Fundamentals of Judicial Institutions Around the World: Myths and Lessons Nuno Garoupa UNIVERSITY OF ILLINOISUNIVERSITY OF ILLINOIS COLLEGE OF LAW Champaign, 2010

WHO IS THE BEST? Champaign, 2010

WHO IS THE BEST? Champaign, 2010

GERMANY Champaign, 2010

GERMANYFRANCE Champaign, 2010

GERMANYFRANCE BRAZIL Champaign, 2010

GERMANYFRANCE BRAZILMEXICO Champaign, 2010

Judges from civil law don’t speak English… that’s what’s going on! Champaign, 2010

UK Champaign, 2010

UKAUSTRALIA Champaign, 2010

UKAUSTRALIA CANADA Champaign, 2010

UKAUSTRALIA CANADAHONG-KONG Champaign, 2010

Judges from common law speak English… but they are outdated! Champaign, 2010

JAPAN Champaign, 2010

JAPAN THE PHILIPPINES Champaign, 2010

EVERYONE THINKS THEY HAVE THE BEST JUDGES AND THE BEST SUPREME COURT!  Civil law countries  Common law countries  Even if heavily influenced by the U.S. Champaign, 2010

HOW SHOULD WE COMPARE? WHAT DO WE WANT TO COMPARE? Champaign, 2010

HOW SHOULD WE COMPARE? WHAT DO WE WANT TO COMPARE? ==THEORY== ==EVIDENCE== Champaign, 2010

==EVIDENCE== Measures of judicial quality around the world! Champaign, 2010

World Bank Champaign, 2010

Doing Business Champaign, 2010

Closing a Business (I) Champaign, 2010

Closing a Business (II) Champaign, 2010

Closing a Business (III) Champaign, 2010

Closing a Business (IV) Champaign, 2010

Conclusions… Common law countries have great courts… … civil law countries have bad courts… … the French are the worst! Champaign, 2010

==THEORY== Civil Law is “Good” Common Law is “Good” Champaign, 2010

WHY? Champaign, 2010

Unclear why (1)Judge-made law is good and codes are bad. --how is this useful to distinguish US from France now? US statute law? French general principles of law? Champaign, 2010

Unclear why (1)Judge-made law is good and codes are bad. --how is this useful to distinguish US from France now? US statute law? French general principles of law? (2) Pro-market orientation of U.S. judges and pro-state interventionism of French judges. --really? Are we in the 19 th century or in the 21 st century? Is the quality of a legal system determined by events from 200 years ago? Champaign, 2010

Reading is a problem… Champaign, 2010

Unclear why (3) What is the meaning of common law in this context? --US? UK? Australia? Canada? Israel? Champaign, 2010

Unclear why (3) What is the meaning of common law in this context? --US? UK? Australia? Canada? Israel? (4) The myth of career judiciary --Higher courts in Europe are also largely appointed by “recognition mechanisms”, although much less politicized. --Juries… Champaign, 2010

Unclear why (5) Common law judges are more independent… --Personal? Collective? Administrative? Procedural? Champaign, 2010

Unclear why (5) Common law judges are more independent… --Personal? Collective? Administrative? Procedural? (6) The legal culture… --Courts in the US are “deductive” whereas courts in Europe are “axiomatic”… Champaign, 2010

There is no theory! There won’t be any theory! It makes little sense to say a particular legal family is “better”! Champaign, 2010

There is a more general problem… what about the evidence? What are we measuring with the current data? Champaign, 2010

The Evidence is no Evidence What is quality of the judiciary? We cannot measure quality if we do not define quality! Champaign, 2010

The Evidence is no Evidence Current measurements are based on a set of “cherry-picked” legal variables to promote a particular point of view popularized by international organizations such as the World Bank and the IMF! Champaign, 2010

The Evidence is no Evidence There are oranges and apples. Some people like orange. Others like apples. Let’s ask those people who like oranges what color should the “best” fruit have… “Surprisingly” they say orange Let’s tell those people who like apples they should have oranges because that’s the “best” fruit! Champaign, 2010

Policy Consequences ( ) Legal reforms based on these “measurements” have largely failed! They have not improved GDP per capita! They have not improved FDI! They might have reduced institutional quality! Champaign, 2010

Conclusions Everyone thinks they have the best judges! It is unclear what we mean by “best”. It is even harder to measure “best”. Policymaking based on alleged measurements has been quite detrimental! Champaign, 2010