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Carothers, Thomas "The Rule of Law Revival" Foreign Affairs 77(2):95-106 (1998)

This article discusses the recent wave of efforts to promote "rule of law" in developing and transition countries. Carothers argues that there are three basic categories of rule of law reform. The first type concentrates on efforts to reform or rewrite the laws themselves. The second type emphasizes reform in the basic legal institutions, especially the judiciary and the bar. The third type aims at increasing government compliance with the law and true judicial independence. Carothers claims that most rule of law aid to date has focused on the first two types of reform, while the third – the most difficult and important – has received much less attention. Thus current rule of law programs, while generally beneficial, are not likely to engender fundamental change. Carothers stresses that rule of law programs cannot solve the political, economic, and legal problems of developing and transition countries, and promoting the rule of law, while a worthy goal, should not be seen as a panacea.

Methodology: Qualitative description and analysis

Subject Keywords: Rule of law; individual rights; post-socialist transition; economic development; democracy; economic reform; legal reform; outside assistance; USAID; World Bank; public support for reform; judicial independence; democracy; law drafting; judicial reform; judicial efficiency/court delay

Law Keywords: Criminal law; commercial law; administrative law

Country/Region: Latin America; Eastern Europe; Russia; Asia; Middle East; Africa

Di Federico, Guiseppe "Prosecutorial Independence and the Democratic Requirement of Accountability in Italy" British Journal of Criminology 38(3):371-387

This article deals with the role of public prosecutors, concentrating on the difficulty of balancing two different values: the need to preserve prosecutorial independence from the political process, and the need to subject prosecutorial discretion to the principle of democratic accountability. Di Federico argues that these two values are in tension with one another, and that in recent years many countries – particularly in Western Europe – have been moving in the direction of greater prosecutorial independence. Di Federico argues that the Italian experience demonstrates the dangers of excessive independence at the expense of democratic accountability, claiming that this grants prosecutors too much power in setting criminal policy, with negative consequences for both individual rights and crime control.

Methodology: Qualitative description and analysis

Subject Keywords: Public prosecutors; crime control; individual rights; corruption; separation of powers

Law Keywords: Criminal law; constitutional law

Country/Region: Italy; Western Europe

Flanders, Steven. "Case management: Failure in America? Success in England and Wales?" Civil Justice Quarterly 17:308-19 (July 1998)

This article cautions against misinterpreting the U.S. experience with case management. Some U.K. reformers have taken the results of the RAND Institute for Civil Justice conclusions to mean that judicial case management in the United States failed to reduce costs. The author argues, however, that the methodology of the RAND study, and the research strategy identified by the Civil Justice Reform Act of 1990, were both flawed. The RAND project was useful in furnishing an enormous database of U.S. court statistics, but its conclusions did not demonstrate a causal relationship between case management and increased cost.

Methodology: Qualitative description and analysis; critical review

Subject Keywords: Judicial efficiency/court delay; civil procedure; legal reform; court performance; costs of the legal system; judicial reform; litigation

Law Keywords: Civil litigation

Country/Region: United Kingdom; United States

Hensler, Deborah "Puzzling Over ADR," Rand Institute for Civil Justice’s Facts and Trends Summer 1997, republished in Dispute Resolution Magazine 3(4): 8-10 (1997)

This short piece summarizes the findings of research on the use of alternative dispute resolution (ADR) after the 1990 Civil Justice Reform Act in the US. The data shows that ADR is not widely used, and where it has been used it has not had noticeable success in reducing time-to-disposition or costs. However, Hensler cautions against an overly negative conclusion, pointing out that ADR may still have positive effects that don’t show up in this data. First, ADR may increase the chances of resolving disputes before a case is ever filed. Second, ADR may have benefits for specific kinds of cases, even if those benefits don’t show up in aggregate effects. Third, ADR may increase quality of judgements, even if it doesn’t improve efficiency. Fourth, the type of ADR implemented thus far may be inadequate, and may not reflect the type of ADR likely to have a real transformative effect on dispute settlement. Hensler concludes that more research is still needed to assess the real benefits and limitations of ADR.

Methodology: Qualitative description and analysis

Subject Keywords: Alternative dispute resolution; arbitration; mediation; judicial efficiency/court delay; costs of the legal system

Law Keywords: Civil litigation

Country/Region: United States

Kritzer, Herbert M. "Adjudication to Settlement: Shading in the Gray" Judicature 7(3):161-165 (1986)

In this article, Kritzer notes that, despite the low percentage of cases that actually go to trial, judges play an important adjudication role in a much larger percentage of cases. Using data on civil litigation in the United States, Kritzer claims that judges are actively involved in the processing of civil cases, even those that never come to trial. He notes further that this does not take into account the indirect influence of anticipated judicial action in cases where such action was never taken. He notes that the enthusiasm for alternative dispute resolution is based in part on the low number of cases that actually go to trial, but his data suggest that the settlement of many if not most cases rests on third party adjudication. Also, he suggests that clear and predictable adjudication on the part of judges helps facilitate the disposition of cases. The general lesson is that a simple adjudication/settlement dichotomy misses a fundamental aspect of the way the system works.

Methodology: Quantitative analysis; qualitative description and analysis

Subject Keywords: Out-of-court settlement; litigation; judicial efficiency/court delay; judicial decision-making; alternative dispute resolution

Law Keywords: Civil litigation

Country/Region: United States

Kritzer, Herbert M. "Rethinking Barriers to Legal Practice" Judicature 81(3):100-103 (1997)

In this article, Kritzer argues that, for many types of cases, nonlawyers can provide legal services as well as or better than lawyers, and the barriers to entry to the practice of law need to be reconsidered. He points out that the common claim that nonlawyers are more prone to errors is supported only by anecdotal evidence; systematic studies do not show a significantly greater incidence of nonlawyer error. Furthermore, nonlawyer advocates could be regulated by the same mechanisms used to control lawyers – institutional controls, liability controls, and disciplinary controls. He notes, however, that while allowing some types of nonlawyer practice may make sense, it is likely to encounter stiff opposition from the legal community.

Methodology: Qualitative description and analysis

Subject Keywords: Legal profession; nonlawyer advocates; regulation of legal services; legal malpractice; legal services

Law Keywords: Administrative law; civil litigation

Country/Region: United States

Kritzer, Herbert M. "Propensity to Sue in England and the United States of America: Blaming and Claiming in Tort Cases" Journal of Law and Society 18(4):400-427 (1991)

This article presents a comparative analysis of one aspect of the propensity to sue: the behavior of English and Americans in cases involving seeking compensation for injury. The article first surveys the literature on the topic, most of which has found a significantly higher claiming rate among Americans than among the English. Kritzer examines this "claiming gap" in more detail, and also asserts that there is a "blaming gap": Americans are more likely to externalize fault and/or causation for their injury. Furthermore, he argues, in England externalization appears to be a necessary condition for claiming, while in the US it is often a sufficient condition. Kritzer argues that while some of the difference in behavior may be attributed to the incentives and disincentives of the court system (cost rules, etc.) comparative analysis shows that such factors can only explain a small part of the blaming and claiming gaps. He argues that the key difference has to do with expectations of compensation. These expectations are related to the compensation system, and also to the cultural system. He concludes by contending that there needs to be more work on the cultural and symbolic sources of litigation behavior.

Methodology: Comparative analysis; literature review; attitude surveys

Subject Keywords: Litigation; legal culture; insurance

Law Keywords: Tort law

Country/Region: United States; United Kingdom

Kritzer, Herbert andJohn Voelker "Familiarity Breeds Respect: How Wisconsin Citizens View Their Courts" Judicature 82(2):58-64 (1998)

This article reports the results of a 1995 survey of user attitudes toward courts in Wisconsin. The survey found that people who had recent experience with the courts were extremely positive in their evaluations, and that these individuals also had a much more positive evaluation of the courts than the general public. The authors argue that these results suggest that the general public dissatisfaction with court performance does not seem to reflect the experiences of those who have actually used the court system, and that greater familiarity with the courts actually improves people’s opinion of them, contrary to the findings of earlier studies. The authors note that these results suggest the need for more research on the factors affecting public opinion of state courts.

Methodology: Attitude surveys

Subject Keywords: Public opinion of legal system; judicial efficiency/court delay

Country/Region: United States

Pomeranz, William E. "Judicial Review and the Russian Constitutional Court: The Chechen Case" Review of Central and East European Law 23(1):9-48 (1997)

This article discusses the Russian Constitutional Court’s 1995 decision in a case involving a legislative legal challenge to the constitutionality of President Yeltsin’s use of military force to restore Russian control over Chechnya. The case was important for the status of the court, which had just been reestablished after a suspension of more than a year. The court ruled, in an 11-8 decision, that the executive’s actions in Chechnya were legal, and that alleged human rights violations, while subject to legal jurisdiction, would have to be handled by criminal courts, not the Constitutional Court. The dissenters and many observers charged that this decision granted excessive power to the executive at the expense of the already weak legislature. However, Pomeranz points out that the court may have had no real choice, given its institutional weakness. He argues that, although the court did confer excessive power on the executive, it also reasserted the exclusive right of the judiciary to review executive and legislative decisions. It also demonstrated that the court could examine controversial cases without becoming directly involved in politics, as the previous Russian Constitutional Court had done.

Methodology: Qualitative description and analysis

Subject Keywords: Judicial review; judicial independence; separation of powers; judicial decision-making; individual rights; military operations; state of emergency; political question doctrine; rule of law; secession

Law Keywords: Constitutional law

Country/Region: Russia

Schwartz, Herman "Surprising Success: The New Eastern European Constitutional Courts" Chapter 12 in Schedler, Andreas, Larry Diamond, and Mark F. Plattner, eds. The Self-Restraining State: Power and Accountability in New Democracies (Boulder: Lynne Rienner Publishers, 1999) pp. 195-214

This chapter discusses the new constitutional courts in the formerly socialist countries of Eastern Europe. Schwarts notes that, overall, these institutions have performed surprisingly well, frequently overturning government action and protecting individual rights, and they generally are highly respected by the public. Schwartz first notes differences between the US Supreme Court – which is the highest appellate court in a hierarchy, and decides individual cases – and the Eastern European constitutional tribunals, which are designed to deal strictly with constitutional questions, and are separate from the ordinary court system. He briefly outlines the histories of some of the major Eastern European constitutional courts over the last ten years. While some of these courts have either not challenged or have lost struggles with the executive branch, in several countries these courts have made a significant contribution, even in very hostile environments. The reasons for the variation, Schwarts argues, are not clear, but seem to depend on the larger political context. Also, the degree to which the court can appear to decide cases on legal rather than political principles helps its legitimacy. In conclusion, he notes that the ultimate success or failure of constitutionalism, and democracy more generally, is a public committed to these ideals.

Methodology: Qualitative description and analysis; comparative analysis

Subject Keywords: Judicial review; judicial independence; federalism; individual rights; separation of powers; equality/social justice; constitutionalism; rule of law; post-socialist transition; democracy; economic reform

Law Keywords: Constitutional law; administrative law

Country/Region: Eastern Europe; Poland; Hungary; Russia; Bulgaria; Slovakia

Tyler, Tom R. "Citizen Discontent with Legal Procedures: A Social Science Perspective on Civil Procedure Reform" American Journal of Comparative Law 45(4):871-904 (1997)

This article reviews social science research on U.S. public dissatisfaction with the court system, asking the question: "What do people want from the courts?" The author argues that low public satisfaction matters because it discourages voluntary compliance, leads to greater acceptance of vigilantism, encourages legislatures to grant less discretion to the judiciary, and causes disputants to feel little "ownership" of case outcomes. Turning to research of alternative dispute resolution, Tyler argues that informal procedures are generally very satisfactory for disputants, particularly mediation, although they do not save money for the courts. Tyler contends that for most people, the process by which a case is handled is more important to overall satisfaction than either the fairness of outcomes or whether they win; in fact, the sense of procedural fairness is even more significant than the cost or time involved in dispute resolution. Perceptions of procedural fairness stem from the degree of voice/participation that disputants have in the process; the trustworthiness of lawyers and judges (even more so than professional distance); interpersonal respect; and perceived neutrality. These findings imply that ordinary people have a different perspective into the legal system than professionals, and that the long-term social bond with the legal system matters more to people than particular outcomes of cases. On a final note, Tyler argues that people who identify with the society represented by the legal system are more likely to accept decisions on the grounds of procedural fairness, regardless of whether they have won.

Methodology: Literature review; attitude surveys; qualitative description and analysis; quantitative analysis

Subject Keywords: Public opinion of the legal system; civil procedural; legal reform; alternative dispute resolution; access to justice; legal personnel; legal profession; mediation

Law Keywords: Civil litigation

Country/Region: United States

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