Judging Foreign Judges Badly: Nose Counting Isn't Enough

Abstract

In the Summer 1978 issue of The Judges' Journal, a pair of researchers published an article purporting to bring the lessons of comparative study to bear upon the question of whether Americans devote adequate resources to their court system. The authors, Earl Johnson and Ann Drew, announced their conclusion in the title: "This Nation Has Money for Everything Except Its Courts." Statistical evidence from "analogous industrial democracies," especially West Germany (one of "the two most economically analogous countries studied,") brought Johnson and Drew to decide that "it may be that the American judicial system ... is currently being sabotaged by an inadequate public investment." The purpose of this article is to show that no such conclusion can be drawn from the evidence that Johnson and Drew report. My main point is that the authors have undertaken their comparison of American and European legal systems on a purely quantitative basis, disregarding the qualitative differences between our adversarial and the Europeans' nonadversarial procedures. These qualitative differences are the true source of the quantitative differences. Johnson and Drew derived erroneous implications for the manning of American courts because they ignored those characteristics of European procedure that explain European manpower levels.