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).