The project of delivering timely justice shares many concerns with other legal reform projects. Richard Susskind’s online court proposal would eliminate many of the time and space issues that delay getting a case to court or resolution. Gillian Hadfield’s free market solutions have the potential to make courts more responsive and better equipped to meet changing expectations of service and quality.
This comment focusses on David Goddard’s parallel mission to encourage lawmakers to address the effectiveness and efficiency of legislation.
Goddard proposes four categories of legislative failure in his book: The overshoot (the law does more than intended), the nasty surprise (the law has unintended effects), the backfire (the law has opposite effects to those intended), and the damp squib (a completely ineffective law). Goddard illustrates a damp squib from New Zealand’s 2001 reform of the law governing the “division of property between separating couples to address the issue of disparity in post-separation earning potential as a result of the division of roles within the family”[1].
New Zealand
Before 2001 a partner’s enhanced income-earning capacity (e.g. from career advancement while the other partner managed the household) was not “property” under the Property Relationships Act, 1976. Thus enhanced income-earning potential was not subject to division in relationship property disputes or custody matters. To address the apparent unfairness this caused for spouses who sacrificed their career to take care of the household, s.15 of the Property Relationships Act was introduced to allow courts to make compensatory awards when one party’s income and living standards were significantly higher post-separation due to the division of roles during the relationship.
The reaction to the law ran the spectrum from being a wonderful opportunity for full economic redress to concerns that it would lead to an unmanageable forensic burden.
None of that happened! The new law proved both sides wrong: It neither achieved economic fairness between separating spouses nor did it use an enormous amount of court resources. In fact, according to Goddard, to this day, it is fairly normal for only one or two income disparity cases to be decided per year. There have been some years where no decisions were reported at all!
Why was this law so ineffective? The legislation contained a very broadly framed standard for when an award could be made and what would be awarded. The courts adopted a very cautious and complex approach that required extensive evidence to prove the hypothetical career trajectory of the non-career partner had they not taken on domestic roles. The extensive evidence required included claimants presenting evidence of a career they might have had and opposing parties countering with expert testimony questioning the claimant’s qualifications or personality flaws. The process, when it happened, was and still is very adversarial and demeaning. Even when awards were successful, they were typically modest and disproportionate to costs, delays, and the emotional toll of the litigation. The unnecessary delays, costs, and complexities completely eliminated incentives to pursuing income disparity claims.
It was not just that the threshold and amount of the award went unspecified that led to this law being a damp squib. Goddard argues that it was a misstep for the legislation to be completely court-focused in the first place: “I think that courts are an incredibly important last resort, but they should generally be a last resort. To frame laws that require people to go to the court to get remedies in the context of modest value claims is effectively to consign those rights, consign those entitlements, to the rubbish bin.”
Lessons on Timeliness from Goddard
If we construct a Venn diagram between the two subjects of “timely justice” and “creating effective legislation,” the following three lessons would fit into both categories:
- Delays flourish where legal processes are overly complex for the cases they serve;
- Vague and novel standards produce delay;
- Legislation should avoid too much reliance on courts for resolution
Lesson #1 – Delays flourish where legal processes are overly complex for the cases they serve
The New Zealand example supports the movement to make procedure proportional to the nature of the case. The evidentiary complexity predictably arising from the question of whether the assignment of roles within the life of a marriage resulted in setting one partner back, coupled with the limited scope of relief available was apparent from the outset. A potentially greater failing is the uncertainty of outcomes reduces the scalability of a law reform being reflected in settlements.
Lesson #2 – Vague and novel standards produce delay, especially when new to market
Vague legislative standards are a common pitfall. The undefined evidentiary threshold for an economic disparity claim in New Zealand saddled the courts with finding their own threshold. The approach, predictably, was a cautious and conservative one. The amount awarded for a successful claim was also undefined and, once again, the results were similarly cautious and conservative. It is likely that the standard and remedies were left for definition by the courts because it is not straightforward what they should be. There was simply not a clear landscape for the legislation to map onto with confidence. Particularly within domestic legislation there is a tension between fairness and effectiveness: an arbitrary standard is more accessible and affordable but also productive of resistance and public concern.
Lesson #3 – Legislation should avoid too much reliance on courts for resolution
This lesson supports the trend away from the courts to alternative resolution procedures and creating tribunals dedicated to the subject. However, courts are a very high-quality means of applying clear legislative standards. Legislation that leaves important elements of proof to an evolutionary process within the courts, especially modest-value claims, creates systemic bottlenecks that delay justice throughout the system. In New Zealand, the reform to economic disparity claims was so cumbersome that very few pursued their claims. This not only failed claimants but also tasked courts with handling inevitably complex, evidence-heavy disputes.
Goddard strongly argues that in legislative strategy the courts should be a “last resort,” yet uncertainty in the definition of the problem and remedy is often self-defeating. Whether defaulting the same process to administrative tribunals is constructive depends on factors that must be discussed elsewhere.
Goddard is on solid ground in arguing that effective legislation should include systemic efficiency by embedding alternative resolution pathways as the default or primary means of resolving modest-value disputes. Legislation should reflect this reality, guiding disputes toward the lowest-conflict and most timely resolution mechanism appropriate for the case.
[1] David Goddard, Making Laws that Work (Oxford: Hart Publishing, 2022), 18.
