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Perception, Performance, and Politics
Recent Approaches to the Qualitative Comparison of Civil Justice Systems
Dr. Christoph Kern, LL.M. (Harvard)
Outline
I. Introduction
II. Difficulties in Measuring and Comparing Judicial Quality
III. Recent Surveys and the Role of Politics
1. The so-called “Lex Mundi Study” on Procedural Formalism
2. The 2008 Business Survey Conducted by Clifford Chance and the University of
Oxford’s Institute of European and Comparative Law
IV. Conclusion
I. Introduction
• Cross-country comparisons of civil justice systems– Independent surveys focusing on judicial quality (or one
aspect of quality) alone• E.g., Transparency International, Corruption Perception Index;
European Commission for the Efficiency of Justice, European Legal Systems
– General country rankings• E.g., EBRD & World Bank, World Business Environment
Survey; PRS Group, International Country Risk Guide; BERI, Operation Risk Index
– Variable in econometric research• E.g., Djankov et al., Courts (“Lex Mundi Study”)
II. Measuring and Comparing Judicial Quality
Performance (objective data)
Perception (subjective data)
Results
Process
II. Measuring and Comparing Judicial Quality
Performance (objective data)
Perception (subjective data)
ResultsDifficulties:
- Suitable proxies
- External data collected according to divergent definitions
- External factors (legal system, culture) affect significance
Process
II. Measuring and Comparing Judicial Quality
Performance (objective data)
Perception (subjective data)
ResultsDifficulties:
- Suitable proxies
- External data collected according to divergent definitions
- External factors (legal system, culture) affect significance
Difficulties:
- General problems of subjective data
- Abstract nature of the subject “judicial quality”
- Externalities (culture, ideology, media coverage)
Process
II. Measuring and Comparing Judicial Quality
Performance (objective data)
Perception (subjective data)
Results - Legal correctness and accuracy
- Justice and fairness
- “True” resolution of disputes
Process
II. Measuring and Comparing Judicial Quality
Performance (objective data)
Perception (subjective data)
Results
Process - Duration
- Costs
- Procedural fairness
- Legitimacy
II. Measuring and Comparing Judicial Quality
Performance (objective data)
Perception (subjective data)
Results Advantages:
- Avoids the difficulties of collecting objective data
- Framing of questions
- Law in action
Problems:
- Whose Perceptions?
- Number of respondents
- Clarity of questions
- Interpretation
Process
III. Recent Surveys and the Role of Politics
• Institutionalist Tradition– Institutional environment = important factor for a country’s
political and economic development (North 1990)
– Civil justice systems = part of a country’s institutional environment
– “The better the functioning of the civil justice system, the higher the economic prosperity”
• Uses for comparative data on judicial quality– Causation between judicial quality and growth
– Causation between institutional design and judicial quality
– Judicial quality as a control
III. Recent Surveys and the Role of Politics
1. The Lex Mundi Study on Procedural FormalismFinds a relationship between• Legal origin• Level of procedural formalism• Quality of the judicial system
Problems:• Only two model cases which are not meaningful
(Check collection and eviction of residential tenant)• Debatable concept of procedural formalism• Ambiguous questions• Questionable classification of legal origins
Hidden benchmarking?
III. Recent Surveys and the Role of Politics
1. The Lex Mundi Study on Procedural FormalismImportance of the study• Sponsored by the World Bank• May serve as basis for
– recommendations to developing countries
– specific requirements and conditions on how a borrowing country has to reform its legal system
• Possibly powerful impact on future development Much at stake for various parties Influence of politics on the results?
III. Recent Surveys and the Role of Politics
2. The 2008 Business SurveyAbout causation between
• the civil justice system• the choice of forum• the choice of law
Perception data from non experts Respondents may be influenced by
- law marketing
- their counsel
IV. Conclusion
“Cross-national studies … are just a beginning that point us in the right direction”
Dani Rodrik, Arvind Subramanian & Francesco Trebbi, Institutions Rule: The Primacy of Institutions over Geography and Integration in Economic Development, 9 J. Econ. Growth 131, 158 (2004).
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