An empirical assessment of the impact of formal versus informal dispute resolution on poverty: A governance-based approach

International Review of Law and Economics

Volumn 25, Issue 1, 2005, Pages 89-106

  Buscaglia, Edgardo ^a,b   Stephan, Paul B ^b  

^a STANFORD UNIVERSITY   (United States)

^b UNIVERSITY OF VIRGINIA SCHOOL OF LAW   (United States)

Author keywords

Empirical assessment; Informal dispute resolution; Poverty

Indexed keywords

EID: 20644443691     PISSN: 01448188     EISSN: None     Source Type: Journal    
DOI: 10.1016/j.irle.2004.06.004     Document Type: Article

References (62)

1. This paper is the consequence of jurimetric policy analysis conducted by Edgardo Buscaglia in 37 countries worldwide, 17 of them also included as part of the analysis contained in this paper. Professor Buscaglia wishes to thank Maria Dakolias (The World Bank) and the United Nations for helpful support in the development of this and other related work-products.
2. The two co-authors owe a debt of gratitude to all those colleagues providing valuable comments and suggesting improvements to this paper during seminars held at Hamburg University School of Law(Germany), ENA(France), University of California at Berkeley (USA), Ghent University (Belgium), at the 2002 Annual Meeting of the European Law and Economics Association held in Vienna (Austria), and finally to the two anonymous referees of this paper.
3. See Buscaglia, Edgardo. (1996). Introduction to law and economics of development. In Buscaglia, Cooter, and Ratliff (Eds.), Law and economics of development. New Jersey: JAI Press
4. Id. at p. 56.
5. Id. at pp. 24-29
6. Cooter, Robert. (1996). The theory of market modernization of law. International Review of Law and Economics, 16(2), 141-172.
7. The principal proponents of the earlier "law and development" movement include Seidman. Robert, B. (1978). The state, law and development. New York: St. Martin's Press
8. Galanter, & Marc. (1974). Why the "haves" come out ahead: speculations on the limits of legal change. Law and Society Review, 9(1), 95
9. Trubek, David. (1972). Toward a social theory of law: An essay on the study of law and development. Yale Law Journal, 82(1), 1. These authors generally promoted comprehensive and centralized reform through legislation that would achieve modernization of public and private law through international transplants from "best practice" legal systems.
10. See Buscaglia, Edgardo, note 1 supra, at pp. 24-29.
11. This paper is the product of a larger jurimetric study covering seventeen countries. Partial results of this study are shown below as part of our analysis.
12. See Buscaglia, Edgardo, Robert Cooter, & William Ratliff (Eds.). (1996). Law and economics of development. New Jersey: JAI Press-Elsevier Science
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20. Sources of law and the institutional design of lawmaking. George Mason University Law and Economics Research Paper Series Paper No. 00-42.
21. I b i d.
22. Refer to Buscaglia, Edgardo. (1999). Judicial corruption in developing countries: Its causes and economic consequences. Essays in Public Policy. Stanford, CA: Hoover Institution Press.
23. Refer to Buscaglia, Edgardo, & Maria Dakolias. (2000). An international comparative analysis of court performance: A descriptive and analytical account. Legal and Judicial Reform Unit Technical Papers. Washington, DC: The World Bank.
24. Mahoney, Paul B. (2001). The common law and economic growth: Hayek might be right. Journal of Legal Studies, 30(2), 503.
25. Buscaglia, Edgardo, et al. (2000). Law and economics in developing countries. Stanford, California: Stanford University Press
26. Buscaglia, Edgardo, Robert Cooter, & William Ratliff (Eds.). (1996). Law and economics of development. New Jersey: JAI Press-Reed Elsevier Science.
27. Buscaglia, Edgardo. (1996). Introduction to law and economics of development. Law and economics of development (pp. 13-18). New Jersey: JAI Press.
28. Buscaglia, Edgardo, William Ratliff, & Maria Dakolias. (1995). Judicial reform in Latin America: A framework for national development. Essays in public policy. Stanford, California; Stanford University Press.
29. I b i d.
30. Corporacion Excelencia en la Justicia. (1999). Reforma Judicial en America Latina: Una Tarea Inconclusa, Bogota: CEJ (abril).
31. Id. at pp. 178-179.
32. This paper, which is part of a larger seventeen-country study, continues this perspective and defines access to justice as the capacity of a citizen or a legal person, backed by its legally and factually justified motivations, to obtain conflict resolution services either through public or private mechanisms. For more details on the seventeen country study, refer to Buscaglia (2000) supra note 15. On access to justice and ADR, refer to Spain, Larry. (1994). Alternative dispute resolution for the poor: Is it an alternative? North Dakota Law Review, 70, 234-241
33. Houseman, Alan W. (1993). ADR, justice, and the poor. National Institute for Dispute Resolution, Summer-Fall, 56-78.
34. Departamento Administrativo Nacional de Estadistica (DANE). (2000). Una Tipologia de los Municipios Colombianos segun estructuras y Grados de Desarrollo. Government Report: Year 2000: Bogota, Colombia.
35. Departamento Administrativo Nacional de Estadisticas (DANE). (2000). Censo de Poblacion con Ajustes a Junio de 2000. Santa Fe de Bogota, Colombia.
36. Consejo Sauperior de la Judicatura. (2000). Atlas Judicial de Colombia, pp. 23-24.
37. A local Colombian interdisciplinary team conducted the two surveys, with support from the Universidad del Rosario. The first survey was conducted during the period August 1998 to March 1999 and the second survey was conducted during the period August 2000 to January 2001.
38. Camilo Echandia Castilla. (2000). El Conflicto Armado y las Manifestaciones de Violencia en las Regiones de Colombia. Biblioteca par La Paz Tomo I, Bogota: Presidencia de la Republica.
39. Refer to The World Bank. (2001). Study on poverty. Washington, DC: The World Bank.
40. A recent study showed that 79.4% of the small plots suffer from some kind of title-related survey defect. Instituto Geografico Agustin Codzzi (GAC). (2000). Subdireccion de Geografia, Division de Estudios Geograficos Basicos.
41. The samples were designed to allow for a 1.5% margin of error and estimates with a 95% confidence level.
42. Cartas #1, 2 and 3, in Paz Publica: Programa de Estudios sobre Seguridad, Justicia, y Violencia. Mimeo. Bogota: Univeridad de los Andes 1997-1999.
43. For Chart 1, the survey question reads as follows: Do you and/or your family experienced any geographic, cultural, informational, economic, or any other barrier impeding your access to the following public services: water, electricity, gas, health, housing, education, trash removal, private property registries, police, prosecutors and the courts. The survey question linked to Chart 2 follows the survey question for Chart 1 and reads as follows. Please identify the obstacles you face in accessing the courts from the list below (the list is contained in Chart 2). Chart 3 is generated from the replies to the same survey question used for Chart 1.
44. I b i d.
45. Id. at p. 23.
46. Id. at p. 41.
47. All independent variables within the log regression are significant at a 1% level and have been tested to meet all regression requirements, such as testing for lack of multicolinearity and heteroscedasticity.
48. Average total costs include direct costs linked to user charges (e.g. court fees), attorney fees, fees paid to technical professionals (e.g. surveyors), administrative fees, reported bribes, and other direct costs linked to procedural delays. One of our referees observes that "for every complainant that benefits, someone else loses out. Perhaps the point is that the losers are not among the poorest groups, so that the welfare loss is to be given less weight." Our net worth calculations, however, include the net worth of both parties in the samples land disputes and demonstrate the regressive nature of both direct costs of the formal dispute resolution process and that system's impact on household wealth.
49. In earlier work on dispute resolution by business executives pioneered in the late 1960s and early 1970s by Macauley, Beale, and Dugdale, the use of informal remedies in business disputes was found to be not only the most common approach but also the least costly. Refer to Buscaglia, Edgardo. (1997). Introduction to law and economics of development. In Edgardo Buscaglia, William Ratliff, and Robert Cooter (Eds.), Law and economics of development (pp. 34-39). New Jersey: JAI Press.
50. The data covering number and diversity of dispute resolution mechanisms covering seventeen countries is part of a project conducted at the International Law and Economic Development Center (University of Virginia School of Law). Other variables, such as average total costs of access and resolution of land disputes, abuses of judicial discretion, and procedural times were all derived as part of a jurimetric study in progress. Supra note 15 at pp. 39-45.
51. Spain (1994); Houseman (1993).
52. Id. at p. 1.
53. La Semana, Narcotrafico y Guerrillas: La Prueba Reina. pp. 26-30, April 2-9, 2001.
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55. Spain (1994) and Buscaglia (2000).
56. Buscaglia, Edgardo. (1996). Justice and the strengthening of democracy. Paper Presented to USAID Conference on Justice and Democracy, Quito, Ecuador, August 7-9, 1996.
57. Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done New York, June 10, 1958, 21 U.S.T. 2517, T.I.A.S. No. 6997.
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60. See Posner, Eric. A. (1996). Law, economics, and inefficient norms. University of Pennsylvania Law Review, 144(2), 1697.
61. Id. at p. 1697.
62. This is one explanation for Soviet Russia's lack of success in incorporating the norms of European civil law. Although the formal requirements of the Civil Code matched those found in other countries, the institutions charged with implementing this body of law were unable or unwilling to mimic their counterparts in the West.