The Economics of Courts and Litigation

The Economics of Courts and Litigation

New Horizons in Law and Economics series

Francisco Cabrillo and Sean Fitzpatrick

Dissatisfaction with the working of courts is ubiquitous. Legal inertia and maladministration are the norm in many countries and have significant social and economic repercussions. No longer a theme relegated to the peripheries of economic analysis, the administration of justice is now recognised by most economists as being of fundamental importance for economic development, a factor increasingly being acknowledged by policymakers at all levels. The departure point for this book is the authors’ belief in the need for a systematic analysis of the incentive structures facing key players in the courts and litigation process. They focus not only on structures pertaining to the common law tradition, but offer analysis of issues not normally found in the North-American literature, such as the Latin notary and the selection and values of judges in civil law systems. They further propose an ample list of considerations for a reform agenda.

Chapter 6: Other Key Players in the Litigation Process

Francisco Cabrillo and Sean Fitzpatrick


1. CIVIL LAW NOTARIES Alongside the courts, legal systems have developed institutional mechanisms whose objective is to increment security in economic transactions. These mechanisms raise the guarantees given by parties with respect to the fulfilment of contractual agreements. In this sense, the existence of authenticated public documents and registries lends a hand in increasing levels of certainty in transactions and reducing the expected level of litigation. When we refer to notaries, it is important to be clear that notaries in common law countries exercise a very different role from notaries in civil law systems. In a country such as the United States, a notary is a ‘citizen of high moral character and integrity’ whose activities consist of witnessing and certifying documents and taking attestations and depositions, but he does not practice law. In fact lawyers are the only people entitled to give legal advice. The civil law notary – often called ‘Latin notary’ – however is a member of a legal profession who not only witnesses and certifies the validity of documents but also is entitled to give legal advice and, in fact, is often required to do so by law. He writes the documents he certifies, guarantees their legality and sometimes plays a role in the legal system similar to that exercised by judges and lawyers in the common law.1 Official authentication grants a weight of ‘truthfulness’ otherwise nonexistent in documents of a strictly private nature. It is a function that is exclusively granted by the state. A significant number of...

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