Fundamentals of Judicial Institutions Around the World:

Myths and Lessons

Nuno Garoupa

UNIVERSITY OF ILLINOIS COLLEGE OF LAW

Champaign, 2010

WHO IS THE BEST?

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WHO IS THE BEST?

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GERMANY

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GERMANY FRANCE

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GERMANY FRANCE BRAZIL

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GERMANY FRANCE BRAZIL MEXICO

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Judges from civil law don’t speak English… that’s what’s

going on!

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UK

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UK AUSTRALIA

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UK AUSTRALIA CANADA

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UK AUSTRALIA CANADA HONG-KONG

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Judges from common law speak English… but they are outdated!

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JAPAN

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JAPAN THE PHILIPPINES

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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.

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HOW SHOULD WE COMPARE?

WHAT DO WE WANT TO COMPARE?

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HOW SHOULD WE COMPARE?

WHAT DO WE WANT TO COMPARE?

==THEORY====EVIDENCE==

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==EVIDENCE==

Measures of judicial quality around the world!

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World Bank

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Doing Business

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Closing a Business (I)

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Closing a Business (II)

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Closing a Business (III)

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Closing a Business (IV)

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Conclusions…

Common law countries have great courts…

… civil law countries have bad courts…

… the French are the worst!

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==THEORY==

Civil Law is “Good”

Common Law is “Good”

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WHY?

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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?

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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 19th century or in the 21st century? Is the quality of a legal system determined by events from 200 years ago?

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Reading is a problem…

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Unclear why

(3) What is the meaning of common law in this context?

--US? UK? Australia? Canada? Israel?

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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…

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Unclear why

(5) Common law judges are more independent…

--Personal? Collective? Administrative? Procedural?

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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”…

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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?

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The Evidence is no Evidence

What is quality of the judiciary?

We cannot measure quality if we do not define quality!

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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!

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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(1998-2010)

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!

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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!

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