21 Pages Posted: 11 Mar 2011 Last revised: 20 Mar 2012
Date Written: June 1, 2010
Asking the right question can be as important as giving the right answer. In her book Judging Civil Justice, Dame Hazel Genn forcefully argues that the right question about the civil justice system is not “how much justice we can afford” but “how much justice can we afford to forego.” Although the specific symptoms come from the English civil courts, Genn’s diagnosis has important lessons for nations the world over that are struggling with the tradeoffs between justice and delay, between competing demands for government funds, and between the private and public aspects of dispute resolution. She challenges both policymakers and ordinary citizens to focus on the benefits the court system provides and not merely on its costs.
Genn’s critique begins by exposing the severe under-funding of the civil side of the English court system, followed by an examination of its result: civil justice policy that focuses first and foremost on pushing cases out of the court system. This manifests itself in processes that discourage litigation, efforts to move disputes into mediation, and the changed role of judges as they are expected to “manage” more cases more quickly with fewer resources. To justify these measures, legal elites disparage litigation – including the unseemly tendency of judges themselves to suggest that adjudication is overpriced and unreliable, and no more worthy than any other method of resolving disputes.
This book review summarizes the most significant points of Genn’s analysis and suggests ways in which lawyers, academics, and judges in other countries can use the English experience she depicts as a lens through which our own systems and their challenges can be seen more clearly. It points to lessons about the relationship between public perception of the role of the courts and funding of those courts, between public funding and strategies to deter court use, and to the importance of examining the difference between party and court interests in the public justice debate.
Keywords: Civil Justice, Court Funding, Civil Procedure, Dispute Resolution, Case Management, Comparative Procedure
JEL Classification: K41
Suggested Citation: Suggested Citation
Thornburg, Elizabeth G., Saving Civil Justice: Judging Civil Justice (June 1, 2010). Tulane Law Review, Vol. 85, 2010; SMU Dedman School of Law Legal Studies Research Paper No. 86. Available at SSRN: https://ssrn.com/abstract=1783619
By Tamara Relis
By Jerry Mashaw