrorism. In this way, ROLI continues the generations-old tradition of American lawyers serving overseas.

Values, Foreign Policy, and the Lawyers Who Make a Difference

President Jefferson, the lawyer who was the nation’s first secretary of state, believed that building a “just and solid republican government” at home would be the way the United States would serve as an example to the world. It would take another hundred years, however, for US foreign policy to truly begin to engage in a powerful way overseas when President Theodore Roosevelt, who studied law at Columbia before turning to politics, set the country on a course to become a major world power. Roosevelt believed increasing economic and political interdependence made it “incumbent on all civilized and orderly powers to insist on the proper policing of the world.”

President Woodrow Wilson, another lawyer, furthered this course. Wilson believed “foreign policy should reflect the same moral standards as personal ethics,” and that America’s security was tied directly to that of other nations. As World War II ended, President Harry Truman, who also studied law, applied Wilson’s approach in a way that would forever change the role of American lawyers in the world, by appointing Justice Robert Jackson to be the chief prosecutor of the International Military Tribunal in Nuremberg.

Taking leave from the Supreme Court, Jackson realized the world’s first tribunal to adjudicate cases of war crimes and crimes against humanity would not be perfect, but rightly noted its importance in history and international order. “That four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason,” he said.

Around that same time, a career soldier (not a lawyer!), Secretary of State George Marshall championed the plan that would bear his name. “Our policy is directed not against any country or doctrine,” he said, “but against hunger, poverty, desperation, and chaos.” Standing at the Berlin Wall forty years later, President Reagan hailed West Berliners’ “courage and determination . . . in contrast to a surrounding totalitarian presence that refuses to release human energies or aspirations.” And when the Wall came down two years later and Communism in Eastern Europe collapsed with it, some in the ABA recognized the value American lawyers could bring to the countries in transition that had not enjoyed freedom or the right to self-determination for decades. The Central European and Eurasian Law Institute, the first of what would become ROLI’s five regional councils, was born.

Rule of Law: What It Is and Why It Matters

The chair of ROLI’s board of directors, Judge Margaret McKeown, notes there is not a single definition of “rule of law” in the political science literature, and often the term does not translate easily into other languages. Justice Antonin Scalia offered a bedrock notion in his essay The Rule of Law as a Law of Rules, “Rudimentary justice requires that those subject to the law must have the means of knowing what it prescribes.” The World Justice Project calls it “a system of principles” that demand accountability under transparent and evenly applied laws that protect fundamental rights and are administered by neutral arbiters representative of the communities they serve.

Judge McKeown sums it up as both a system of laws and of putting them into play in a fair, non-arbitrary way. It’s a practical rather than academic definition, addressing more the issue of why the rule of law matters, versus what it precisely is. The rule of law is “a journey to justice,” she says, that features effective and transparent laws, fairly administered, and access to justice for the public.

Describing an “intersection of law and people,” Judge McKeown says there must be a stable and predictable base for how institutions will operate, which becomes a platform for good governance and effective policy implementation. Fair structure is required for the delivery of basic needs, she observes. For getting food and water where they’re needed or achieving justice for victims of domestic violence, “a nice set of law books doesn’t necessarily cut it.” Rules, enforcement, and compliance are all required to ensure an organized and effective response to a crisis, for example. Health pandemics illustrate this—the medicine itself is critical, but so are uncorrupted delivery mechanisms ensuring its availability to those in need.

Robust rule of law is vital not just to ending crises, but also to averting their rise. For instance, although there is a significant rule of law component in responding to refugee crises (e.g., application of immigration laws), the crises themselves often arise out of gaps in the rule of law. In this way, Elizabeth Anderson says, rule of law is also instrumental to effective responses to violent extremism and climate change. Rule of law, she says without a hint of hyperbole, “is the centerpiece of making the world a better place.”

So where does ROLI fit into the behemoth task of turning the rule of law from aspiration to reality? ROLI defines its mission as “supporting the development of just, equitable, and prosperous societies through the rule of law.” That’s not exactly narrowly tailored, and there are many organizations that do democracy and governance development work. What does it have to do with the ABA?

ROLI places experts in the field to help put international norms into operation. It is, Judge McKeown says, a “do-tank,” not just a think tank. As part of the ABA, ROLI is a not-for-profit organization that brings to bear the capabilities of the larger Association, including substantive expertise of ABA sections’ members and significant research capabilities. With its budget and staff, ROLI can leverage even more resources thanks to ABA volunteers, economies of scale, cross-pollination, and the use of international as well as US experts. Toward that end, ROLI programs benefited from an estimated $1.5 million worth of pro bono volunteer time last year.

ROLI’s projects range from capacity building (helping establish or strengthen bar associations and working with foreign judiciaries) to the quintessentially legal (helping draft constitutions), and program assistance ranging from helping Syrian refugees to navigating advocacy on the Internet. Training lawyers and judges is a staple of ROLI’s portfolio, as are operationally oriented programs to help counter corruption and to promote human rights. ROLI does not work on individual criminal cases or gather evidence for human rights prosecutions but instead works with authorities to improve access to justice and accountability.

For example, Peru is one of many Latin American countries to decide recently to shift its accusatory criminal justice paradigm to a system of oral advocacy. Modeled off work it previously did with Mexico, ROLI is working with Peruvian judges, defense lawyers, prosecutors, and other local stakeholders to implement this new system, which represents a dramatic adjustment for professionals who have spent their entire careers working within very different procedures, presumptions, and institutional roles. As the more transparent system matures—where the judge is a neutral decision-maker rather than an investigator—the roles of lawyers and judges, and their relationships with law enforcement and the state, evolve in the most basic ways. These changes also create a rare opportunity to bring together prosecutors, defense attorneys, and judges all in a single training.

ROLI also has developed assessment tools to measure the impact of its projects and, working with local partners and staff, it aims to transition operations to local control over time. Because of this commitment, during its twenty-five years, ROLI has built a worldwide network of development volunteers and professionals.

The Tradition of Service: What Young Lawyers Can Do

Judge McKeown started her work with ROLI as a project volunteer nearly twenty years ago. Her passion for the importance of international relations, specifically at the grassroots level is what drew her to ROLI, even as she donated her time, energy, and talents to such groups as the World Justice Project, the Girl Scouts of the USA, and the Volunteers of America.

After growing up in Casper, Wyoming, Judge McKeown found “magical intrigue” about international service after a Girl Scouts service project in Mexico during high school. ROLI’s work, she says, “speaks to something I care deeply about. I learn so much about people, governments, and cultures—and it makes me reflect on our own system. There are so many differences, but also numerous similarities.”

Over Judge McKeown’s years of involvement in ROLI, its size has increased dramatically—from its origins at CEELI with a few volunteers in a handful of countries to its present 500 employees and volunteers in fifty countries. The bulk of its programing also has changed, from technical legal assistance such as constitution drafting and government-to-government engagements concerning institutional structure to a wider range of programing targeting problems related to terrorism, human trafficking, AIDS, and human rights issues involving more on-the-ground direct legal services and capacity- and institution-building.

ROLI’s broad and dynamic charter carries many managerial challenges. But unlike a large and unwieldy bureaucracy, ROLI’s program-based model lets it tailor projects to specific needs and take advantage of its volunteers’ expertise.

Which raises the key question—exactly how does a young lawyer volunteer? ROLI typically requires its volunteers to have at least five years of experience to share with their foreign counterparts, which can make it challenging for some young lawyers to be competitive for the opportunities it offers. But relevant experience can come in a variety of forms depending on the needs of the particular project: regional, substantive, or administrative.

For some projects, like developing guides to certain areas of law or commentary on draft legislation, sometimes simply being five years out of law school will check the box for a volunteer who has the energy and dedication to the work. Others require a greater depth of relevant expertise, either from practicing in areas related to trade, corruption, or civil rights or through involvement in bar association work where one is developing expertise and profile. Former ABA Young Lawyers Division Chair Andrew Schpak, for example, traveled on a ROLI trip to Tunisia to share his expertise on bar leadership with young lawyers there.

Language skills, experience overseas, and some kind of international nexus in a volunteer’s work or studies are also valuable. French fluency is required for projects in Francophone Africa; work in Latin America likewise requires Spanish fluency. Military deployments, Peace Corps experience, and having studied abroad can be helpful. And for those with expertise and interest in specific regions of the world, ROLI’s regional councils may be a good place to start.

To find and recruit its volunteers, ROLI often reaches out to other ABA entities for recommendations to tap into their expertise. But they also have their own page on the ABA’s website where one can learn about pro bono opportunities. Volunteer opportunities are posted on a rolling basis for projects lasting anywhere from a week to six months. Some people have been known to take sabbaticals or leave their firms to participate.

Justice and Exceptionalism

In his classic work Democracy in America, Alexis de Tocqueville describes our culture’s unique appreciation for the benefits of donating one’s time in the service of others as “self-interest, rightly understood.” Otherwise selfless and altruistic work can make a lawyer a better-rounded professional by accepting challenges outside one’s comfort zone and developing new skills and appreciation for the circumstances of others. And let’s face it—many readers’ early dreams about practicing law involved some variation of wanting to “change the world.”

More unites us than divides us—it’s no coincidence, for example, that Hebrew and Arabic share the word for “charity.” But the challenges to realizing the full range of human potential remain vast. With the help of numerous volunteers and donors, ROLI plays one part—reinforcing the role of civil society. ROLI’s programs often operate at the systemic level, but their goals directly touch the lives of individuals. With a somber satisfaction, Judge McKeown says, “We’re changing lives, changing views one person at a time, one program at a time.”

It is in the most broken countries, the most difficult in which to operate, where ROLI’s programs can have the most impact and where even small changes can have a ripple effect that ultimately leads to improvements in human achievement and dignity. Perhaps lacking a concise definition of “rule of law” doesn’t matter—the ABA’s 2013 pro bono report doesn’t settle on a single definition of its key term, either. But the American domestic tradition of pro bono participation directly bears on ROLI’s international efforts, which in turn, have an effect around the world that may help inspire volunteerism in other countries, in addition to achieving the substantive goals of individual programs. Judge McKeown proudly says, “There is no other group of lawyers like ROLI. Lawyers working with ROLI invest in our global future.” Indeed, winning hearts and minds through our generosity is something at which Americans truly are exceptional.