Vol. 14 No. 6 (June 2004), pp.477-480

Courts, Justice and Efficiency: A Socio-Legal Study of Economic Rationality in Adjudication.  By Héctor Fix-Fierro.  Oxford and Portland, Oregon: Hart Publishing Ltd., 2004.  268 pp. Cloth  £45.00 / $90.00.  ISBN: 1-84113-382-5

Reviewed by Robert A. McGuire, Professor of Economics, The University of Akron.  Email: rmcguire@uakron.edu

In Courts, Justice and Efficiency, Héctor Fix-Fierro sets out to examine how well courts and judicial systems around the world perform their legal functions.  The author’s interests are in determining whether courts and judicial systems operate “efficiently,” examining the relevant criteria for measuring and assessing court “efficiency,” and analyzing the proper relationship between “efficiency” and “justice” in various judicial proceedings.  This is a wide-ranging study of the functions, operation, and structure of courts and judicial systems around the world from the perspective of a legal scholar; the book eventuated from the author’s doctoral dissertation in law at the University of Bremen, Germany, in July 1998.  The courts and judicial systems discussed in the book are not limited to any specific courts, legal proceedings, levels, or countries, nor are they limited to a specific time period.  The author discusses the operation and structure of civil and criminal courts and other legal proceedings of original and appellate jurisdiction at various levels in numerous countries in Europe and Latin America, as well as the operation and structure of civil and criminal courts and judicial proceedings in the United States at all levels (municipal, state, and federal courts).  Although the book does include more recent analysis, the proceedings that are discussed took place predominately in the 1960s, 1970s, 1980s, or the early 1990s.

On the first page of the front matter, Fix-Fierro indicates there are two primary ideas that emerge from his study: (1) the concept of economic rationality (by which he means “efficiency”) “has penetrated the legal and judicial systems at all levels and dimensions,” and (2) “economic rationality is not the prevalent value in legal decision-making, as it is subject to all kinds of constraints, local conditions and concrete negotiations with other values and interests” (p.i).  The first idea is clearly a valid observation; in fact, it is the foundation of the entire law and economics literature.  With respect to the second idea, although it also represents a valid observation, it is not, however, a particularly new or unique idea.

In this relatively short book, as the subtitle, A Socio-Legal Study of Economic Rationality in Adjudication, indicates, the author takes a sociological rather than an economic approach to explaining economic efficiency in judicial and legal proceedings  While acknowledging the importance of the law and economics approach with its emphasis on efficiency, the author posits an alternative approach that focuses on sociological organization theory to explain the operation and structure of courts and judicial systems. [*478]

In the first chapter—“Introduction: Why Court Efficiency?”—the author addresses the issue of whether courts around the world are in a state of crisis, dealing with backlogs and inefficiencies believed to have been caused mostly by litigation explosion.  Fix-Fierro maintains that, even though there has not been true litigation explosion relative to historical levels, a substantial growth in caseloads worldwide has taken place that has led to “perceptions of overload, inefficiency, delay and the like [that] are relative and subjective” from the point of view of the various actors involved in judicial and legal proceedings and, as a result, a “crisis in the administration of justice” exists and can be attributed to the actions and interests of the actors involved as well as to “other significant social developments, such as the new social prominence of the courts” (pp.10-13).  According to the author, an important issue to study, therefore, is the efficiency of courts in their administration of justice.

The second chapter—“Litigation, Justice, and Efficiency”—presents a review of both the socio-legal and the law and economics literature, including an examination of the relationship between the sociology of law and economic analysis of law.  By “efficiency,” the author means the economic standard of the costs of providing justice, where costs are measured in terms of both the private expenditures (borne by the parties to the dispute) as well as any external price associated with providing a particular level of justice (borne by members of society who are not parties to the dispute).  By “justice,” the author, noting the similarity between the economic concept of “equity” and one meaning of “justice” in terms of equality (“treat like cases alike”), equates “justice” with this equal treatment meaning (p.71).  The author maintains that, while the law and economics approach to explaining judicial and legal proceedings is important and pervasive, a sociological approach is equally important because, as noted, economic rationality (efficiency) is not the prevalent value in legal decisions.  With respect to the legal system, “justice is the prevalent value” (p.74).  In a world of scarce resources, efficiency also matters, though, in any “conflict between justice and efficiency within the legal arena, justice prevails . . . not because it is the superior value but because it is the specific modus operandi of the legal system for solving the conflicts submitted to it” (p.77).  The issue then for judicial systems, as the organizations that process disputes and provide justice, is to recognize the importance of both values and to account for the potential interconnections and possible tradeoffs between them.

The third chapter—“Selectivity”—discusses and summarizes the socio-legal literature on how and why courts and judicial systems select disputes for litigation; while the final and fourth chapter—“Processing Capacity”—discusses and summarizes the socio-legal literature on how courts process disputes and their capacity to do so.  The fourth chapter is followed by a brief two-page “Epilogue” that “recapitulates” the thesis of the book, presenting fourteen “short propositions on the varying place and relevance of economic rationality in law and adjudication” (p.235), intended to illustrate the two primary ideas that Fix-Fierro maintains emerge from his study. [*479]

Most of the specific content of Fix-Fierro’s book is difficult to describe succinctly because of the basic nature of the book.  Courts, Justice and Efficiency does not contain original empirical research or theoretical analysis.  Nor is it a synthesis of a well defined body of scholarly literature.  Other than the introductory chapter in which the author discusses the importance of studying the issue of “court efficiency,” the book is essentially a selected description and summary of a wide-ranging and often quite disparate body of scholarly literature concerning the operation of judicial systems during the 1960s through the early 1990s in numerous countries around the world.  In essence, the book is a literature review.  In the author’s own words, one of the main purposes “of this study is to systematize and discuss . . . [e]mpirical (socio-legal) research that can be considered relevant for clarifying the relationship between court operation and efficiency . . . There was no a priori conceptual framework for organizing existing empirical studies . . . it aims to examine relevant studies for their contribution to the understanding of our general topic.  There are a significant number of other relevant studies, but I believe that those included here help sufficiently to illustrate the main problems and concepts associated with court efficiency” (p.29).

At the end of the review of the primarily theoretical socio-legal and law and economics literature on judicial systems in the second chapter, the author maintains that “Chapters 3 and 4 will examine and systematize empirical research which is relevant for the operation and organization of the courts” (p.78).  Both chapters then describe and summarize such a disparate and extensive body of scholarly literature that it is often difficult to compare most of the studies reviewed or get a sense about whether there are common objectives or conclusions among them.  Probably about a hundred or more empirical studies are reviewed in Chapters 3 and 4, including, for example: (1) a study of the selection of criminal cases in the Federal Republic of Germany in 1981, (2) a study containing data on the number of 1974 American taxpayer cases that were ultimately litigated, (3) a series of empirical studies in the 1960s and 1970s on American small claims courts, (4) several studies examining litigation rates in the Netherlands and a neighboring German state, (5) a study of the performance of regional criminal justice in Colombia in the early 1990s, (6) separate studies of appeals processes in France, Germany, Mexico, and the United States, (7) a survey of the perceptions of judges in Uruguay in 1990 concerning court organization and the administration of justice, (8) a study of the operation of lower criminal courts in Connecticut in the 1970s related to caseload issues, (9) a study of the internal organization of the Italian Supreme Court published in 1969, (10) a study of the broader organizational context in which judges in the Circuit Court of Cook County, Illinois operate, (11) a study of the recruitment process of Italian judges in the 1960s, and (12) an early 1990s study of the organizational culture in scheduling court appearances in magistrate courts in England.  The problem with interpreting the findings of these socio-legal studies to determine their relevance for court efficiency, the provision of justice, or the importance of sociological organization theory is that [*480] the author in no real sense “systematizes” or “gives meaningful structure” to the large number of widely disparate studies.  Nor does Fix-Fierro provide any overall summary of the studies’ findings (except for the list of propositions in the book’s “Epilogue”) or of their analytical methods.  Moreover, the material is not original, and the overall presentation is uneven.  The fourth chapter, alone, runs for nearly 100 pages, representing better than forty percent of the entire book.

After having patiently read all but the final two pages and still unconvinced of its exact thesis or conclusions, I found to my amazement that the author himself was well aware of the potentially unconvincing and possibly confusing nature of his book.  As he acknowledges in the first two sentences of the “Epilogue:”

If the reader has been patient enough to follow us so far through the maze of concepts and empirical studies related to court efficiency, he or she may have been left with the impression that no answer has been given to some of the questions posed at the beginning of the introductory chapter, and that apparently no clear thesis has emerged yet as a sort of connecting bridge between the different chapters of this study.  And perhaps this impression might be at the same time unjustified and justified.  (p.235)

Fix-Fierro then asserts that it would be “quite convenient to recapitulate the two main, simple ideas that can be extracted from what has been said up to now . . . economic rationality—i.e., efficiency—has penetrated the legal and judicial systems at all levels and dimensions . . . [and] economic rationality is not, and should not necessarily be, the prevalent value or the overriding concern in the context of legal decision-making” (p.235).  He then presents a bulleted list of fourteen “short propositions,” derived from the socio-legal literature in Chapters 3 and 4, meant to illustrate the two basic ideas about the place and relevance of economic rationality (efficiency) in judicial and legal systems, each proposition indicating either the significance of economic efficiency in specific legal proceedings or the importance of justice (or legal rules), or the importance of both.

So, if a reader is “left with the impression” that “no clear thesis has emerged,” the fourteen propositions in the “Epilogue” will serve as an overall summary of the hundred or more empirical socio-legal studies discussed earlier, as the propositions represent the common conclusions found in the literature concerning court efficiency and justice.  Overall, despite the misgivings I have expressed about the book, there is still much useful information contained in Courts, Justice and Efficiency, and a reader may learn a lot from reading it.

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Copyright 2004 by the author, Robert A. McGuire.