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Fundamentals of Judicial Institutions Around the World:
Myths and Lessons
Nuno Garoupa
UNIVERSITY OF ILLINOIS COLLEGE OF LAW
Champaign, 2010
WHO IS THE BEST?
Champaign, 2010
WHO IS THE BEST?
Champaign, 2010
GERMANY
Champaign, 2010
GERMANY FRANCE
Champaign, 2010
GERMANY FRANCE BRAZIL
Champaign, 2010
GERMANY FRANCE BRAZIL MEXICO
Champaign, 2010
Judges from civil law don’t speak English… that’s what’s
going on!
Champaign, 2010
UK
Champaign, 2010
UK AUSTRALIA
Champaign, 2010
UK AUSTRALIA CANADA
Champaign, 2010
UK AUSTRALIA CANADA HONG-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Judges from common law speak English… but they are outdated!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)
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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 19th century or in the 21st 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(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!
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
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