Objective Criteria: Facilitating Dispute Resolution by Information About Going Rates of Justice

2009

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Section: B What Followsmentioning

confidence: 99%

In Search of Microjustice: Five Basic Elements of a Dispute System

2009

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“…Informing the parties about solutions reached in comparable situations helps them to assess the fairness of outcomes (Pillutla and Murnighan 2003;Husted and Folger 2004;Cialdini 2007). Market prices, rules of thumb used in practice, social norms, or case law can provide people with this information (Fisher, Ury et al 1991;Shell 2006;Barendrecht and Verdonschot 2008;Verdonschot 2009). These 'objective criteria' create a shadow of the law, a neutral image of a just world, that the parties can use as a point of reference for reaching agreement (Mnookin and Kornhauser 1978;Cooter, Marks et al 1982;Hacker 2008;Nisenbaum 2009;Ray 2009).…”

Section: A Market Analysismentioning

confidence: 99%

“…These 'objective criteria' create a shadow of the law, a neutral image of a just world, that the parties can use as a point of reference for reaching agreement (Mnookin and Kornhauser 1978;Cooter, Marks et al 1982;Hacker 2008;Nisenbaum 2009;Ray 2009). People in a dispute tend to ask for these criteria: what did others get in my situation (Hacker 2008 Unfortunately, objective criteria are not always available (Barendrecht and Verdonschot 2008;Yeazell 2008). Information about the going rates of justice is costly to produce (Barendrecht 2009), because it requires extensive knowledge about the ways disputes of a certain type have been settled by the disputants or decided by neutrals.…”

Section: A Market Analysismentioning

confidence: 99%

Growing Justice: Justice Policies and Transaction Costs

2009

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This paper reviews the literature on policies aiming to improve the rule of law and the operation of a legal system. It takes a bottom up perspective of clients seeking access to justice and uses transaction costs on the market for justice as a criterion to evaluate justice policies. Most justice is created through 'justice transactions,' including informal help from friends, legal advice, information about law, ADR services, other forms of informal justice, and adjudication. Such transactions are seriously hampered by three major transaction cost problems, however.Justice policies include codification, setting up courts and reforming them, financing of courts, legal aid, ADR, developing rules of procedure, and regulation of the legal profession. The transaction cost perspective explains why many traditional justice policies do a poor job to increase access to justice or to diminish the costs of civil justice. More promising justice policies enable justice to emerge bottom up, in the interactions between clients and providers of justice services (microjustice, legal empowerment). These policies focus on the information needs of disputants, low cost default procedures, choice for plaintiffs, accountability towards clients, gradual, needs-based formalization of legal relationships, and strengthening informal compliance mechanisms.1 Helpful comments on an earlier version were provided by

“…There is adequate academic literature about the thesis that common law systems are more likely to produce efficient norms than civil law, tending to conclude that both legal traditions will evolve towards a mixed system with courts and legislators as complementing producers of law (Djankov, La Porta et al 2003;Gennaioli and Shleifer 2007;Ponzetto and Fernandez 2008). The broader question of how norms are produced has been studied less intensively (Posner and Rasmusen 1999), and seldom through the lens of the demand for norms by clients and supply by private parties or government agents Hadfield and Talley 2006;Barendrecht and Verdonschot 2008).…”

Section: Analyzing the Market For Justicementioning

confidence: 99%

“…These objective criteria do not have to be binding legal norms. Information on how others actually settled distributive issues, or suggestions on how they might settle, are probably more effective than information on how they should settle (Barendrecht and Verdonschot 2008;Verdonschot 2009). Both types of information contribute to a shadow of the law, a neutral image of a just world, that makes it easier to settle differences (Mnookin and Kornhauser 1978;Cooter, Marks et al 1982;Hacker 2008;Nisenbaum 2009;Ray 2009).…”

Section: Basic Technologymentioning

confidence: 99%

Understanding the Market for Justice

2009

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If justice is so dearly needed, why does it not emerge spontaneously? Socio-legal research shows how people shop for justice. They approach friends, advisers, lawyers, mediators, suppliers of legal information, local authorities, community leaders, priests, imams, arbiters, or judges in order to obtain redress in situations of conflict. From the perspective of clients, law is probably not so much a system of procedures in which they face barriers to access, but a variety of options on a market for justice services. In this paper, five types of justice services are distinguished. Whether these services are affordable for clients and sustainable to supply, depends on the costs of production and on the transaction costs of making them available. Investigating the sources of transaction costs for each of these justice services improves our understanding of the legal system. This perspective explains why ADR has hardly succeeded in attracting clients, lawyer services are unlikely to become a commodity, norms for distributive issues are often lacking, and courts have trouble to orient themselves on the needs of their customers. It also indicates which type of policies governments and civil society can consider if they wish to improve access to justice.