13.07.2015 Views

Download the file - United Nations Rule of Law

Download the file - United Nations Rule of Law

Download the file - United Nations Rule of Law

SHOW MORE
SHOW LESS

You also want an ePaper? Increase the reach of your titles

YUMPU automatically turns print PDFs into web optimized ePapers that Google loves.

ence o<strong>the</strong>rs in <strong>the</strong> supply chain to accept moreefficient settlement and litigation procedures.Their clients, <strong>of</strong>ten opponents in a conflict, arenot very likely to cooperate in order to find <strong>the</strong>most efficient process. The incentives on lawyers,who are in a unique position as pr<strong>of</strong>essionalsbecause <strong>the</strong>y can directly create work for eacho<strong>the</strong>r, are very different from those in a normalsupply chain. There, producers, distributors andclients all have <strong>the</strong> same incentives to cut <strong>the</strong>transaction costs, because <strong>the</strong>re is an exposureto outside competition. The incentives on judgesand o<strong>the</strong>r neutrals may also work against standardisation.They have no duty to <strong>the</strong> disputants tomake a trade-<strong>of</strong>f between costs and quality when<strong>the</strong>y organise <strong>the</strong> process through <strong>the</strong>ir decisionson procedure, and in some legal systems <strong>the</strong>y aresupposed to leave <strong>the</strong> management <strong>of</strong> <strong>the</strong> procedureto <strong>the</strong> parties.These issues regarding <strong>the</strong> management <strong>of</strong> <strong>the</strong>justice supply chain have, as far as <strong>the</strong> WorkingGroup could establish, not yet been studied indepth (Hadfield 2000 is one <strong>of</strong> <strong>the</strong> exceptions).An open question is, for instance, why legalservices to individuals tend to be performed byindividual lawyers, or small partnerships, and notby bigger companies that <strong>of</strong>fer standard servicesfor common problems, such as is <strong>the</strong> case forbanking and insurance. Ano<strong>the</strong>r issue is where<strong>the</strong> responsibility for <strong>the</strong> design and improvement<strong>of</strong> procedures should be located: Is this primarily<strong>the</strong> task <strong>of</strong> <strong>the</strong> legislator, <strong>of</strong> <strong>the</strong> judiciary, or is<strong>the</strong>re a role here for bottom up processes as well?We now turn to this topic <strong>of</strong> improving <strong>the</strong> design<strong>of</strong> procedures Simplifying ProceduresAn attractive approach to reducing legal transactioncosts wholesale, ra<strong>the</strong>r than attempting tosubsidise <strong>the</strong>se costs on a retail basis, would beto simplify <strong>the</strong> substantive and procedural law.One essential step could be to allow individualsto advance <strong>the</strong>ir legal claims without representationin small claims courts or o<strong>the</strong>r moreinformal tribunals (Lopez-de-Silanes 2002,Buscaglia and Ulen 1997). Adopting this approachis probably not without costs: Simplifyinglaws so that <strong>the</strong>y can be understood and invokedby uneducated lay people may require makinglaws cruder, less nuanced, and less efficient,although some may argue that targeting lawsbetter to <strong>the</strong> problems <strong>of</strong> <strong>the</strong> poor may have <strong>the</strong>opposite effect. If <strong>the</strong> legislator has sufficientinformation and background analysis regardingwhat constitute <strong>the</strong> most common concerns andgrievances <strong>of</strong> poor people and o<strong>the</strong>r disadvantagedgroups, <strong>the</strong> substantive legislation may betailored to be receptive to such grievances.There may be several layers within pieces <strong>of</strong>legislation that aim at different target groupsensuring that principles <strong>of</strong> equality and nondiscriminationare adhered to, whilst on ano<strong>the</strong>rlevel <strong>the</strong> legislation is drafted in a sufficientlysophisticated manner to cater for <strong>the</strong> needs fornuances and detail. Administering laws in smallclaims courts or informal tribunals entails dispensingwith some <strong>of</strong> <strong>the</strong> procedural safeguardsthat attend more formal legal proceedings, and<strong>the</strong> adjudicators in such forums may be lesscompetent. However, many <strong>of</strong> <strong>the</strong> legal issues <strong>of</strong>poor people are reasonably simple in legal terms<strong>the</strong> problem is that <strong>the</strong>y are met with overtly andunnecessary completed procedures that onlywork to exclude <strong>the</strong> poor from justice settlementmechanisms.One way <strong>of</strong> dealing with this is to provide peoplewith ‘simple’ and ‘sophisticated’ procedures nextto each o<strong>the</strong>r. Poor plaintiffs will <strong>the</strong>n be able tochoose <strong>the</strong> procedure <strong>the</strong>y find is most appropriateto <strong>the</strong>ir problem and circumstances. However,this requires clear consumer information, andnecessitates designing ‘simple’ procedures that38

Hooray! Your file is uploaded and ready to be published.

Saved successfully!

Ooh no, something went wrong!