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) Results Difficulties: -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) Results Difficulties: -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 Formalism Finds 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 Formalism Importance 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 Survey About 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).