COURTS AS ORGANIZATIONS: THE DRIVE FOR EFFICIENCY AND THE REGULATION OF CLASS ACTION SETTLEMENTS

  • March 2016
  • 4 Stan. J. Complex Litig. 1-44
  • Article
Orna Rabinovich-Einy
Yair Sagy

This Article argues that legal scholarship in recent decades is sharply divided on the role of efficiency considerations in the operation of courts. One camp has highlighted the dangers of injecting a bureaucratic-managerial ethos into the halls of justice, arguing that efficiency considerations undermine the quality of judicial performance. The other camp has promoted systemic efficiency as a necessary precondition for the healthy functioning of the judiciary in the face of heavy backlogs and high costs. To a large extent the second camp has prevailed, as managerial judging, settlement-encouragement, and fast-track justice have become the norm. This Article uncovers some of the implications of these developments, as well as possible means for curbing the drive for efficiency, by drawing on organizational theory literature. Insights from organizational theory can help us move beyond a dichotomous, one- dimensional debate over efficiency toward a multi-dimensional understanding of the conditions under which efficiency can play a necessary, but not exclusive, role in the operation of courts. The Article explores these issues through an empirical examination of judicial oversight on class action settlements in Israel. 

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