From Transplant to Disintegration? a Comparative Study of the Judicial Role

תקציר

The study uncovers how judges implement transplanted constructs related to settlement reform in three countries – Italy, Israel, and England and Wales. It does so with a view towards the U.S. legal system, from which many of the transplants originated.<br><br>Observing judges in action in the Florence, Tel-Aviv, and London first instance courts, it finds that settlement-related transplants (including ADR transplants) that could be interpreted as broadening the judicial role and providing meaningful modes of dispute resolution for disputants – in fact often constrict the judicial role, causing both the courtroom and court-related ADR processes to become forums for efficiency-based negotiation. In England, the disintegration of the judicial role is most apparent as the promotion of settlement has led to obligatory measures preceding the filing of a claim, leaving judges only a marginal percentage of disputes to deal with.<br><br>Analyzing the historical context and formants underlying settlement promoting reforms, the study shows how each legal culture molded them, and demonstrates that the impetus for accepting a transplant may have a central effect on its eventual trajectory. It shows that the three observed legal systems may be viewed in general terms as presenting three sequential stages of the judicial role, with a possible trend toward disintegration. In addition, the legal systems may offer three transitional views of the tension between efficiency and justice and the way it unfolds.