Vol. 10 No. 4 (April 2000) pp. 254-256.

CIVIL JUSTICE IN CRISIS: COMPARATIVE PERSPECTIVES OF CIVIL PROCEDURE by Adrian A. S. Zuckerman (Editor). New York: Oxford University Press, 1999. X+485 pp.

Reviewed by Herbert M. Kritzer, Department of Political Science, University of Wisconsin-Madison.

Americans are fond of referring to Roscoe Pound's 1906 essay "The Causes of Popular Dissatisfaction with the Administration of Justice" when talking about such issues as court delays and the costs of litigation. CIVIL JUSTICE IN CRISIS: COMPARATIVE PERSPECTIVES OF CIVIL PROCEDURE, edited by Adrian A.S. Zuckerman, makes it clear that dissatisfaction with courts is a worldwide phenomenon. As Zuckerman notes in the preface, the perception that "civil justice is failing to meet the needs of the community ... persist[s] across national and cultural frontiers," and is to be found in both "common law and civil law legal systems" (p. v).

CIVIL JUSTICE IN CRISIS is designed to provide a broad view on current issues and activities dealing with civil justice reform around the world. The book opens with two introductory chapters: an overview and theoretical chapter by the editor and a chapter providing some historical perspective for the current discussions. Individual chapters devoted to thirteen different countries follow these two chapters. The countries discussed include: Australia, Brazil, England and Wales, France, Germany, Greece, Italy, Japan, the Netherlands, Portugal, Spain, Switzerland, and the United States. Although one might have wished for some additional coverage of countries from the southern hemisphere, there are always limits in what can be included in a collection of comparative essays.

Zuckerman's introductory chapter begins by suggesting three dimensions along which civil justice systems and the procedural frameworks that structure the operation of those system should be assessed: correctness of results, how long the system requires to reach a decision, and the costs that parties and the system itself must incur to get to a decision. In Zuckerman's analysis, the two latter dimensions are each largely implicated in or by the first, and both involve inevitable tensions. Time (or delay) can denigrate the quality or correctness of justice, although excessive dispatch can be equally negative; cost can prevent access to justice, but the quality of justice inevitably is tied to the resources devoted to achieving it. Ultimately the tensions of time and cost force compromises in procedural systems involving the balancing of time and cost with the quality of justice provided and access to the system. The challenge for civil justice systems, in Zuckerman's analysis, is in choosing an appropriate balance; the systems discussed in the volume make varying choices in trying to deal with this dilemma. After presenting this theoretical outline, Zuckerman devotes the bulk of chapter 1 to first reviewing points of concern or crisis in the countries discussed

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in the individual chapters that follow, and then discussing the role of legal aid in the various countries (legal aid has been in an ongoing crisis in England, Zuckerman's home base, since the middle years of the Thatcher government). The chapter closes with brief discussions of what Zuckerman sees as some of the common threads binding together the later chapters:

- increasing volumes of litigation;

- higher litigation costs in common law countries compared to civil law countries;

- the obstructive influence of the vested interests of the legal profession;

- general failures in legal aid strategies

- a broad trend in the direction of judicial control;

- increasing concerns with issues of proportionality in connecting cases and procedure;

- the potential "costs" of improvements in procedure that make litigation more attractive (i.e., making justice cheaper and faster makes it more attractive, and hence creates additional demands on the system and its staff).


Zuckerman sees some connections among these themes that reflect patterns cutting across the countries discussed in the volume. In particular, he sees the assertion of judicial control as indicative of changing views of the function of the civil justice system. Not only should systems "decide cases according to the law and the facts," but they also must do this while "ensur[ing] that the limited resources of the system of civil justice are justly distributed between [sic] those seeking justice" (p. 51). The second introductory chapter, by John Leubsdorf, places recent debates about procedural reform into long-term historical perspective; his discussion briefly surveys several major civil procedure reform efforts in the 19th century (the adoption of the Field Code in the U.S. and the Judicature Acts in England) and the first third of the 20th century (the creation of the Federal Rules of Civil Procedure). Leubsdorf argues that we know surprisingly little about the broad political forces that made those reforms possible (p. 61), particularly given the opposition of much of the established legal profession. More interesting is the proposition advanced by Leubsdorf that the "great reforms had little or no impact on the speed or cost of the average civil action." Leubsdorf acknowledges that he has little hard evidence to support this proposition. He does point out that the "father" of the Federal Civil Rules of Procedure, Charles Clark was "well aware [that] most cases are simple ones, concerning small sums, that settle or are otherwise resolved without much ado" because Clark had carried out one of the first statistical studies of civil litigation (ibid.). Leubsdorf does point to snippets of research that support his argument (e.g., that cases involving pretrial discovery did not increase the likelihood of settlement or shorten trials; that compulsory pre-trial conferences did not promote or speed settlement or reduce trial time; that the recent experiments associated with the Civil Justice Reform Act of 1990 demonstrate little impact of most of the alternative procedures and management techniques that were tested). Leubsdorf is not arguing that reforms have no impact; rather, his thesis is that procedural changes can have both positive and negative effects, and that "without careful investigation, it is hard to tell what change will make what difference" (p. 66). He speculates that the Federal Rules did increase accuracy, but

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probably "at the cost of added expense" (ibid.), but that this benefit varies depending upon the specifics of particular cases. Equally important, Leubsdorf suggests, is that particular procedural structures will encourage and discourage some types of cases, and those who propose changes need to think hard about what they want to encourage and discourage.

The individual country chapters are largely descriptive. They are grouped by system type, with the three chapters on common law countries first followed by the ten chapters on civil law countries. As with any collection of this type, the chapters vary in depth and quality. Most of the chapters provide an overview of the procedural structures governing civil justice, and present some basic statistical evidence on patterns of litigation and processing. Where there has been some specialized research on civil justice, key results from that research are included. If there have been major reform-oriented reports or proposals (such as those by Lord Woolf in England and M. Coulon in France), the chapter presents an overview of the changes that have been or will be implemented. Some authors conclude their chapters with a plea for reform (e.g., "t]he English civil justice system is in desperate need of reform," p. 164), while others are more sanguine about the state of affairs in their country (e.g., "[t]aken as a whole, the German system of civil justice is probably not in a bad way," p. 233).

Persons familiar with individual countries will find little surprising in the chapters on the countries that they know or those not familiar with a particular country, the overviews provide a good introduction to how a country's system operates, and taken as a whole the book gives an excellent sense of the variety of approaches to civil justice that exist around the world, even within broadly similar system types. Any reader will find specific points the peak his or her own interest. For example, I had forgotten that Swiss cantons use various systems of election to choose judges (p. 467), and I was unaware that the computation of legal fees in civil litigation in Brazil included a significant element of contingency (p. 353), although I did know that in Greece it is common for lawyers to calculate fees on a percentage of recovery basis (p. 376).

Overall CIVIL JUSTICE IN CRISIS is a useful collection of essays. Although the two introductory chapters do point in the direction of significant theoretical issues, there is nothing in the way of major theoretical advance in the book. Persons teaching comparative courses on law and courts will find it to be a useful resource on civil justice. Persons in the policy community concerned about civil justice reform will similarly find this to be a useful resource. One minor point: the absence of any index makes it difficult to access specific points on a comparative basis. I realize that preparing an index for a collection like this can be very tedious, however its absence here is something I noted almost immediately when I sought to check a point of comparison.


Copyright 2000 by the author, Herbert M. Kritzer