Froeb, Luke M.; Kobayashi, Bruce H. --- "Adversarial versus Inquisitorial Justice" [2012] ELECD 89; in Sanchirico, William Chris (ed), "Procedural Law and Economics" (Edward Elgar Publishing, 2012)

Book Title: Procedural Law and Economics

Editor(s): Sanchirico, William Chris

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781847208248

Section: Chapter 1

Section Title: Adversarial versus Inquisitorial Justice

Author(s): Froeb, Luke M.; Kobayashi, Bruce H.

Number of pages: 18

Extract:

1 Adversarial versus inquisitorial justice
Luke M. Froeb and Bruce H. Kobayashi


1. Introduction
This chapter is about the merits of the adversarial system relative to its
implied alternative, the inquisitorial system. The adversarial and inquisito-
rial systems are the two basic procedural systems used to control disputes.1
While there are many differences between the two systems, the primary dif-
ference between the two emphasized in the economic literature is whether
the production of information is centrally controlled, or produced in a
decentralized manner by the parties.2 In an adversarial system, the parties
to the litigation produce and present evidence and arguments to a judge
or jury, who renders a verdict. Compared to the adversarial decision
maker, the inquisitorial decision maker exerts greater control over the trial
process, from the organization of the case to the gathering, presentation,
and interpretation of evidence. As a result, the parties' role is diminished,
as the judge in effect carries out his own independent investigation of the
case. In reality, all procedural systems have elements of both systems,
which can vary over time.3 However, studying the extreme characteristics
of the pure adversarial or pure inquisitorial system, as most economic
analyses have done, can lead to insights regarding the relative merits of
the two systems, and the potential effects that incremental changes in one
direction or another can have.
On the policy side, many have suggested that the adversarial system of
justice is an inefficient system.4 Critics point to selective production ...