Joseph McDonough nurtures acceptance of rule of law
When Boston attorney Joseph B. McDonough ran through the basics
of electronic contract law at the Sultan Qaboos University Law
College in Oman in 2009, his fourth-year law students gave him
quizzical looks. "I was really teaching my students contracts for
the first time," he says. "I realized that they didn't have the
foundation that [Western] students have in contracts."
That knowledge gap is something that McDonough, who has 25 years
of teaching experience, is bridging, not only in Oman, but
throughout his career. His experience in international law has led
to his appointment as a partner in the Abu Dhabi office of Holland
& Knight LLP. The firm is expanding that office, which opened
four years ago, due to the region's rapid growth in energy,
construction, transportation, finance and international
arbitration. The Abu Dhabi office currently has 10 employees - half
of them from the U.S. and half from the Middle East.
He has lived in the Middle East for the past few years. He has
recently been selected to coordinate judicial reform and education
programs for the supreme courts of Oman, Bahrain, Nepal and Yemen,
all of which have large Muslim populations. "After preaching and
advocating for three years, the opportunity with Holland &
Knight will allow me to practice what I preach," he says.
In his new post, he will work with younger attorneys from the
region, many of whom have attended Western law schools. He will be
charged with bringing them from the status of younger associates,
arranging mentors for them, and getting them to work as a team,
using critical thinking skills.
Commerce without borders
The adoption of uniform commercial standards, while necessary to
make the country more attractive to business investment and
development, is a delicate dance of diplomacy - the choreography of
which McDonough is familiar.
Over three decades, Oman's economic departments and its Ministry
of Legal Affairs have been codifying its commercial law to conform
more closely to global commerce standards, but the country's legal
educational system hadn't kept up. When McDonough joined the SQU
faculty in 2009 as the first Westerner to serve as an adjunct law
professor in commercial law, no faculty member had experience in
practicing or teaching electronic commerce, and the country's
judiciary was concerned that they would be asked to replace Shariah
law, derived from the Quran and which tends to be vague in
commercial areas, with Western law.
SQU had been an exclusively Shariah law program until 2004, when
it began a commercial track reflecting global standards. Upon his
arrival, McDonough constructed a course patterned on the Electronic
Transactions Law, passed in Oman in 2008, collaborating with Dr.
Hussain Said Al Ghafri, of the Oman Information Technology
Authority, and utilizing course materials from the U.S. Commerce
Department's Commercial Law Development Program. James Filpi, now
senior counsel with the Commercial Law Development Program (CLDP)
in the Office of the General Counsel of the U.S. Department of
Commerce, is a colleague of McDonough's, and formerly worked for
Goodwin Procter in its Washington, D.C. office.
"It was a great subject, because commerce knows no borders,"
Books on the ground
McDonough developed an interest in foreign countries early on.
Recreational travel was part of his family life, dating from the
time he was too young to accompany his older siblings. A childhood
injury that sidelined him for a year turned him into an avid
reader, and high on his list was anything about travel. In addition
to the three years he has so far spent in the Middle East, he has
also worked in China and several Eastern European countries, under
the auspices of the American Bar Association and the U.S. State
Department of Commerce.
He is the former executive director of the Massachusetts Judges
Conference, where he initiated its international outreach program.
It has involved more than 700 judges and legal professionals in 14
developing countries. He developed and traveled on U.S. State
Department programs in Russia six times, primarily regarding IP
rights protection, advocacy and training.
As a visiting fellow with the McCormack Graduate School of Policy
Studies Center for Democracy and Development, he worked on program
development for the 1998 Rule of Law delegation from the Supreme
People's Court of the People's Republic of China, organized and
participated in the State Department-sponsored Moot Court/Judicial
Exchange program in Beijing and Western China, and coordinated
judicial education and consultancy projects in six former communist
Central European countries.
"I took a much stronger interest in the Middle East after 9-11, as
I felt strongly that the U.S. needed a strong civilian presence
teaching and consulting on [the rule of law]," he says. "Books on
the ground, not just boots on the ground, so I explored
opportunities in the [Middle East - North Africa] region."
Socrates and a laptop
A series of ABA studies, begun in Oman in 2004 and funded by the
U.S. State Department and USAID, examined possibilities for
improving legal education in that country. At the time, students
were graduating from law schools with broad theoretical education
but little training in how to help clients.
At the behest of the State Department, improving legal education
has become a policy objective, and the ABA has responded in Oman
and many other countries. "It was a seismic shift to transition
from Mosque-based religious law studies to a legal system that
could bring Oman into the global marketplace, and its young
students to learn new methods of thinking and lawyering," McDonough
In 2006-7, California Superior Court Judge Ernest Borunda did an
ascertainment and review with local Omani legal academics and
drafted recommendations. Concurrently, and completed in 2008, SQU's
university chancellor retained a team of consultants from the
United States and Canada to review the law program and make
recommendations, McDonough reports.
In 2008, the dean and the associate dean of the university told
him that his own assessment, which recommended more practical and
experiential legal education, dovetailed with the findings of the
other two sets of studies. At the time, students were graduating
from law schools with broad theoretical education but little
training in how to help clients, and postgraduate education "was
uneven, to say the least," he says.
The leadership at SQU wanted to adopt the case method and teach by
example. This was McDonough's forte. In a 2008 workshop he ran for
the law school faculty, he recommended interactive teaching
techniques, such as the Socratic and case methods, to encourage
He brought his laptop to class and displayed web pages for Amazon,
Travelocity and eBay on the classroom big screen. Students analyzed
common e-commerce problems, such as a botched online hotel
reservation in which a minor keyed in the data and accidentally
double-booked a hotel room. "It was a consumer case everyone could
relate to," he says.
Students got to discuss the problem and to find the right place in
the statute to address it. They would come to class with many
solutions. McDonough graded on their ability to find all the issues
and reason through the answers - the "on the other hand" method,
which led one student to tell him he had too many hands.
In 2010, McDonough was given three months to develop a curriculum
design for a new law school. The institution had to be accepted by
the Ministry of Higher Education, it had to use best practices, and
utilize U.S. law schools as models. Sohar University Law School
started admitting last year. Its five-year program builds up
English and research skills in the first year, followed by four
years of an undergraduate law program. "I made a lot of friends. I
learned a lot, too," he says. "It was really a two-way street."
Fitchburg District Court Judge Elliott Zide accompanied
McDonough to Oman when the latter served as project director for
ABA Rule of Law Initiative for the Middle East and North Africa,
prior to landing the professorship at SQU. Zide says McDonough has
built a network not only of lawyers and judges, but of young
people, and built an infrastructure of volunteer organizations,
which were able to advocate for particular issues.
"Joe had a tremendous influence on their understanding of the
American legal system and how it supports democratic values," Zide
says. "Every person I met, including the ambassador and people at
the embassy, had very high regard for Joe's ability to accomplish
the mission set by the State Department when it funds rule of law
initiatives in countries like Oman. People like him and respect
him. He's intuitive in knowing how not to overreach. ... He doesn't
put people off or challenge their existing ideas, except to
challenge them to think in different ways."
"I've worked in other countries, and I did understand that you had
to do your homework and understand the differences," McDonough
says. "It's about respecting people. If you go in with a Lord Jim
attitude, you are destined to fail."
The U.S. approach to the level of details of electronic commerce
may be more advanced than Shariah law, but it's not necessarily
superior, just different, and the differences aren't as wide as
originally presumed. The key to bridging the two cultures is to
understand how different cultures value things, he says.
Family comes first, and Islam's holy day is Friday, rather than
Sunday. When a Westerner turns down a Sunday appointment in order
to attend church, or demurs to spend time with family, "they
completely understand, they respect you for valuing your family and
religion, and things can move at a different pace. Being able to
understand and be patient about their process is part of that
respect," McDonough says.
He developed a network of contacts including some students, NGO
workers, teachers, judges and sometimes, taxi drivers. "This is
what I would do while working in U.S. political campaigns when I
was younger. Some professionals in the field like polls and
statistical research. I like people and to hear their stories, and
to learn what they believe in and why." Sitting down with friends
over tea "has given me more insight than I could ever get reading a
book or doing research."
Rule of law
"Oman is a great opportunity because it's small. It has a very
homogeneous society," says Zide. "It's very nationalistic. The
primary value there is to be an Omani, then to be a Muslim. And to
be a judge in Oman, you have to be both."
Omani judges take the bench at a relatively young age, holding the
equivalent of a bachelor of law degree. (For advanced degrees, they
must leave the country). "Up until 40 years ago, they had no formal
[legal] education at all in anything commercial," McDonough says,
"and then they found themselves on the bench, presented with the
need to understand commerce and big contract work. That was not
part of their educational experience, but most are very sincere and
bright and they desire to learn."
The sultan of Oman, commercial leaders and investors had long
called for judges to adopt the new globalized standards. Judges and
older attorneys chose their profession based on their interest in
Shariah, not specific categories of law, and judges sometimes
didn't follow the reform statutes. Instead, they would rule in
favor of the party they felt was more moral. Some expressed concern
that they would have to abandon Shariah law and use Western
Religious and political leaders pushed back, stating that the
standards had been vetted by Shariah experts and it was not the
proper function of a judge to ignore statutes in favor of
tradition, McDonough says. "To me, this went to the very heart of
the rule of law."
To help the transition, McDonough and his team developed
mini-bench books and checklists, and brought U.S. judges such as
Zide and Associate Justice Sydney Hanlon, who now serves on the
Massachusetts Appeals Court, to advise on their
Hanlon recalls a training visit in December 2010. "The issue of
judge training is the same across cultural lines," she says. "What
do you do if you're teaching people something they don't want to
hear? Training is different if it's an update on a law everybody
wants, or if you are introducing people to a whole new way of doing
While McDonough has a respect for cultural differences, Zide says,
he doesn't flinch from asking direct questions, such as: When are
we going to see more women judges in Oman? "It took Joe all three
years I was there, just to be able to push that very direct
question," says Zide.
At first, no one wanted to respond. It was a breakthrough when
someone said "soon." Zide comments, "I've been around long enough
to know that 'soon' can be an hour, next year or whenever Allah
deems appropriate. Then you can get into a discussion of why there
are not more women judges." He says later, "Joe's smart enough to
know to engage in this in a way that doesn't offend."