Академический Документы
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EDGARDO BUSCAGLIA
THOMAS U L E N
The authors wish to thank Pilar Domingo, William Ratliff, and Laurence Whitehead for valuable discussions about
the subject; and Antonio Brinaldi, ,~Yshley Harris, and Anthony Pietro for their invaluable research assistance.
I. I n t r o d u c t i o n
As Latin America continues the process of economic reform, the need for a well-
functioning judiciary becomes increasingly important. The shift of most economic
transactions toward the market and away from the public administrative sphere has
created an u n p r e c e d e n t e d increase in the private sector d e m a n d for an improved
definition of rights and obligations. 1 As a result, the judiciary is an important, but little
noticed, element of economic development.
Legal principles in most Latin American countries encourage the freedom to exercise
individual rights and property rights. But this freedom is meaningless without an
effective judicial system in which to vindicate these rights. Consistent enforcement
provides a stable institutional environment for economic decisions to be made in a
predictable way. In many of the judicial systems in Latin America, however, this stability
is lacking: Laws are unclear, and the way the courts apply the laws is highly uncertain.
Coupled with delays in resolving cases, these factors increase litigation costs and induce
potentially inefficient private behavior designed to avoid these costs.
The judiciaries in most Latin American countries are suffering from increasing
backlogs, delay, and corruption, which have created a pervasive distrust of the system by
the private sector and the public at large. 2 In the absence of an impartial and efficient
judiciary or alternative dispute-resolution mechanisms, private parties tend to rely on
reputation, familial relations, and repeated transactions with trusted parties. These
devices exclude many potentially socially beneficial transactions involving previously
unfamiliar parties or start-up businesses.
If the judiciary is to provide the impartiality and efficiency necessary for public trust
and economic development, a well-defined program for judicial reform needs to
address the main factors causing a deterioration in the quality and quantity of court
services. These factors include: the administration of the courts; m a n a g e m e n t tech-
niques; the system of legal education; the methods for licensing lawyers and selecting
judges; the education of the public about the legal system; the means o f access to justice;
the availability of alternative dispute-resolution mechanisms; judicial independence;
and procedural reforms. For example, in Argentina the public has stated that, to reform
the judiciary, oral proceedings and alternative dispute-resolution mechanisms should
be introduced. ~ Judges in Brazil cite improved information technology, revised court
procedures, and the creation of small claims courts as the most important elements of
judicial reform. 4
l"The notion of liberal democracy is defined not only through the compliance with certain procedural require-
ments, notably of a political nature (namely, free and periodic elections, political competition, representation,
etc.) . . . but also through the real application and realization of a rule of law regime." See Pilar Domingo, "Rule of law
and judicial systems in the context of democratization and economic liberalization: A framework for comparison and
analysis in Latin America," Division de Estudios Politicos, Centro de Investigacion y Docencia Economicas, No. 25, 1995.
2The latest World Competitiveness Report provides an international comparison of the public's confidence in their
judicial systems in 35 developed and developing countries. All Latin American countries, except Chile, rank in the
bottom 20% of the confidence index. See World Competitiveness Report (1994): see Buscaglia, E., March 13, 1995; p. A13.
"~Estudio de Opinion Acerca de la Justicia en la Argentina Institute GaUup de la Argentina, March 1994, p. 99.
4See Maria Tereza Sadek and Rogerio Bastos Arantes, "The crisis of the Brazilian judiciary: The judges' perspective,"
Paper presented at the 16th World Congress of the International Political Science Association, August 21-25, 1994, p.
9-11.
Each component of the reform measures mentioned in the text is an integral part of judicial reform. It is unrealistic,
however, to think that all the components can be dealt with at once. Stages of action must he planned considering the
costs and benefits of reform as perceived by politicians and court officers. For this conclusion see Edgardo Buscaglia
E. BUSCAGLL~AND T. ULEN 277
and Maria Dakolias, 'Judicial reform in Latin America: Economic efficiency v. institutional inertia," Proceedings of the
First Annual Meetings of the Latin Anwrican Law and Economics, Mexico City, February 2-3, 1995.
5See World Competitiveness Report, supra note 5 at 23-27.
6The results indicate that in samples of 60 to 100 firms per country,, the majority of these enterprises consider the
role of the judiciary as "deficient." See Edgardo Buscaglia, Maria Dakolias, and William Ratliff, 'Judicial Reform in Latin
America: A framework for Economic Development." Essays in Public Policy, Stanford University Press, 1995.
7The World Bank conducted the survey of 68 p r i ~ t e enterprises to determine the constraints on Ecuadorian private
sector development. The results indicated that the most significant constraints were the following: political instability,
inflation and price instability, the lack of skilled labor, the lack of infrastructure, the high level of taxation, the poor
functioning of the judicial system, excessive regulatory constraints, the lack of access to credit, and the lack of market
services. ""Ecuador: Private sector assessment," World Bank, 1994.
8See World Competitiveness Report, supra note 5 at 21.
278 Efficiency of the Latin American judiciary
Ecuador, a n d Venezuela the percentages are 56, 47, a n d 67%, respectively. 9 Addition-
ally, 76.9% o f the j u d g e s interviewed in Brazil consider that the j u d i c i a r y is in a state of
crisis, m These feelings, as we shall see in m o r e detail below, are due to a p e r c e p t i o n that
the courts are c o r r u p t a n d that there are u n p r e c e d e n t e d delays and backlogs in the
c o u r L s . 11
O n e possible corrective is for potential litigants to make every effort to avoid using
the c o u r t s - - e . g . , t h r o u g h either avoiding controversial relationships or by simply avoid-
ing disputes. ~2 A n o t h e r is for private dispute-resolution services to step in to allex4ate the
excess d e m a n d for the services of the public courts. Alternative dispute-resolution
(ADR) mechanisms, such as arbitration a n d mediation, can h e l p to alleviate the case-
load by removing c o m p l e x a n d highly visible cases from the courts' dockets.l:~ A l t h o u g h
the g e n e r a l public may benefit in the long run from the use of m o r e efficient private
sector-provided arbitration, mediation, a n d conciliation mechanisms, e x p e r i e n c e shows
that the public does n o t i m m e d i a t e l y trust new mechanisms for the supply ofjustice.~4
This is due to the fact that the average i n d M d u a l is not as familiar with the n e g o t i a t i n g
techniques n e e d e d to resolve disputes, according to la~Ters working in textile manu-
facturing a n d agriculture. 15
T h e r e may also be adverse distributional effects a n d u n d e s i r a b l e secondary ineffi-
ciency impacts of the inefficient public courts. Small c o m p a n i e s a n d low-income fam-
ilies often c a n n o t afford the relatively expensive private dispute-resolution services. T h a t
means that, if they are to have justice, they must get it from the heavily subsidized public
courts, where, as we have seen, there are long delays. Because small a n d start-up
businesses face credit constraints, they are f u r t h e r b u r d e n e d by the costs of court
delays. 16 If it also h a p p e n s that those courts are corrupt, as is the widespread p e r c e p t i o n
in Latin American, small businesses a n d low-income litigants b e c o m e the primary
targets of c o r r u p t i o n . ~7
In contrast, bigger a n d well-established businesses usually d o n o t rely as m u c h on the
public courts to smwive because they can afford private dispute-resolution alternatives
a n d also they have e x p e r i e n c e d lobbyists, who use their c o n n e c t i o n s with the local
g o v e r n m e n t elite to get e x p e d i t e d t r e a t m e n t for their large clients in the public
courts. 18
and uncertain, whereas 98% of court-users do not trust mediators unless they are proxided by the courLs. This suggests
a problem of public trust that still hampers the development of ADR mechanisms. See Buscaglia, supra note 2.
191d"
201d'
ZlThe duration of litigation used here follows the Cappelletti-Clark frame of analysis also known as the "expected
duration of the marginal case filed" (EDMCF) approach. In this context, the courts' EDMCF index is .jointly
determined by the annual nmnber of cases filed, pending, and disposed (or withdrawn). The Cappelletti Yearly Index
used here is calculated by dividing the number of pending cases for each court at the end of each year by the number
of cases disposed of during the same year. See John Merry,nan, "Measuring time delay," Stantord University (1977),
unpublished manuscript.
~eht. at 47-48.
U:~Before one draws any general conclusions, however, the analysis of times-to-disposition must be conducted within
each national legal system separately. This is owing to the sometimes profound diffe'rences in the legal systems, even
within Latin America. Another implication of this observation is that an international assessment comparing absolute
times-to-disposition across countries would be senseless because of the deep dift;erences between legal systems.
280 Efficiency of the Latin American judiciary
% Change in % Change in
filings (t - 1) dispositions t
Argentina 7 4.1
Brazil 2.1 7.9
Chile 6.8 9.1
Colombia 4.9 4.1
Ecuador 12.3 1.2
Venezuela 19.5 3.3
ance rates in courts across all jurisdictions within each o f the countries analyzed. 24 T h e
n u m b e r s shown in Table 1 below seem to justify the public's dissatisfaction with the
j u d i c i a l systems t h r o u g h o u t the region. 25
Notwithstanding these delays, in all the countries e x a m i n e d h e r e the productivity o f
the c o m m e r c i a l a n d civil courts has increased in the r e c e n t past. (By "productivity" we
m e a n the clearance rate.) To assess this variable measure o f court productivity, we
c o m p a r e the average p e r c e n t a g e change in dispositions d u r i n g p e r i o d t to the average
p e r c e n t a g e c h a n g e in court filings in p e r i o d (t - 1)--i.e., with a 1-year lag to allow the
courts time to adjust their supply to the new d e m a n d for their services. 26 T h e n u m b e r s
in Table 2 below show that, e x c e p t for Chile, the average p e r c e n t a g e increase in c o u r t
productivity d u r i n g p e r i o d t has n o t b e e n e n o u g h to satisfy the average p e r c e n t a g e
increases in the d e m a n d for filings in p e r i o d (t - 1).
Tables 1 a n d 2 above also explain why a r e c e n t survey o f the r e g i o n ' s j u d i c i a l systems
i n d i c a t e d that the majority o f c o u r t users are "not inclined" to b r i n g disputes to court
because they perceive the system to be slow, uncertain, a n d costly, or, in o t h e r words,
o f " p o o r quality. ''27 A b o u t 55% of business court-users surveyed in Latin A m e r i c a said
that they p r e f e r to negotiate a partial settlement r a t h e r than to adjudicate a dispute in
the formal c o u r t system. 2s
T h e r e are o t h e r factors that a c c o u n t for the widespread dissatisfaction with the
courts. W h e r e there are no specialized or c o n t i n u i n g education p r o g r a m s for court
officers in commercial, tax, or o t h e r business-related matters, the j u d g e s a n d clerks are
poorly trained. As a result, j u d g e s must increasingly rely in these c o m m e r c i a l a n d o t h e r
technical disputes on nonlegal experts. Because Latin A m e r i c a n legal systems allow ex
parte c o m m u n i c a t i o n , parties can a p p r o a c h judges, a n d j u d g e s can request to see the
parties or their lawyers separately. Court-users c o m m o n l y m a k e accusations that cases
24The "clearance rate" is defined as cases disposed of as a percentage of cases received by a court within a given
period of time. A decrease in the clearance rate represents a deterioration in the quality of court services. An increase
represents an improvement in the quality of court services. These measures hold, of course, under an "all other things
being equal" assumption.
25The raw infol~nlation from which we calculate the numbers presented in Table 2 has been obtained from the
annual reports of the Supreme Courts and the Office of Court Statistics of each of the countries included in our
analysis. Table 1 expands the series developed in Buscaglia and Dakolias, supra note 5 at 14.
26This 1-year lag correlation was first introduced in Buscaglia and Dakolias, supra note 6 at 15.
27Generally surveys and polls are needed to assess the population's overall confidence in the justice system as a proxy
for the court-users' perception of quality. See Buscaglia, Dakolias, and Ratliff, supra note 7.
28See World Competitiveness Report, supra note 5 at 32.
E. BUSCAGLIAAND T. UEEN 281
are decided in these private meetings, rather than in public view. 29 However, in defense
of ex parte contacts, individuals a n d businesses believe that they must use these informal
measures to motivate court personnel, i n c l u d i n g judges, to process cases that otherwise
might lie d o r m a n t for years.
The Relationship Between Judicial Resources and Judicial Efficiency in Latin America
T h e e n h a n c e m e n t of the capability of the courts to satisfy the d e m a n d for dispositions
is one of the most challenging a n d i m p o r t a n t aspects of judicial reform. As we have seen
in Table 2 above, almost evelywhere in Latin America courts are u n a b l e to supply
e n o u g h services to satisfy the c u r r e n t d e m a n d . The lack of ability to satisfy this d e m a n d
manifests itself through the increasing backlogs a n d time delays observed in Table 1.
Most observers ascribe these delays to a lack of resources or procedural defects. 3° For
example, one often hears that many countries in Latin America provide inadequate
budgets to the courts, which impedes the judiciary from sustaining even the m i n i m a l
needs to ensure the public's access to justice. 31 Additionally, observers say that inade-
quate budgets perpetuate the d e p e n d e n c e of the judiciary o n private, illegal payoffs,
a n d the political process (rather than the financial a n d other i n d e p e n d e n c e that Article
I I I j u d g e s in the U n i t e d States enjoy). Moreover, the critics also assert that the lack of
court resources causes c o r r u p t i o n a m o n g court p e r s o n n e l a n d prevents the judiciary
from attracting well-qualified judges a n d support staff. ~2 As a corrective, many judges
a n d legal scholars argue that the j u d i c i a r y m u s t have a separate a n d larger b u d g e t ,
to be c o n t r o l l e d , m a n a g e d , a n d p r o p o s e d to the legislature. 3~
Some casual evidence o n this p o i n t comes from court p e r s o n n e l c o m p e n s a t i o n
figures. O n average, salaries in the judicial sector t h r o u g h o u t Latin America r e m a i n low
by comparison to those in non-profit jobs in the private sector. For example, d u r i n g the
last decade in Ecuador a n d Venezuela, j u d g e s ' real salaries have increased 3-fold,
whereas support staffs' real salaries have increased only 54%. The same is true in
Argentina, where real salary levels in the federal system r e m a i n relatively unattractive. 34
Some countries in Latin America have proposed allotting a prespecified p r o p o r t i o n
of the g o v e r n m e n t s ' b u d g e t to the judiciary as a way to address the low-salary p r o b l e m
a n d as a m e c h a n i s m to reduce times to disposition a n d backlogsf~5 There are, however,
i m p o r t a n t differences a m o n g countries that make a proposal of a specific p r o p o r t i o n ill
advised. Differences in procedural requirements, substantive law, a n d cultural a n d legal
history m e a n that the resources n e e d e d by courts in commercial jurisdictions to pro-
duce a certain type a n d quantity of services (e.g., 1000 bankruptcy rulings) are likely to
vary greatly a m o n g countries. This means that, for instance, 3% of the g o v e r n m e n t
b u d g e t devoted to the judiciary in one country may have a very different impact on
times-to-disposition (or other measures of judicial efficiency) than the same a m o u n t
devoted to the courts in a n o t h e r country. Therefore, it is doubtful that a higher fixed
4O
i I
VENEZUELA.
mm
3O
ARGENTINA.
PERU,
20
BRAZIL.
PANAMA.
-COLOMBIA
.BOLIVIA
10 *URUGUAY
•DOMINICAN-RE ,ECUADOR
•GUATEMALA *CHILE
0 I I
0 5 10 PERSONAL 15
FJG. 1. Procedural times vs. s p e n d i n g in personal.
creases in judicial resources, we must also consider other factors affecting times-to-
disposition, such as the absence of an active case-management style or even an excessive
administrative b u r d e n falling o n judges. For example, Page has f o u n d that approxi-
mately 70% of Argentine j u d g e s ' time is spent o n nonadjudicative tasks. 4° The same
administrative duties occupy 65 a n d 69% of available judicial time in Brazil a n d Peru,
respectively. 4~ Excessive administrative r e q u i r e m e n t s do n o t fall only o n judges. Based
on recent surveys of the courts in Ecuador, Venezuela, Peru, a n d Argentina, between 20
a n d 40% of the court officers interviewed seem to welcome administrative tasks, such as
signing checks or requesting office supplies. 4z
4°See Robert Page, Argentina Report, DEA Consulting Group, 1994, unpublished manuscript.
4lid"
4"2id"
284 Efficiency of the Latin American judiciary
the factors that determine judicial efficiency in Latin America. This section focuses on
commercial litigation in Argentina and Venezuela to identify some of these additional
factors. We first specify a broad spectrum of factors that we think are likely to affect the
times-to-disposition (our measure of judicial efficiency), and then we speculate on the
likely relationship between each of those factors and judicial efficiency. We next
correlate each of these factors with the times to complete each procedural stage of
litigation for 190 commercial cases in Argentina and Venezuela. Using nonparametric
analysis, we identify those factors that are most significant in determining judicial
efficiency. This decomposition allows proponents of judicial reform to pinpoint specific
procedural stages in litigation that may need to be addressed.
4aWe m i g h t have m e a s u r e d judicial efficiency by any of a n u m b e r o f statistics: the clearance rate, the n u m b e r o f cases
d e c i d e d p e r j u d g e , times-to-disposition, sitting hours o f j u d g e s relative to sentences, a n d cost-per-case-processed are all
e x a m p l e s o f s t a n d a r d efficiency measures. Each o f these m e a s u r e s has strengths a n d weaknesses. For e x a m p l e , to m e e t
a "sustainable" efficiency criterion in the provision o f court services, a h i g h clearance rate m u s t be a c c o m p a n i e d by the
public's p e r c e p t i o n that they have reasonable access to the conrts. It is possible to find court systems with very h i g h
clearance rates that at the s a m e time lack the public's confidence, and, therefore, provide a low-quality" selwice. O n
reflection a b o u t the strengths a n d weaknesses of each m e a s u r e o r o f s o m e composite measure, we have c h o s e n to focus
on "times to disposition" as o u r principal m e a s u r e of judicial efficiency.
E. BUSCAGLIAAND T. ULEN 285
~4Clearly, there is a correlation among some of the variables we have identified as supply-side factors. For instance,
the wider availability of computer technology would, all other things being equal, free up judicial time for settlement
conferences and for substantive dispute resolution (away from administrative purposes). Also, more real resources
might well lead to more computers.
286 Efficiency of the Latin American judicia U
slightly m o r e c o m p l e x than they were with the supply-side factors. As the first two factors
(direct a n d indirect costs) increase, the d e m a n d for court services should fall. First
principles do n o t dictate a clear effect on j u d i c i a l efficiency. O n the one hand, the
h i g h e r costs o f using a court to resolve a dispute could cause potential litigants with
relatively low-quality disputes to look elsewhere for resolution. If that leaves high-quality
cases for resolution by the courts, then j u d i c i a l efficiency may improve. O n the o t h e r
hand, if the h i g h e r costs o f using courts encourages only those litigants with c o m p l e x
or high-stakes disputes to seek judicial services, only the most c o m p l e x cases may be left
in court, and, as we have seen above, c o m p l e x cases cause a r e d u c t i o n in j u d i c i a l
efficiency (i.e., an increase in times-to-disposition). Because we do n o t know which o f
these effects (or some others) will d o m i n a t e , we c a n n o t make a clear p r e d i c t i o n a b o u t
the effects o f these costs factors on j u d i c i a l efficiency.
T h e p r e d i c t e d relationship between filings p e r court a n d times-to-disposition is, by
comparison, relatively straightforward. As those filings increase, all o t h e r things b e i n g
equal, the courts should b e c o m e m o r e congested, and, so,judicial efficiency should tall
(i.e., there should be a positive correlation between filings p e r court a n d times-to-
disposition). (Later we shall look at the effect o f a closely related factor, the "propensity
to litigate.")
W h e n the stakes involved in a dispute, m e a s u r e d as a p e r c e n t a g e o f the firms' assets,
are high, there should be a positive correlation with times-to-disposition. T h e impor-
tance o f the stakes at issue, relative to the disputant's assets, is a fair m e a s u r e o f how
i m p o r t a n t the dispute is to the parties, a n d one could expect that the m o r e i m p o r t a n t
the dispute is, the m o r e hard-fought the dispute will be, in terms of the time a n d o t h e r
resources devoted to litigation. By contrast, the m o r e willing the disputants are to
discount the stakes to resolve the dispute, the s h o r t e r the dispute is likely to be.
Therefore, we should expect a negative correlation between this willingness a n d the
times-to-disposition.
Two o f the final d e m a n d - s i d e factors deal with the n a t u r e o f the lmwers pressing the
dispute. Consider, first, the nature of the lawyers, as m e a s u r e d by the size of the law firm
a n d the e x p e r i e n c e of the attorneys. T h e larger the law firms pressing the disputes, the
m o r e c o m p l e x and, therefore, lengthy the dispute is likely to be. This is because, all
o t h e r things b e i n g equal, larger law firms are able to b r i n g m o r e resources to b e a r on
a dispute, and, as a result, clients with large a m o u n t s at stake or with c o m p l e x matters
r e q u i r i n g resolution are m o r e likely to hire larger firms. ?dl of this means that the larger
the firms involved, the greater the time-to-disposition of a dispute (i.e., there will be a
positive correlation between the law-firm size a n d time-to-disposition). T u r n i n g to the
e x p e r i e n c e o f the attorneys involved, we c a n n o t be sure what the effect on j u d i c i a l
efficiency would be. O n the o n e hand, e x p e r i e n c e d attorneys know how to delay
resolution o f a dispute for as long as seems advantageous to their client. A younger,
less-experienced attorney might n o t have the guile to draw o u t a dispute. O n the o t h e r
hand, an e x p e r i e n c e d attorney is better able than is a y o u n g attorney to recognize the
true merits a n d o t h e r dimensions of a dispute a n d to b r i n g it to a resolution as
expeditiously as possible. As a result of these conflicting tendencies, we c a n n o t be sure
what the correlation will be between the e x p e r i e n c e o f the attorneys involved a n d the
time-to-disposition. Moreover, we must recognize that there will be some c o m p l e x
interactions between attorney e x p e r i e n c e a n d some of the o t h e r d e m a n d - s i d e factors
that we have identified.
T h e final factor whose effect on j u d i c i a l efficiency we shall investigate is the p r o p e n -
sity to litigate (as m e a s u r e d by the previous a m o u n t of litigation in this area a n d filings
E. BUSCAGLtaAND T. ULEN 287
per capita). As was the case with filings p e r court, when the propensity to litigate
increases, all o t h e r things b e i n g equal, the times-to-disposition are likely- to i n c r e a s e - -
i.e., the correlation should be positive. T h e courts will b e c o m e m o r e congested, reduc-
ing j u d i c i a l efficiency. (Ultimately, of course, d e p e n d i n g on what o t h e r responses there
are to this congestion, there may be an increase in j u d i c i a l resources that leads to a
r e d u c t i o n in the times-to-disposition.)
T h e r e were some additional factors that we t h o u g h t probably affected the efficiency
o f the courts b u t for which we h a d only sketchy information, i.e., the availability, a n d
price o f alternative dispute-resolution m e c h a n i s m s i o r an increase in n e t national
income, for which the effect was unclear.
4:'Following Stone, we classify firms' size within lhe textile and agricultural sectors according to their nmnber of
employees. We consider the range 1 to 25 employees to represent a small firm, the range of 26 to 250 employees to
represent a medium firm, and the range above 250 employees to represent a large firms. See Andrew Stone, "Measuring
transaction costs in the textile indust* T in Argentina, Brazil, and Chile," The World Bank, 1993, unpublished
manuscript.
4~;Previous studies have shown that the question of how to reduce time-to-dispositlon is an extremely complex issue.
This previous research, however, has been based on aggregate data rather than case-level inlormation. Our study
overcomes the limitations that have plagued previous researchers by collecting more extensive and detailed informa-
tion about the litigation, the case structure, and processing within the courts, and by aualyzing individual cascdevel
information through stn~'eys of the conrts and the litigation invoh'ed. For examples of previous studies, seeJulio Gueto
Rua, "Los abogados y la congestion en los tribunales," La L U 23-37 (1992); and Corte Suprema de Justicia, Cantidad
288 Efficiency of the Latin American judiciary
de Expedientes Tramitados en los Fueros de la Capital Federal y Jurisdicciones Federales del Interior (1991 ). See also G r e g o r , supra
note 35.
47We used the rank-based n o n p a r a m e t r i c S p e a r m a n index. A correlation coefficient is always between - 1 a n d + 1.
A correlation coefficient o f + 1 m e a n s that all o f the data are perfectly positively (directly) correlated. A correlation
coefficient o f - 1 m e a n s that all o f the data points are perfectly negative (inversely) correlated. I f the correlation
coefficient is close to 0, t h e n there is n o relationship between the variables. In o u r case, each correlation can be
significant o r insignificant at a 5% c o n f i d e n c e level. In the charts if a correlation is a c c o m p a n i e d by the symbol "(1),"
t h e n this m e a n s that there is m o r e than a 95% c h a n c e o f a zero correlation for the population.
4SWe f u r t h e r p r o b e d this claim that there is no correlation between filings p e r population a n d pretrial discussion
by u s i n g the t-distribution to c o m p u t e the likelihood o f a zero correlation. W e f o u n d that there is a v e r y h i g h likelihood
o f no correlation's existing. T h a t is, in both countries a m o r e c o n g e s t e d court is n o t likely to e x p e r i e n c e a l o n g e r
pretrial discussion stage.
E. BUSCAGLIAAND T. ULEN 289
Supply side
Time of administrative procedure .75 .88 .00 (I) .09 (I) .61 .45
Total spending resources -.36 .24 (I) -.15 (I) -.02 (I) -.56 -.10 (I)
Spending capital -.11 (I) -.26 -.00 -.01 (I) -.12 (I) -.33
Spending court personnel -.45 -.57 -.34 -.03 (I) -.56 -.78
Case management -.89 -.68 -.29 -.79 -.68 -.45
Time dedicated to ADRa -.58 -.45 -.50 -.05 (I) -.07 (1) -.05 (I)
Judge active intervention -.38 -.90 -.07 (I) -.39 -.38 -.67
Computer system -.78 -.95 -.56 -.34 -.67 -.81
Case complexity" .76 .44 .51 .59 .89 .92
Demand side
Direct costs -.34 .16 (I) -.35 .02 -.67 .18 (I)
Filing per court .78 .83 .67 .45 .57 .75
Indirect costs .28 (1) .29 (I) .38 .45 .29 (I) .18 (I)
Demand/assets .49 .36 .79 .27 .35 .35
Firms' size -.55 .07 (I) -.39 .17 (I) -.78 .02 (I)
Willingness to discount -.39 -.56 -.13 (I) -.16 (I) -.37 -.29
Size of law firm .08 .06 (I) -.01 (I) .07 (I) -.06 (I) -.03 (I)
No. of complaints .04 (I) .02 (I) .07 (I) .08 (I) -.05 (I) -.04 (I)
Cases per attorney -.12 (I) -.16 (I) -.18 (I) -.24 -.04 (I) .03 (I)
Attorney experience .39 .13 (I) .56 .57 .25 (I) .39
Filings/population .56 .76 .23 (I) .11 (I) .89 .72
a n d p r o c e d u r a l times, H e r e t h e c o r r e l a t i o n is w e a k e r t h a n t h e p r e v i o u s o n e b u t is
significant. N e g a t i v e c o r r e l a t i o n s e q u a l to - 0 . 4 5 in A r g e n t i n a a n d - 0 . 2 8 in V e n e z u e l a
c o n f i r m t h e inverse r e l a t i o n s h i p b e t w e e n real s p e n d i n g o n p e r s o n n e l a n d total time-
to-disposition within the s a m e year.
W e also f i n d t h a t t h e r e is a significant inverse c o r r e l a t i o n b e t w e e n a l a r g e r plaintiff-
f i r m a n d t h e times-to-disposition. T h e s e c o r r e l a t i o n s are - . 5 5 in A r g e n t i n a - . 4 9 in
Venezuela.
As e x p e c t e d , we also see t h a t case c o m p l e x i t y a n d the use o f c o m p u t e r s have t h e
p r e d i c t e d association with t h e times-to-disposition o b s e r v e d at all stages in b o t h c o u n -
tries. W e asked j u d g e s o r clerks to r a n k t h e c o m p l e x i t y o f t h e i r c o m m e r c i a l cases in
t e r m s o f t h e r e q u i r e d i n t e r a c t i o n with parties, the t e c h n i c a l k n o w l e d g e r e q u i r e d , a n d
the e x t e n t o f the discovery process. W e asked t h e m to r a n k c o m p l e x i t y o n a 1-to-10
scale, w h e r e "1" m e a n s " s i m p l e " a n d "10" m e a n s " e x t r e m e l y c o m p l e x . " W e t h e n c o m -
p u t e d the c o r r e l a t i o n b e t w e e n these r a n k i n g s a n d t h e times o b s e r v e d at e a c h p r o c e -
d u r a l stage. E v e n t h o u g h we observe a significant a n d positive c o r r e l a t i o n all across t h e
b o a r d (as e x p e c t e d ) , we also f i n d that the s t r o n g e s t positive c o r r e l a t i o n s exist at the
discovery a n d s e n t e n c i n g stages, w h e r e the c o m p l e x i t y o f t h e cases d e m a n d a d d i t i o n a l
time from court personnel.
Finally, we s o u g h t to find a c o r r e l a t i o n b e t w e e n the t e c h n o l o g y available to t h e c o u r t
a n d the p r o c e d u r a l times in the d i f f e r e n t phases o f litigation. ( C o m p u t e r t e c h n o l o g y is
o f t e n useful as a m e t h o d o f c o m p i l i n g a d a t a b a s e o f cases o r in s e a r c h i n g for cases o n
point, in i m p l e m e n t i n g a case-tracking system, a n d as a w o r d processor.) In o u r s a m p l e ,
290 Efficiency of the Latin American judiciary
Supply side
Time administrative procedure .41 .81 .06 (1) .02 (I) .59 .78
Total spending resources -.45 -.19 (I) -.78 -.32 -.42 -.18 (I)
Spending capital -.01 (l) .06 (I) -.00 (1) .01 (I) -.02 (I) -.15 (I)
Spending court personnel -.28 -.27 -.28 .33 (I) -.26 -.55
Case management -.29 -.18 (I) -.59 -.06 (I) .01 (I) -.29
Time dedicated to ADR -.00 (I) -.00 (l) -.50 (I) -.05 (1) .00 (I) -.69
Judge active intervention -.11 (I) -.03 (I) -.27 -.01 (I) .18 (I) -.76
Computer system -.48 -.15 (1) -.17 (I) -.21 (I) .67 -.92
Case complexity .86 .49 .51 .19 (I) .96 .69
Demand side
Direct costs -.29 .18 (I) -.77 -.52 -.88 -.01 (I)
Filing per court -.29 .18 (I) .77 -.52 -.88 -.01 (I)
Indirect costs -.18 (I) .13 (I) -.73 -.59 .71 -.02 (I)
Demand/firms' assets .83 .04 (I) .99 .82 .58 .49
Firms' size -.49 .01 (1) -.62 -.66 .01 (I) .09 (I)
Willingness to discount .69 .00 (*I) .92 -.38 -.72 -.03 (I)
Size of law firm .88 .06 (I) .01 (I) .89 -.02 (I) .03 (I)
No. of complaints .00 (I) .07 (I) .11 (I) .29 -.01 (1) -.12 (I)
Cases/attorney -.42 .00 (I) -.78 .31 .00 (I) .05 (I)
Attorney experience .31 .00 (I) .34 .29 .15 (I) .09 (I)
Filings/population .91 .96 .12 (I) .11 (I) .89 .46
IV. Conclusion
This study p r o v i d e s the first q u a n t i t a t i v e analysis o f courts within t h e Latin A m e r i c a n
region. T h e first p a r t o f this study clearly shows t h a t times-to-disposition have b e e n
i n c r e a s i n g at an u n p r e c e d e n t e d rate since 1990 t h r o u g h o u t the region. T h e m a i n
increases in t h e times-to-disposition s e e m to be c o n c e n t r a t e d within the discovery stage.
T h i s suggests the n e e d to e n f o r c e p r o c e d u r a l d e a d l i n e s d u r i n g the discovery process
w h e r e u n j u s t i f i e d m o t i o n s are c o m m o n as a strategic tool in litigation.
It is i m p o r t a n t to stress that the d e t e r i o r a t i o n in t h e q u a l i ~ ' o f c o u r t services has
o c c u r r e d d u r i n g a t i m e w h e n , in m o s t legal j u r i s d i c t i o n s , courts have i n c r e a s e d t h e i r
productivity at an i n c r e a s i n g rate. T h e s e increases, however, have n o t b e e n e n o u g h to
m a t c h the i n c r e a s i n g d e m a n d m e a s u r e d in t e r m s o f the p e r c e n t a g e c h a n g e s in c o u r t
filings. This also suggests that a l t h o u g h courts have b e e n responsive to t h e increases in
the d e m a n d for c o u r t services, they have n o t b e e n able to "catch up" a n d o v e r c o m e the
increases in filings. As a result, p e n d i n g cases have i n c r e a s e d at an u n p r e c e d e n t e d rate.
As a s o l u t i o n to this p r o b l e m , the j u d i c i a r y may a d o p t a m o r e proactive, a n d n o t
reactive, a p p r o a c h by f o r e c a s t i n g the d e m a n d for c o u r t services to avoid u n e x p e c t e d
E. BUSCAGLIAAND T. ULEN 291