Escola de Direito do Rio de Janeiro da Fundação Getulio Vargas (FGV DIREITO RIO)

Transcription

1 Fundação Getulio Vargas Escola de Direito do Rio de Janeiro da Fundação Getulio Vargas (FGV DIREITO RIO) Projeto: História Oral do CEPED Entrevistado: David Trubek Local: Rio de Janeiro/RJ by skype Entrevistadores: Gabriel Lacerda, Camilla Duarte e Tânia Rangel Transcrição: Ethan James Data da transcrição: Conferência Fidelidade: Raphael Figueiredo Data da Conferência: Entrevista: Tânia Rangel: Rio de Janeiro, 15 de Dezembro de Projeto História Oral do Ceped. Estão presentes professor Gabriel Lacerda, Camilla Duarte e Tânia Rangel. E a gente vai entrevistar o professor David Trubek que está nos Estados Unidos. A entrevista será realizada via skype. We can start. 1

2 Gabriel Lacerda: Okay, David I tend to follow strictly the guidelines that we both of us put together when we re at in Brasilia. Do you have them in front of you? Pardon. Tania Rangel: That s fine. Gabriel Lacerda: Okay. Do you have them in front of you? David Trubek: No. I don t, I don t. Gabriel Lacerda: But I do, I ll read it for you, for first question is David Trubek: No, I looked at them yesterday, so I remember pretty much what it is. Gabriel Lacerda: Okay. First question, formalities; identification of the person interviewed, name, age, short CV, participation of project and present position. David Trubek: Do I really need to do this? My name is David Trubek, I am 74 years old, and my participation in the project was that I was one of the people who originated the idea, put the packets together, raise the money and monitored the project for the U.S. government and Ford Foundation. Gabriel Lacerda: Okay. David Trubek: My current position is I am a professor of Emeritus at the University of Wisconsin. Gabriel Lacerda: Okay, I think that s alright. And, how did your connection with CEPED begin, would you go? 2

3 David Trubek: Well my connections with CEPED was that that I ve talked to a number of people in Brazil about the possibilities for reforming legal education and Gabriel Lacerda: In what capacity? What were you doing? David Trubek: I was -- yeah, okay I was Legal Advisor to the U.S. Foreign AID Mission USAID in the American Embassy in Rio from September 1964 until December In that context I did a lot of work with lawyers, Brazilian lawyers in public and private positions. And I began to feel that the legal education in Brazil lacked a number of features that would be important as the country modernized its economy. So, I started talking to legal educators and lawyers and others, who I had met in the course of my professional work for the embassy, which mostly involved negotiating loan agreements with government agencies, state owned enterprises and private companies. And so, there I talked to a number of people. I also talked to legal educators, and out of these conversations made contacts with Alberto Venancio, Marcílio Moreira and Caio Tácito, and we together, mostly me and Alberto and Caio developed a basic idea for CEPED and we convinced the U.S. government and the Ford Foundation to provide funding, which came through, I don t know exactly when the funding actually was approved probably sometime in early 66 would be my guess. Gabriel Lacerda: So, if I understood David Trubek: Sorry, go ahead Gabriel. 3

4 Gabriel Lacerda: If you, I understood you correctly. You said, I talk to a number of people, so in your daily work of arranging loan agreements from the U S. government USAID to Brazilian companies, you realized that there was deficiency and lawyers were not efficient. You realized that, talked with a number of people the names; are there any relevant names that you should mention of those -- before talking with Venancio, Caio and Lamy? Any other names that are relevant? David Trubek: Well, you know I just, it was very smart of Henry Steiner to want it go back and review files, but I don t have any files. So, I can t remember all the names. I know that I had talked to, I went to PUC and there was a professor there, named Piquet Carneiro. Gabriel Lacerda: Okay. David Trubek: And I know I spoke to him at some point, in terms of lawyers I talked to a lot of people. I think what s important to understand is I talked to lawyers who shared my views of the problems of legal education, and most of whom were not educatorsw, but were practicing lawyers or government officials like Marcílio Moreira who, although he had a law degree was basically functioning as an official of the BNDE at that time. So, there was a lawyer who worked for the embassy and I can t remember his name unfortunately. I know I spoke to, I know that I have a lot of contact with Roberto Paulo Cesars de Andrade from the Light, and Pinheiro Neto, the actual, the original Pinheiro Neto who I worked with to some degree, and a guy and a law professor in Sao PauloVicente Marotta Rangel. I think that these were some of the names in the early days that I talked to in various ways. 4

5 Gabriel Lacerda: So, but when you talk to Marcílio, Caio and Lamy who are those basically, the names, the more important names that you mentioned as instrumental for information of the CEPED. You had already conceived an idea of what, of a purpose of something to do or just discuss the ideas. How did the idea of organizing a program and organizing the course for corporate lawyers develope among those, from those early conversations? David Trubek: Let me say Gabriel, just to be precise. I don t think that I talked to Lamy in the beginning, he came in later. Gabriel Lacerda: Okay. David Trubek: The initial contact was first with Marcílio, who introduced me to Caio and Venancio, and it was sometime later, and I don t remember exactly when, that Lamy came into the story. Gabriel Lacerda: Okay, let s now we have been other, first contact was with Marcílio, who was the? David Trubek: I thought that this -- first I had the idea, which I got from just casual conversations. I went over to PUC I talked to people there, particularly Piquet Carneiro. Gabriel Lacerda: Is this one João Geraldo Carneiro? ---- David Trubek: No. I think it s his, he is younger, this guy was and that must be either his uncle or his father, I can t remember. Gabriel Lacerda: Okay, okay. 5

6 David Trubek: Because he was a very senior guy at that time Gabriel Lacerda: Could not be his uncle at all. David Trubek: João Geraldo, you know, this is 1960, João Geraldo must have been in law school than. He s about the same age as you are, isn t he? Gabriel Lacerda: Right, same age as me. Okay, then you have those contacts the first Germinal conversation was of Marcílio. David Trubek: The first time I really heard, we said; look the U.S. government and may be the Ford Foundations would be interested in putting some money into a legal with education reform project that first conversation was with Marcílio, yes. Gabriel Lacerda: Marcílio, you re already a personal friend of Marcílio, Marcílio told us that from Georgetownand so on. David Trubek: No, not from Georgetown. Marcílio got it wrong. I had met Marcílio very early in my stay in Brazil, because he was in charge of international affairs for the BNDE and we negotiated a loan to them and I got to know him then. Gabriel Lacerda: Yeah. David Trubek: That s you know maybe early 65 I would say. Sometime in early 65 is when I first met Marcílio and it was in the context of negotiating one of these big loans of local currency to the BNDE. Gabriel Lacerda: Okay, so you went and talked to Marcílio. Can you remember how did the conversation go a little bit? 6

7 David Trubek: No. I don t have any details, this was a long time ago. Gabriel Lacerda: But the basic idea was Marcílio, hi I have this idea may be I can get some money to help reform legal education in Brazil. That was the crux of it. David Trubek: I knew my job was to be a lawyer, my job was not to develop projects, the AID mission was full of people, you know it was a huge mission, it was the second largest program of U.S. Foreign Aid in the world at that time, only India was bigger than that. The program was something like $350 million dollars a year in So, you figure out what that means in today dollars at billions, and I was the lawyer. That my job was to do the legal work, we had a couple of Brazilian lawyers who worked with us, but I was the primary lawyer.. It was a full time Brazilian legal employee, who s now got a practice in Sao Paulo -- Átila Andrade. He worked for me for a while, and then I hired another lawyer whose first name was Gabriel, and I can t remember his last name. Gabriel Lacerda: Ferreira. David Trubek: It wasn t you. Gabriel Lacerda: Ferreira. David Trubek: Gabriel Ferreira. That s right. Gabriel Lacerda: Yeah. 7

8 David Trubek: And he s another person that I talked to about this project. You know him? Gabriel Lacerda: Yeah, I basically I know his daughters, one of whose is married to a very good, to Steve Wallerstein a good friend of mine. David Trubek: Oh, my god! I know Steve, and man, he got married with Gabriel Ferreira s daughter? Gabriel Lacerda: When he got married with his present wife, because of me he asked Joaquim for Gabriel s phone number and he gave mine instead of Gabriel Ferreira s phone. And then a young lady came in and clarified all situations, and eventually he got mad and still mad to this young lady, and that s how I remember my name say Gabriel Ferreira. But I am digressing it, so well we are getting to the point where this... [D1] Comentário: I cannot make any sense of this paragraph Gabriel needs to look at it. David Trubek: Okay, but he s very important, because he is one of the people who I talked to and that s the one that name I couldn t remember. So, Gabriel Ferreira, Pinheiro Neto came later. I don t know whether I met Roberto and got in know him exactly what the timing was, it was during the time we were putting it together, but probably after the project the idea begun to start, because I d worked with him on this big loan. And then thanks to Gabriel Ferreira, we rented a palace in Bingin (Petropolis) right next door to Roberto s family s house. And he and I traveled up and down between Petropolis and Rio everyday for months, while the family stayed up in that mountains. So I really got to know him very well and I learned a lot about Brazilian legal practice, 8

9 education, organization of legal offices, how they selected people. I learned a great deal from those conversations with Roberto Andrade, which helped me a lot as CEPED began to take shape, because when we start... Gabriel Lacerda: Do you think we should interview Roberto as well? David Trubek: Probably not; he, I just asked him a bunch of questions, he doesn t know. I don t think he knew much. I mean you can ask him. I d just saw him, is a very good friend of Marcílio and I d seen him, and he is a very good friend of Lamy, ask Lamy, because Roberto and Lamy share an office now. And Roberto had told me in August when I was there last; that, no when it was --yeah it was in August, which means he and Lamy meet at this office and all they do is come and talk to each other. Gabriel Lacerda: Yeah, I remember that. So well let s go back to the mainstream. You ve put together a lot of thinking as you realize that it was as difficult with Brazilian lawyers. And then, we re back to point where you discussed that with Lamy, say: hi, I visualize a possibility of getting funds to apply a reform of legal education in Brazil that was a basic... David Trubek: To Marcílio remember, Lamy comes in little much later. Gabriel Lacerda: Right. David Trubek: I talked to Marcílio first, then to Caio and Venancio, and I don t remember when Lamy came in, but not in early negotiation. 9

10 Gabriel Lacerda: Okay, but Marcílio was the one who introduced you to Caio and to Venancio. David Trubek: Yes. And then he got out of the story. So he really didn t do much more at that stage than introduce us, but he sort of lent his name to the projects, so that was important. And he also, no I guess it was Venancio who told me, he gave me this famous San Tiago Dantas article I translated into English. This is one of the first things I did, was I translated that article and circulated it around the embassy, the one you just republished. Gabriel Lacerda: Okay, Tânia Rangel: Professor, you said before that you realize that at that time that there is a kind of lack of I am not sure if it is a lack of experience or a lack of some kind of contents or abilities or whatever, that you missing in the Brazilian lawyers at that time. And can you tell us about this kind of lack you realize that the lawyer David Trubek: Okay, first question it wasn t, obviously it wasn t all Brazilian lawyers, and to be frank, the problem that I saw most seriously were the lawyers for the government ministries, not necessarily for government corporations, we worked with a lot of them, in those days a lot of the economy was controlled by government corporations. I remember we loaned money to the, what was then called, the company of the Vale do Rio Doce and so on and so forth. So the lawyers, so that it was the lawyers with the ministry of finance that lawyers with the Central Bank, some of the other lawyer, government lawyers that we dealt with -- and my impression was that 10

11 their view of their role was very much a kind of passive role where they were called upon to determine what the law was, they had a rather formalistic way of thinking about law. So, they didn t take into account law s purpose, the goals of the people they serve. They saw themselves just kind of gatekeepers, guarding some secret that they had accessed to, rather than thinking themselves as partners in a productive enterprise. I had been educated by legal educators in United States, and had worked for some of that sort of top American, instrumental superstar corporate lawyers when I worked for AID in Washington. So I had this idea that lawyers should be creative and productive actors in common cause with their employers or clients, rather than sort of neutral gatekeepers applying formalistic logic to determine the law --- that was my vision. And so I was taking a somewhat idealized version of the, of what I learned in law school, working on the federal court for one of the most famous of the legal realists Judge Clark, who was one of the leading figures in American legal realism. Then, I worked for William Rogers, who was a partner of an important Washington DC firm and subsequently ended up being Deputy Secretary of State and a buddy of Henry Kissinger. These people all reflected and my experience reflected a very different idea of lawyering than I sensed particularly among the ministry lawyers. So on the other hand, for example, I would meet people like Pinheiro Neto, and Andrade and Gabriel Ferreira who are more I would call them, operational, instrumental, and who had a grasp of the context, the policies, the economic environment and the goals. 11

12 Well the Brazilian lawyers particularly in the ministry, it s not just in the ministries, but particulaly in ministries didn t seem to have that approach, and so that was the idea. And of course I identified this with American Legal Education, I subsequently learned of course that many of these (positive) traits weren t widely shared, and they weren t the result of education in the law schools, they were the result of education on the job in a selected group of legal offices of which, you know, the Light was one of them in Rio. And so, they get it right off, because they, and I don t have to tell them anything they didn t know. They get it all, because the goals that we had were not very different from the goals that they had. And here we were dangling what appeared to be vast amounts of money, because when the conversation started and for reasons that I cannot remember, I decided to go and join with the Ford Foundation. I think there were some concerns, there were some things about the limits of what AID could pay for, and the AID bureaucracy that made it difficult and the kind of money. I know, now I know, now I remember. The AID money was not dollars it was Cruzeiros, because it came from the counterpart that we got when we made a dollar loan in order to neutralize the impact of the dollars. We got some -- we d get some Cruzeiros whenever we gave the Central Bank dollars. So that the money that I had was not dollars, therefore if we were going to pay for Americans, and if we were going to send people to United States, we had to have a dollar source and the Ford Foundation offered the dollar source. I am almost certain that is why we ended up going to the Ford Foundation. 12

13 Gabriel Lacerda: When you met Marcílio, you had already come to the Ford Foundation?. David Trubek: I don t think so. Again this is one of those issues when we talk to Peter we can sort this out. Gabriel Lacerda: Peter Hornbostel? David Trubek: No, Peter Bell. Gabriel Lacerda: Peter Bell, okay. David Trubek: Don t forget Peter Hornbostel came in very late after the whole thing was up and ready. Gabriel Lacerda: Sorry okay, but so when you talk to Marcílio, you have the -- may be the idea of thought, you know the Ford Foundation, but you ve not done so yet. Tânia Rangel: But you already have the US AID, the Cruzeiros? David Trubek: I had a pledge from the head of the AID mission that if I can put together a project that he d give me up to $1 million worth of Brazilian currency. Gabriel Lacerda: Okay. Then you met Marcílio, Marcílio introduced you to Venancio and to Caio. And any of those contexts the idea of asking for some money from the Ford Foundation also came out. David Trubek: Yeah, I just wish I can have the files, because I can t tell you that the order of all of this, but the answer is that just one of things we did I remember this very well. It was clear that not only would it bring in the dollars, but there was something about giving more 13

14 legitimacy, don t forget I was very young. I mean this is 1965 where we started these conversations. So, I was exactly 30 years old, and I was very junior in age, but relatively senior in my rank in the embassy. But I think that the people in the embassy thought that if the Ford Foundation signed on, it would give an additional sense of legitimacy. --- So that s a possible reason, because I remember this. I remember we organized a lunch at the home of the head of the AID mission Stuart Van Dyke] at which we presented this idea, and we brought the Ford Foundation people there, to get them interested and we succeeded Tania Rangel: Professor David sorry, your voice is failed sometimes it s, yeah it s speaking and we miss apart of it David Trubek: I changed, maybe I was talking too load Gabriel Lacerda: Yeah, the induction is, when the microphone gets, what you re saying then it whistles too many people, so just turn microphone to us, would you go again the last part, you explain? David Trubek: Alright, the last part was that people from AID wanted the Ford Foundation to be involved, probably for two reasons; first because it would bring in dollars and allow us to provide fellowships. We didn t have dollars from AID it was Cruzeiros. And secondly to add legitimacy to a project that was very controversial, no one had ever done a law reform project in AID in Latin America. I think CEPED was the first AID funded project, certainly one of the very first. 14

15 So I think the Ford Foundation added both money and legitimacy to the enterprise. And I do remember that eventually the AID director of the mission organized the lunch to launch the idea, and he brought the Ford Foundation people there to convince them to join in the project, by then we already had some general ideas of what we were trying to do. Gabriel Lacerda: Okay. And, how does the ideas as per your recollection goes general ideas growing to concrete doings like setting up a course involving Universidade do Estado da Guanabara, involving Getulio Vargas, the corporate, the course for corporate lawyers, how did it go? There was a general idea, and then to how did Tania Rangel: How did it take form? Gabriel Lacerda: Grow into the CEPED program as we know it? David Trubek: That the first thing was the decision to have -- for some reason it was important to have the formal participation of a university. I don t know why that was important, but I know it was. So, we did, so Caio created CEPED as a legal entity of the University of the State of Guanabara. But Caio was the one who advised us to have the event at FGV, to do it at FGV, because he felt that it was better to try this experiment separate from the university where there t would be resistance and perhaps, problems. So although technically CEPED was part of the State University of Guanabara, in fact it was an independent entity operating with this American money, and working in the Getulio Vargas foundation. I suspect that Caio had the support of Luiz Simões Lopes for this 15

16 enterprise and then the way Simões Lopes was important in helping to shape the idea. Caio was, I think this is right, Caio I think was the editor of the Revista de Direito Administrativo, which was published by FGV, is that correct? Gabriel Lacerda: It may be; I don t know for sure. Tania Rangel: Yes. Gabriel Lacerda: Tania says it is. David Trubek: Yeah, and he had connections with the public administration people at FGV. So he had some kind of contacts at FGV long before CEPED got started. So the decision to have it in FGV was a kind of recognition of the problems of doing something innovative in the Brazilian legal education context and a desire to try to do it outside Now why corporate lawyers, it wasn t, I guess corporate lawyers, because... Gabriel Lacerda: Why a course to corporate lawyers, a post graduate course? David Trubek: Wait a minute; was it called corporate law?, I m not sure you re right. What was the title of the course? Gabriel Lacerda: Direito de empresa, advogado... I think that I cannot for sure, but as far as I remember it, it was for corporate lawyers, a post graduation course for corporate lawyers. That s my memory, but I have not interviewed yet anyone. David Trubek: Alright ask I mean this is a problem if we are not going to be able to talk to Venancio But you can ask... 16

17 Gabriel Lacerda: We ll talk about it later. David Trubek: But we didn t think I will tell you this. We did not think of it as corporate lawyers, because we were trying to get lawyers from government ministries as well as from government corporations, and private entities. So, that it was a course on modern lawyering. I don t remember the name of it, but... Gabriel Lacerda: Maybe not corporate lawyers, but corporate law as applied. We ll have to check of that. David Trubek: It was about economic law; it wasn t about corporate law so much as economic law broadly defined, but corporate law was the major subject. But I think it s important to clarify this, because remember that in our minds the problems where more with the lawyers working in government agencies. Now those included a lot of corporations, right? [D2] Comentário: This is a terminological issue. In US parlance, corporate law is a specific body of law dealing with the organization of business units. It is a small part of what corporate lawyers work on. The point I was trying to make is that we wanted to train all layers who worked on important economic issues whether they were in the private or public sector, in government ministries or state owned enterprises. Gabriel Lacerda: Sure. David Trubek: And a lot agencies that had major impact on the economy. We were trying to develop a program that would ensure that the lawyers working on economic issues, whether they were in the government or the private sector, whether they were in government corporations or ministries. Gabriel Lacerda: Okay, and... David Trubek: And find an educational practice that we thought was necessary and with everybody, on the Brazilian side, shared and 17

18 understood, because -- I mean this is the important part of the story is that they had their ideas, and they knew what they were doing from the beginning. And although I m sure that the US had a role in all this, don t forget they went to the United States and visited some American Law Schools and they did all that, it s part of the planning. Tania Rangel: And they are? Gabriel Lacerda: No, wait a minute. We re skipping, we re going too fast now. Let me go back to the original conversation. Marcílio brought in Caio and Venâncio. Caio needed foreign money and what are we going to do? Then we go knock at Ford Foundation to get the money and the tree starts to grow. Then comes to decision, what shall we do?, how did Mario Henrique Simonsen got into the picture? David Trubek: Yeah, again what this raises is the need to get more documentary sources, so we can sort out the timing of all this. There was a trip to the United States, it would be very important for you to get a list of who went on that trip. Gabriel Lacerda: Yeah, we ll gradually get to that. We ve -- most of the people interviewed, we interviewed already some have gone and said that not, but were or basically put together Wald, Leoni, Lamy, Caio, clearly those who went. I don t know somebody from the economic sector, and we are getting to that. We don t know we have a list of names, but most relevant names we do. You can t remember how did Mario got into the picture. David Trubek: I don t know. I don t know when Mario got into the picture, but what I want to stress now and this is an important piece of 18 [D3] Comentário: I now know that the trip came before the actual grants were awarded. This can be seen in the Ford documents.

19 data that we need to clarify. Was that trip done after the grants were awarded or was that trip done as part to the planning? That s an important fact. And I don t, we had money to pay for people to take trip, short trips to the United States and often when the U.S. government was doing these projects, we would send people to the United States before we actually gave the big money, and I know... Gabriel Lacerda: Yeah, but there was some money involved at that point then otherwise the people would not be taken care of, somebody paid for this trip, and it was not a very cheap. David Trubek: No, no yes of course, but maybe we came up with $25,000 for a trip, which you couldn t in those days you can send seven or eight people to United States back for $25,000. In other words, what s important is, in order to understand the history of this if the people go to the United State before the project was fully designed and the big money allocated that s I think it s an important question in trying to understand the relative influence of these different sources for the ideas. And that again I don t know and I didn t go in this trip, so when this trip occurred I wasn t there Tania Rangel: And what was the motive for this trip, who is the one that realized that this kind of trip will be interesting or will be important for the project? And why they decided to take it? Do you participate? Did you participate in that kind of brainstorm? David Trubek: Of course, because I knew that American education was the model they should study and learn from that there were many 19

20 aspects to the way the American Law Schools work that filled the need that we had agreed on. We had already agreed on the problems in Brazil, it was laid out in San Thiago Dantas article. And it was clear to me that many of the things that the people who wanted to create CEPED were interested in were things that were done more or less in American Law Schools. So the idea was, go there and study the American Law School. Now look, I have confessed that there were something very ethnocentric about our ideas that you know only in America that people understand these things, but there is no question that the culture is different. And in a way Gabriel you are right, there is a culture of the corporate lawyer after all you lived with this or your, a lot of your professional career, the American corporate lawyer which has spread around the world and was really created in the US I mean just I do believe this started in the United States in the late 19 th century for a complicated set of reasons. There is a whole literature on this and American Law Schools were set up in ways that were very different in law school anywhere else in the world, because they started -- well they are just like the British. They started outside of the university and the legal profession started outside of the state, and in most of continental Europe legal education was always in the university and legal practice was tied very closely to the state. Gabriel Lacerda: Okay. David Trubek: So, American legal education was part of what isnow called a global corporate legal culture and CEPED was designed to transmit that culture. The point that we didn t understand was that it 20

21 was already present in rather robust ways in Brazil in a number of elite circles. We didn t understand, I didn t understand it, the Americans didn t understand this. So we thought we were telling Brazilians something they didn t know. So the idea of going to United States was to learn this wonderful thing, which turns out they already knew it, but you know they picked up something from this experience. And probably, probably the trip started to help consolidate a group feeling among the Brazilian, even if they learned nothing else they got time, a lot of time away from their daily chores and daily pressures to talk to each other. So I think that it when we go back and really study this, we will see that the trip was very important not necessarily because they learned something so fantastic and novel and that they never thought of it, when they were in the United States. But because the contact with another system and the fact that they were altogether, so in going to the US this experience helped create a cohort of people with more common understandings than they had preceding the trip. I think this, I will bet you any amount of money we could demonstrate that. Gabriel Lacerda: Sure, no doubt about it that David, just staying at watching a class in the American University in comparing to every experience everyone had that before, he is almost at the shock, and then put that the minds to work, another third tactical approach here if I may thought to refresh tour memory what point did Lamy mentioned very interest is that; focus on corporate law. Lamy put that very clearly that the corporate law is traditionally a law, more rely on custom from 21

22 that goes more naturally, in studying corporate law would facilitate and be simpler to demonstrate that law is just not something that comes from the top is imposed by the will of a government, but grows like trees. That s a natural phenomenon and it is easier to demonstrate that idea using a corporate law than criminal law for instance. Tânia Rangel: And also the idea that corporate law as law itself. It s always under construction, but it is here to show if the corporate, because you have many, you have the customs so strong as source of law that you usually don t have in orders (field). Gabriel Lacerda: Yeah, the idea of law as a social phenomenon in an interdisciplinary approach and is has a spontaneous element to it and its fabrication its brief it is clear more, is clearer in commercial law and in corporate law than any other branches of law; that was Lamy s thought. David Trubek: It also, it is another thing to realize, if we defined it a little bit more broadly to say, if economic law which includes corporate law, but also other areas this is a time of incredible change in Brazil. Gabriel Lacerda: Sure. David Trubek: All these newlawss were coming down right?, just look at the capital market legislation alone. So this was a time when now, a lot of these laws didn t take: the military and the economists passed laws that did not work and that was part of the origins of the idea was that, in a time of rapid change like this, you have to go back to basic principles and develop a kind of interdisciplinary understanding. If you re going to both create and also implement laws that were 22

23 designed to change economic behavior and that s where Mario Simonsen came in, exactly how he came in, and exactly when he came in, I don t know. But, the economists don t forget that the economists were writing the laws in those days. And they recognized that they needed to get the lawyers; that the lawyer is needed to come along on the project. So, I think that if we were able to interview Simões Lopes and Mario Simonsen, we would find, which we can t, we would find that they observed this from the point of view of the public administration and the effectiveness of the government effort to change the economy through passing a lot of laws. And if they saw that they couldn t do this without the lawyers and that therefore they wanted to support the idea of creating a different kind of lawyer. I think, we have to go back and again if we can only get some of these files, I am going to try to see what happen to my Yale files, I had all these files with Yale when I moved to Wisconsin I don t know what happened. I will try and get Henry is trying to get the Ford files, did you know that? [D4] Comentário: My own files were lost but some of the materials are in the Ford files. Gabriel Lacerda: I didn t. I have not yet interviewed Henry. He s scheduled for March, because he is coming to Brazil in March, and if he preferred David Trubek: Henry is going to be in New York on Friday, and he got in touch with the Ford Foundation to see if they could possibly let him come and see the files. Gabriel Lacerda: He was trying to do that in January. 23

24 David Trubek: See, I don t know if he succeeded, I just know that he sent a message to the Ford Foundation person, there is a women in Rio name Denise Dora. Tania Rangel: Yes. David Trubek: And he sent her a message asking if she could help. Although, the files are in New York, as she knows about CEPED, she knows all about CEPED, and he was going to talk to Peter Bell too so. We will see if he did, because I am not going to be in New York till February. I said to Henry; go see if you can find these files. Gabriel Lacerda: Okay. I didn t know that, that s great. David Trubek: That just happened Gabriel, the other day. Gabriel Lacerda: Okay. Let me go back then to our original guidelines here, because we are not going to find where you can get to it. The question and the way it s phrased in the language is yours is what in your opinion was a word that basic ideas of the program in connection with teaching methodology, in connection with the concept of law and in connection of the role of lawyer in society. I am not talking, we skip the details and how your idea developed into the corporate law program law post graduate program with other course. Now we ll get that, I don t not know exactly how it happened, it develop into a body and is there was there consistent thought about those three icons in this body, teaching make? David Trubek: I can only tell you right?, so I mean I can tell you what I thought. 24

25 Gabriel Lacerda: Okay, that s David Trubek: Okay, don t forget I did all this when I was 30 years old, right?, so that was almost 45 years ago. Gabriel Lacerda: Yeah and I was 26 at that time. David Trubek: There is a problem of memory, and there is all the things that happened since then and all the things I ve learned, some of them rather painfully. But, I could tell you what I thought. I had worked with I mean you have to understand Legal Realism. You have to understand the theories of law that were prevalent in and still are in the American Law Schools of my days and is that late 50s early 60s, law was seen as a tool to be used to achieve certain goals. And the goals were defined in terms of policies, and in order to be sure that the law achieved its purpose, you have to understand the policies and you have to understand how the law affected whatever was going on in the corporation or the economy or society or whatever. So you needed to have a vision that was interdisciplinary that is, it wasn t enough to know just, whatthe rules are because the rules were indeterminant. The rules had to be interpreted in light of the policies that lay behind them. That was the first idea about the nature of law. And we felt that Brazilian legal culture emphasized a kind of static formalistic conceptual approach to law rather than an instrumental policy oriented interdisciplinary approach to law. To some degree I think that the CEPED Brazilian group shared that idea, but to what extent I never knew. The second thing was what is the 25

26 role of the lawyer in society, the role of the lawyer in society is to be a part of a team this was the idea of teams rather than the individual experts guarding some kind of secret knowledge. The team would work together to shape the policy, shape the corporate governance and investment arrangements, whatever it was, and that the lawyer was supposed to be part of that team sharing the team s goals and seeking ways within the constraints of the law as they understood it. But the lawyer was also a problem solver. I think that the lawyers that probably would have come to mind in, for me most this is me, right?, not Caio Tácito, Lamy or anybody else, but me, was that the lawyer should think of himself or herself as a problem solver, and the law was one of the things that had to be dealt with as you solved problems, but not the law alone, but it was always the law and the politics and the economics in the business concerns in the whole thing and the lawyer was part of a team that was engaged in problem solving. I had worked for William Rogers, who was one of the great corporate lawyer, policy orineted superstars I guess, he was the top lawyer in Washington. Gabriel Lacerda: You are very clear to say that those were your ideas, but can t you tgive us some hint on to what extend do you think that those ideas were shared by the original team? David Trubek: I think that to some degree they were, but we never really had to get down to those details, because in working out the project you didn t have to -- well, here is what I think, one of the key parts of the course that I was always proud of and it wasn t our idea it 26

27 was their idea werethese problems, right. They created these hypothetical problems, you remember this. Gabriel Lacerda: Sure. David Trubek: And so this seemed to me to fit exactly with the way we thought it that if these were problems and the students had to study the problems and the materials weren t limited just as the law. There was a lot of information about economics and business and accounting and I don t know what. So I think that to the extent that reflected this vision I think that they shared that. Now you know to what extent, we read into what they were saying, and I think there was a lot of us, you know wishing that they were agreeing to with us and them doing what they wanted to do and Gabriel Lacerda: Yeah, get the gringo s money and let s do what we want; that was a phrase that I have heard many times in the discussion among of the Brazilians of the CEPED, Lamy is not very keen about that, but to put in your perception most of the ideas you brought into the project were either learned or accepted or shared by the Brazilian team. David Trubek: I don t remember any disagreement over basic ideas, none at all. Gabriel Lacerda: Okay, so the basic ideas were those that in your perception you expressed. There is a question here in the questionaire, which is very formal, but I would like a formal answer of everybody with, I know we are ready what the answer will, but I need to make it. Do you think the approach to legal education by CEPED column A, 27

28 drew primarily on ideas developed Brazilian participants; B were substantially drawn from the US experience C, where a blend of both traditions. David Trubek: Clearly C. Gabriel Lacerda: Everybody and that s not only your answer. But it s important to have this unanimity to clearly see that s exactly what Keith responded and anybody involved with the pressure would do, to what extent that the David Trubek: Just as a footnote: I think that I suspect that we will find that, the Brazilian input was much more important than the Americans understood at the time. Gabriel Lacerda: I am glad to hear it. Then the next question to what extent that the CEPED experience and the role of the U.S. in legal reform in Latin America become a matter of discussion in the U.S. legal culture? David Trubek: Well, it became very important. Tania Rangel: Why? David Trubek: Because it was a reaction in, well you have to look at the timing here, because hese basic experiences these American experiences were mostly in the late in the 60s and early 70s in Latin America that is U.S. project. Gartner s book which you I think you have Gabriel Lacerda: I just, I just got it. 28

29 David Trubek: Yeah, well it studies reforms in several countries. I think he probably got most of the projects that werei ongoing, there werea few that went on afterwards, but I think he s got the majority. The Ford Foundation was the primary funder. AID was probably not as important outside of Brazil. This is early 70 s. This is the height of the crisis of the late 60 s or a very beginning the 70 s was the height of the Vietnam war protests, which brought in along with them critics of all American overseas intervention of all kind. And there was a tendency to look for evidence that these projects were part of an imperialistic design. Gabriel Lacerda: So which included of course the over throwing of Goulart, and all the things that went through in Latin America that time the killing of Salvador Allende, the Latin attributes as a big battlefield up north intervened in average sector of Latin American life. David Trubek: Exactly, now you know the knowledge about the extent of U.S. involvement in the coup in Brazil that detailed knowledge didn t come out for years later and... Gabriel Lacerda: But that the speak, the speech was there already. The knowledge of any involvement can make much late, but there was a public opinion David Trubek: No, I know that, but I m trying to get the sense that this should have evolved over the 70 s as more and more information came out and, you know, look, believe it or not, I didn t know even though I was relatively senior guy. And I had no idea of the extended involvement of the U.S. in the coup until many, many years later no idea and even though I was involved in all sorts of things, hey kept that 29

30 information extremely close. It began to leak out in this late 70 s, but piece by piece and it was only -- it was sometime in the late 70s or early 80s before the information about the existence of naval task force, you know about the naval task force, right? Gabriel Lacerda: Sure, that was around. David Trubek: Yeah. Gabriel Lacerda: Remember I conspired at that, perhaps I ll be awarded. I was one of the conspirators. David Trubek: I m sure you were, because your uncle was a major player in this whole story. Gabriel Lacerda: Sure and my father in law too. David Trubek: But anyway. Gabriel Lacerda: anyway. David Trubek: Anyway, so, in American legal culture there had been this effort to create a field of law and development. That was built by largely by people like myself and Steiner who had gotten involved in this through projects likes CEPED and experiences like mine. In other words, it didn t come so much from within the university as much as from people who joined the university having had this field experience. Now Steiner of course had now been teaching for a long time, but there were lot of us -- and there was this effort to build a field, which was funded heavily by the Ford Foundation and the U.S. government which gave money to the American universities to work on this topic to train people, to educate people, to give fellowships. 30

31 When I went to Yale, in 66, we negotiated a grant from AID and we got it I think in 67 or early 68. To create a program called Law and Modernization and the same thing was going on at 3 or 4 other universities with money either from Ford or from U.S. government or both. So that there was this fledging field and so the experience of CEPED and other projects was fed into this debate and what happened was that this field got started just as the incredible reaction against American overseas involvement was going on in the universities driven primarily, initially by the protest that was growing about Vietnam but alson on all sorts of issues. And then if all the information kept coming out about, you know, the Brazil coup. Gabriel Lacerda: Okay. David Trubek: So, when Gardner wrote his book, the ground had been laid for this critique and Gardner s book was cited all over the place. So to this this day it is kind of a conventional site. The most important article of this kind of reaction I wrote, which is the article called Scholars In Self Estrangement, which you can read on my website which is listed on every one of m,y messages. And this article had a tremendous impact, it was published 74, I think. Gabriel Lacerda: Would you repeat the title David. Tania Rangel: It s called David Trubek: Yeah it s called Scholars In Self Estrangement. Gabriel Lacerda: Estrangement. David Trubek: And then it has estrangement, it s an alien word. 31

32 Gabriel Lacerda: Yeah. David Trubek: And it was written with Marc Galanter who had done the same kind of work, somewhat a same kind of work in India. And we said: look a lot of the ideas that we had in this field of law and development were naïve. We thought that the solution to all these problems was to export American legal culture. We didn t know what we were doing, bla, bla, bla and we have to separate the academic field from the foreign aid mission, which had basically called it into being, because we would become the tools of AID. So we wrote this article calling for a purification of the academic field separating itself from the sources of financing that had called it into being and, lo and behold, when the money stopped, the field died. Gabriel Lacerda: Yeah, I never read an article, but I really as soon I get home, it s in your site. Okay, so there was a lot of David Trubek: Its in Gardner s article, Gardner s book I mean. Gabriel Lacerda: Yeah and the role David Trubek: That CEPED, Gardner put CEPED in this, but there already wasgeneral discussion about projects like CEPED and so and so, by the end of the 70 s there was a strong anti-imperialist reaction against American exporting American legal culture in the American legal academy. Gabriel Lacerda: Okay just, 32

33 David Trubek: And that last stage was a long time, ago but the field sort of revived in the 90 s with the growth of the human rights movement and many other things and then f all these exports of laws. Gabriel Lacerda: Okay, we ve been sending troops to Asia and scholars to Latin America trying to dominate the world. That was basically a disguising connection that might be made and that s why it became a subject of that discussion in the U.S. legal culture.. David Trubek: Yeah. Gabriel Lacerda: When we sent Mr. Trubek to Brazil to discuss legal reform, it s a different angle, it s not the same way we send troops to Vietnam to fight the commies there and there were people were trying to equate that. Is that properly described? David Trubek: There were people who equated that, but the point is that there was a similar motive because what was, why was the United States spending something like $2 billion a year in 1966 in today s dollars in Brazil, because we were afraid that a communist will takeover Brazil. Gabriel Lacerda: Sure David Trubek: Otherwise we wouldn t have done anything. Gabriel Lacerda: That s the typical ColdWar thing. David Trubek: Then the idea was okay there was a social dimension because after all there was a liberal democrat Kennedy administration, libertaldemocrat, Ambassador Lincoln Gordon was a liberal democrat, this was the equivalant of European social democracy. We were 33

34 offering an alternative to communist whatever, and this included the capability to have more rapid economic growth and in order to have more economic growth you needed to have effective laws governing the economy and in order to have effective laws governing the economy you have to have lawyers who knew how to draft the laws, interpret the laws, implement the laws, so you can trace CEPED back to this, the American interest in CEPED, back to this idea that we have to help Latin America to find an alternative to communism that would lead to do satisfaction of basic needs and show that, that they didn t have to go in that direction. You know, from our point of view we were missionaries of liberalism. We were missionaries bringing a liberal and social democratic approach to Latin America provideing a humanistic alternative to communism. That was what we thought that we were doing. Gabriel Lacerda: Yeah, but not, this was the matter of discussion where those guys are really doing what they thought they are doing or they are just furthering the sway y of another imperialist country that spends billions of dollars and that s of U.S. it s part of the U.S. over-all political scenario, and that s why it became a matter of discussion. David Trubek: Yeah, I mean, it s a minor element, right?when you think about it, this whole involvement of Americans in reforming law and legal education in developing countries and 60 s and 70 s was a very small activity. Gabriel Lacerda: Yeah, but it was every important in the academic, in the legal 34

35 Tânia Rangel: Academic environment. Gabriel Lacerda: Legal academic environment is a major because it s their environment, is that where they were David Trubek: Yeah. Tânia Rangel: is it right to say that the legal system was involved at all, so. Gabriel Lacerda: Okay, now the next question here is that the CEPED experience in anywhere in anyway change your ideas about Brazil, Brazil legal education, law and U.S. consulted it what extend? David Trubek: Well that s a very big question. Gabriel Lacerda: Yeah sure, if you talk half an hour about that. David Trubek: I know, and the trouble is that I have written about 18 articles about this. All right, well, let s get to the short version. So the short version is yes. Gabriel Lacerda: Yeah, the short version is yes. And the next question is, do you know any of written text about the experience? Specify. What s your opinion of these texts? So if you have written or no, so specify that, the whole answer to the question will appear. David Trubek: Okay. Let s go, next to written experience. Okay, so there are two places where this very exclusively appears. The first Scholars in Self Estrangement, which you can read. And I think you ll find it very useful, and its very relevant. The other place is in an article of that I wrote, which is about something very different, and I don t 35