Copyright (c) 2009 All rights reserved. http://works.bepress.com/ghadfield Recent documents in Gillian K Hadfield en-us Mon, 06 Jul 2009 10:23:01 PDT 3600 http://works.bepress.com/ghadfield/34 http://works.bepress.com/ghadfield/34 Fri, 15 May 2009 22:36:22 PDT In this essay, I revisit the public/private divide in order to explore more fully the potential for private production of law in global exchange and also to clarify what I think are differences in the way common law and civil legal scholars think about the public and the private in law. Gillian K. Hadfield Legal Design for Market Democracies Comparative Law and Economics http://works.bepress.com/ghadfield/33 http://works.bepress.com/ghadfield/33 Fri, 15 May 2009 22:22:42 PDT In this comment I respond to three comments by comparative legal scholars on my paper "Levers of Legal Design: Institutional Determinants of the Quality of Law." In this comment I respond to concerns about the potential for the reductionist methodology employed by economist to illuminate issues in comparative law, particularly in light of commitments in comparative legal scholarship to deep understanding of culture and respect for different legal systems. Gillian K. Hadfield Legal Design for Market Democracies Comparative Law and Economics http://works.bepress.com/ghadfield/32 http://works.bepress.com/ghadfield/32 Fri, 15 May 2009 21:56:55 PDT Much of the existing literature investigating the relationship between legal regimes and economic growth focuses on the agency problem of aligning judicial incentives with social welfare. In this paper I look instead at the factors that influence the quality of law when judges have incentives to promote social welfare but they have limited knowledge about the environment in which law is to be applied. The key insight is that the capacity for a legal regime to generate value-enhancing legal adaptation to local and changing conditions depends on its capacity to generate and implement adequate expertise about the environment in which law is applied. The central mechanism of adaptation is the interaction among three factors: 1) judicial incentives for rule-following and rule-adaptation, 2) litigant incentives for investing in costly evidence and innovative legal argument and 3) the accumulation of shared legal human capital- defined as the sum of litigant investments in evidence and argument- which determines the systemic likelihood of judicial error. Gillian K. Hadfield Legal Design for Market Democracies Comparative Law and Economics http://works.bepress.com/ghadfield/31 http://works.bepress.com/ghadfield/31 Fri, 15 May 2009 21:50:28 PDT In this paper I review the small amount of available data on the extent to which ordinary individuals in the U.S. have access to legal resources to navigate the law-thick world that Robert Kagan has famously called 'adversarial legalism--the American way of law.' I present this data in comparative context, relating what (little) we know about the availability of law in the U.S. to what (little) we know about the availability of law in other advanced societies and in countries transitioning to legally-mediated market democracy. I review first a set of 'legal needs' surveys that ask households about their experiences with difficult problems that are potentially subject to legal intervention or governance and their use of resources, including lawyers, to resolve those problems. The comparative analysis demonstrates that while the incidence of reported problems is relatively stable across countries (with the exception of Japan, which reports lower rates),and contact with lawyers is comparable, there are significant differences in the extent to which people in other countries are able to access other non-lawyer resources for help with a legal problem. Most strikingly, Americans appear significantly more likely to 'lump' their problems and do nothing as compared to people in other countries with arguably more robust delivery systems to provide individuals with access to legal resolutions. I then turn to macro indicators to shed light on the extent to which a country devotes resources to delivering the legal system in practice. Here I compare data on expenditure on courts and legal aid and numbers of judges, lawyers and cases in a set of European countries to the available US data. Here too we see that other countries, including those with still emerging legal systems, appear to expend considerably more resources than the US does on a per case. Together these 'tidbits' of data, which call for more careful empirical work, are suggestive of the conclusion that while the US system ostensibly relies heavily on law to mediate relationships among people and institutions, in practice there are few resources devoted to making law effective in practice, and apparently less so than in countries that are arguably less law-driven than our own. Gillian K. Hadfield Legal Design for Market Democracies Comparative Law and Economics Empirical Studies of Legal System http://works.bepress.com/ghadfield/29 http://works.bepress.com/ghadfield/29 Thu, 21 Feb 2008 17:48:24 PST Markets for legal goods and services are among the most heavily regulated in the U.S. Between the profession and the judiciary, lawyers control not only who may sell legal products but who may invent them, through restrictions on licensing, organizational form and the sharing of revenues with non-lawyers. In this paper I argue that professional control over corporate legal markets in particular--with an imposed high degree of homogeneity on the pool of people who can respond creatively to the diverse and changing economic needs--poses a significant obstacle to innovation in markets more generally and control over spiraling legal costs. Gillian K. Hadfield Contracting and Commercial Law Legal Design for Market Democracies Markets for Lawyers http://works.bepress.com/ghadfield/28 http://works.bepress.com/ghadfield/28 Thu, 21 Feb 2008 17:34:26 PST In this paper I report the results of a quantitative and qualitative empirical study of how those who were injured or lost a family member in the September 11, 2001 terrorist attacks evaluated the tradeoff between a cash payment--available through the Victim Compensation Fund--and the pursuit of litigation. Responses make it clear that potential plaintiffs saw much more at stake than monetary compensation and that the choice to forego litigation required the sacrifice of important non-monetary, civic, values: obtaining and publicizing information about what happened, prompting public findings of accountability for those responsible, and participating in the process of ensuring that there would be responsive change to what was learned about how the attacks and deaths happened. The results shed light on the framing component of the transformation of disputes, and in particular on how potential litigants see the decision to sue, or not, as a decision as much or more about how they understand their relationship to their community and their responsibilities as a citizen as how they evaluate monetary considerations. Gillian K. Hadfield Legal Design for Market Democracies Settlement and ADR http://works.bepress.com/ghadfield/26 http://works.bepress.com/ghadfield/26 Thu, 24 May 2007 13:58:37 PDT In the past decade a comparative law and economics literature has emerged that is largely organized around an effort to explain differences in country economic performance in terms of differences between common law and civil code systems. Assumptions about differences between common law and civil code regimes and the correspondence between legal regimes and judicial behavior are, however, still only weakly based in real institutional features of modern legal systems. In this paper, I examine the institutional determinants of the quality of law developed by a legal regime, drawing on a model from Hadfield (2006) which identifies five key parameters that influence legal evolution. I set out the institutional features that determine these parameters as dimensions along which real legal systems reside. These dimensions include: the organization of the judiciary and the extent to which judicial careers are organized on a bureaucratic career model or what I call a "capstone" model; the organization of the courts and the extent to which jurisdiction is general or specific; the mechanisms of information distribution and the extent to which information is distributed to a broad public audience or a more confined professional audience; the role of judges, whether active or passive, in finding facts and shaping the issues in adjudication; the role of public versus private entities in the enforcement of judgments (damages); and the degree to which the mechanisms by which legal services are produced, priced and distributed are competitive or professionally-controlled. My claim is that these key institutional dimensions, rather than conventional and more abstract distinctions based on the sources of law or judicial independence should be the primary focus of empirical efforts to evaluate and policy efforts to reform legal regimes. They are the levers of legal design. Gillian K. Hadfield Legal Design for Market Democracies Comparative Law and Economics http://works.bepress.com/ghadfield/24 http://works.bepress.com/ghadfield/24 Tue, 12 Dec 2006 10:57:19 PST The problem of harmonizing legal rules across multiple overlapping legal orders is, in part, a problem of knowledge. If the public goal of harmonization is to promote value in transactions and dispute resolution, a legal regime needs institutions that facilitate the production of multijural human capital: expertise about how legal rules interact with each other and with the environment in which economic actors design transactions and dispute processing mechanisms. Because much of this expertise is embedded with the actors involved in transactions and disputes, the production of expertise has to be supported by adequate incentives for private actors to invest in the costly production of information and the cost of sharing this information with public bodies such as courts and regulators. As an information asset, multijural human capital is subject to externalities which lead to underinvestment. In this paper I argue that international law firms can internalize some of these externalities to increase the production of multijural human capital. Significant obstacles to the cross-border integration of legal practice, however, interfere with the formation of truly multi-jurisdictional law firms and thus hamper the process of effective harmonization in multijural settings. Gillian K. Hadfield Legal Design for Market Democracies Markets for Lawyers Comparative Law and Economics http://works.bepress.com/ghadfield/23 http://works.bepress.com/ghadfield/23 Tue, 12 Dec 2006 10:54:40 PST Gillian K. Hadfield Contracting and Commercial Law Legal Design for Market Democracies Markets for Lawyers http://works.bepress.com/ghadfield/22 http://works.bepress.com/ghadfield/22 Tue, 12 Dec 2006 10:52:22 PST Gillian K. Hadfield Contracting and Commercial Law Legal Design for Market Democracies Settlement and ADR