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APPLIED COMPARATIVE LAW AND
JUDICIAL REFORM
*
David Louis Finnegan
Comparative legal research, the cross-national study of law and

legal institutions, is of greatest practical value to policymakers, and
to the bench and bar, when grounded in the systematic collection and
analysis of empirical data. By applying empirical research methods
to comparative law questions, legal scholars can meaningfully
contribute to improving the design and operation of legal institutions
both here and abroad, enhancing governance and judicial perfor-
mance around the world, and facilitating transnational legal practice
through a deeper understanding of how foreign jurisdictions work.
Professor Clark and others have described this approach to compara-
tive legal research as appliedcomparative law.'
Applied comparative law, like other subfields of empirical legal
scholarship, tests theoretical propositions about the law in a
systematic manner by observing legal systems and the societies
within which they function.2 In broad terms, "research is empirical
if it involves systematic investigation of real world facts or actual
societal functioning, whether by quantitative or qualitative methods,
for the purpose of making law more effective and just or the
administration of justice more fair."3 For this reason, practitioners,
policymakers and judges should have a "deep interest in empirical
* Assistant Professor of Law, Thomas M. Cooley Law School. B.S.F.S. 1988,

Georgetown University; J.D. 1991, University of Michigan Law School; Ph.D.
Candidate, Political Science, University of Michigan. I would like to thank Holly
E. Dolbey for her helpful comments on an earlier draft of this article.
'David S. Clark, Applied Comparative Law: Researching Foreign Law in an
Imperfect World, 30 INT'LJ. LEGALINFO. 232 (2002). See also KONRAD ZWEIGERT
& HEIN KOTz, INTRODUCTION TO COMPARATIVE LAW 11 (Tony Weir trans., 3d rev.
ed. 1998) ("In its appliedversion, comparative law suggests how a specific problem
can most appropriately be solved under the given social and economic
circumstances"); Jonathan Hill, ComparativeLaw, Law Reform andLegal Theory,
9 OxFORD J. LEGAL STUD. 101, 114 (1989) ("[Tlhere is the conception of
comparative law as a form of applied jurisprudence").
2See infra notes 11-56 and accompanying text.
3
N. William Hines, EmpiricalScholarship:What Should We Study and How Should
We Study It?, AALS NEWSLETTER, Feb. 2005, at 1, 3.
T.M. COOLEY J. PRAC. & CLINICAL L [Vol.
[ 8
validation" of theories about social response to legal rules,

institutions and processes. 4
The lessons of applied comparative legal inquiry serve a variety
of purposes. A primary purpose of such research is to validate
existing theories, and to generate new theories about social response
to rules, institutions and processes with an eye to improving their
quality and effectiveness. In addition, legal educators may apply
these lessons in preparing and training lawyers for cross-border
practice and for the resolution of transnational legal problems,5 a
purpose that has been emphasized by U.S. Supreme Court Justice
O'Connor.6 Indeed, at least one major U.S. law school now requires
a broad survey course in transnational law as a prerequisite for
graduation.'
This article focuses on a different practical dimension of applied
comparative legal research: the use by policymakers of empirical
scholarship to inform and enhance judicial reform efforts around the
world, particularly in developing countries and countries making the
transition from command economies to market-based systems.8
Members of the legal academy are increasingly turning to empirical
research as a tool for evaluating theoretical propositions about the
law. 9 In the field of comparative law, a good example of such
'Thomas S. Ulen, A Nobel Prize in Legal Science: Theory, Empirical Work, and
the Scientific Method in the Study of Law, 2002 U. ILL. L. REV. 875, 900.
' See generally H. Patrick Glenn, Comparative Law and Legal Practice: On
Removing the Borders, 75 TUL. L. REV. 977 (2001).
6
Sandra Day O'Connor, Broadening Our Horizons: Why American Judges and
Lawyers Must Learn About ForeignLaw, INT'L JUST. OBSERVER, June 1997, at 2.
7 See Mathias Reimann, Taking Globalization Seriously: Michigan Breaks New
Ground by Requiring the Study of TransnationalLaw, MICH. BAR. J., July 2003, at
52.
'Although the focus of this article is on the comparative study of law and legal
institutions in developing and transition economies, its message is just as relevant
to the study of other legal systems. The focus furthermore is on a particular type
of legal change in these countries-changes intended to enhance economic
performance. Applied comparative legal research may just as fruitfully address
other areas of study, e.g., the protection of human rights, criminal law enforcement,
and constitutional development.
9
See Hines, supra note 3, at 5. See also Howard Erlanger et al., Is It Time for a
2005] APPLIED COMPARATIVE LAW AND JUDICIAL REFORM 99
research is the growing body of work on judicial reform in

developing and transition economies, part of the most recent wave of
law and development research.' 0
Part I of this article describes the enterprise of applied compara-
tive law. Part II briefly discusses how applied comparative legal
research may contribute to judicial reform programs around the
world. Part 1IH demonstrates the potential value of such applied com-
parative legal research by considering a particular example of judicial
reform in the developing world, the recent creation in Tanzania of a
specialized Commercial Court. This section describes the Court's
structure and operation, examines the factors that led to the creation
of the Court, and assesses its performance and impact to date.
I. APPLIED COMPARATIVE LAW
The view that empirical inquiry should form the basis of

comparative legal scholarship is nothing new.11 This view has its 12
origins in the legal realist movement of the early twentieth century
New Legal Realism?, 2005 WIS. L. REV. 335.

"°See, e.g., Kevin E. Davis, What Can the Rule of Law Variable Tell UsAbout Rule
of Law Reforms?, 26 MICH. J. INT'L L. 141 (2004).
" See, e.g., Patricia Ewick, et al., Legacies of Legal Realism, in SOCIAL SCIENCE,
SOCIAL POLICY, AND THE LAW 1 (Patricia Ewick et al. eds., 1999) ("The dream of
enlisting social science in efforts to understand law and inform legal policy is not
new. In this century it traces its lineage at least to the work of legal realists."). See
also Ulen, supra note 4, at 899-900; JOHN HENRY SCHLEGEL, AMERICAN LEGAL
REALISM AND EMPIRICAL SOCIAL SCIENCE (1995); John H. Wigmore, Jottings on
Comparative Ideas and Institutions, 6 TUL. L. REV. 48, 51 (1931) ("Modem
scientific thought has made it generally understood that a legal institution can be
fully comprehended only in light of the social, economic, religious, political, racial,
and climatic circumstances which surround it.").
2
See, e.g., Roscoe Pound, ComparativeLaw in Space and Time, 4 AM. J. COMP.
L. 70, 71 (1955) ("[Jluristic method consists in study of a legal system functionally,
as a social instrument, as an agency of social control, and study of its institutions,
doctrines, and precepts with respect to the social ends to be served."); K.N.
Llewellyn, The Effect of Legal Institutions Upon Economics, 15 AM ECON. REV.
665 (1925). See also RUDOLF R. SCHLESINGER ET AL., COMPARATIVE LAW 48 (6th
ed., 1998).
T.M. COOLEY J. PRAC. & CLINICAL L. [Vol. 8
and finds current expression among "law and society"13 and "law and
economics"' 4 scholars and others who advocate interdisciplinary
approaches to the study of law and legal institutions. A number of
comparative legal scholars have expressly advocated for more
applied or empirical comparative legal research. 5
A. The Uses of ComparativeLaw
Some comparatists distinguish comparative law as a "scholarly"

discipline, pursued for the purpose of acquiring knowledge for its
own sake, from comparative law applied "in practice."' 16 Such a
3
See, e.g., Lawrence M. Friedman, Is There a Modem Legal Culture?, 7 RATIO
JuRIS 117, 130 (1994) [hereinafter Friedman, Legal Culture]; Lawrence M.
Friedman, The Law and Society Movement, 38 STAN. L. REV. 763 (1986).
'4 See, e.g., UGO MATTEI, COMPARATIVE LAW AND ECONOMICS (2001).
'5The most notable among these scholars is John Henry Merryman. See John
Henry Merryman, Comparative Law and Scientific Explanation, in LAW IN THE
UNITED STATES OF AMERICA IN SOCIAL AND TECHNOLOGICAL REVOLUTION 81 (J.
Hazard and W. Wagner eds., 1974); JOHN HENRY MERRYMAN, ET AL., LAW AND
SOCIAL CHANGE IN MEDrTERRANEAN EUROPE AND LATIN AMERICA: A HANDBOOK
OF LEGAL AND SOCIAL INDICATORS FOR COMPARATIVE STUDY (1979). See also
David Nelken, Comparatistsand Transferability,in COMPARATIVE LEGAL STUDIES:
TRADITIONS AND TRANSMONS 437,465 (Pierre Legrand & Roderick Munday eds.,
2003); Erik G. Jensen & Thomas C. Heller, Introduction in BEYOND COMMON
KNOWLEDGE: EMPIRICAL APPROACHES TO THE RULE OF LAW 1, 2 (Erik G. Jensen
& Thomas C. Heller eds., 2003); LYNN HAMMERGREN, USES OF EMPIRICAL
RESEARCH IN REFOCUSING JUDICIAL REFORMS: LESSONS FROM FIVE COUNTRIES
(2003), http://www.l.worldbank.org/publicsector/legal/UsesOfER.pdf; Jennifer
Widner, ComparativeLaw and ComparativePolitics,46 AM. J. COMP. L. 739,742-
44 (1998) [hereinafter Widner, ComparativeLaw]; Catherine A. Rogers, Gulliver's
Troubled Travels, or the Conundrum of ComparativeLaw, 67 GEO. WASH. L. REv.
149 (1998); John C. Reitz, How To Do ComparativeLaw, 46 AMJ. COMP. L. 617,
631 (1998); Friedman, Legal Culture,supra note 13, at 130; Hill, supra note 1, at
112; MARTIN SHAPIRO, COURTS: A COMPARATIVE AND POLrICAL ANALYSIS vii
(1981).
6 See Mathias Reimann, The Progress and Failureof Comparative Law in the
Second Half of the Twentieth Century, 50 AM J. COMP. L. 671, 672 (2002)
[hereinafter Reimann, Progressand Failure];SCHLESINGER ET AL., supra note 12,
at 47 ("Some scholars distinguish between pure comparison of law (Reine
Rechtsvergleichung) and the subsequent utilization of its results."); ZWEIGERT &
sharp distinction between scholarship and practice is unnecessary and

unwarranted; the argument here is that the lessons of scholarly
comparative legal research should carry practical implications that
can inform and enhance a variety of real world legal initiatives.
The body of comparative law literature is rife with self-doubt
about the discipline's mission and it role in the academy. Much of
this has to do with the fact that mainstream comparative legal
scholarship has tended to focus either on a descriptive characteriza-
tion and classification of legal systems, or on side-by-side com-
parisons of the formal sources of law, the "law on the books." 7
Some scholars "look beyond that but only rarely and never far."'"
The result, in the end, is the underdevelopment of comparative legal
theory and methodology. 9
Professor McDougal voiced an early and stinging criticism of the
mainstream approach to comparative legal scholarship. In his view,
the consequence of this approach is "a literature that is voluminous,
obsessively repetitious, and sterile-a literature that feeds and grows,
like a psychic cancer, upon logical classification and reclassification
and technical refinement and sub-refinement, without limit and with
a minimum of external reference and relevance."'2
One important way that comparative legal inquiry can prove to be
useful and relevant is if the research agenda is reoriented toward
tackling practical questions through the examination of empirical
data. Comparative legal scholarship should appreciate and be
sufficiently grounded in the needs of practitioners, whether they are
lawyers, judges, policymakers, or other decision-makers. 2 '
KOTZ, supra note 1, at 11 ("theoretical-descriptive" form of comparative law

distinguished from "applied" version).
"7 Mathias Reimann, Stepping Out ofthe EuropeanShadow: Why ComparativeLaw
in the United States Must Develop Its Own Agenda, 46 AM. J. COMP. L. 637, 638
(1998) [hereinafter Reimann, EuropeanShadow].
18id.
9
See Hiram E. Chodosh, ComparingComparisons:In Search of Methodology, 84
IOWA L. REv. 1025, 1057 (1999) [hereinafter Chodosh, ComparingComparisons].
2
"Myres S. McDougal, The ComparativeStudy of Law for Policy Purposes:Value
Clarificationas an Instrument of Democratic World Order, 1 AM. J. COMP. L. 24,
29
2
(1952) (emphasis added).
See, e.g., Widner, ComparativeLaw, supra note 15, at 749 ("Writing need not be
102 T.M. COOLEY J. PRAC. & CLINICAL L [Vol. 8
Scholars have long recognized one potentially relevant applica-

tion of this body of research: reforming laws and legal institutions by
improving legislation, judicial decision-making, institutional design
and structure, and the performance of other aspects of legal systems.22
The primary insight here is that legal and judicial reformers in one
jurisdiction can learn from the experience of those in other
jurisdictions and borrow ideas that seem "to work" as a way of
improving their own institutions. 2 3 Comparative legal research
should provide law reformers in a given country with "the knowledge
base to make the best choices for a country."'24
The need for such a knowledge base seems all the more pressing
in developing and transition countries, jurisdictions that have recently
undertaken or are in the process of undertaking significant legal and
judicial reform initiatives. The knowledge acquired through applied
'applied,' but a significant proportion of the work produced in a field has to respond
to the practical demands of our communities if the field [of comparative law] is to
retain
22
a niche.").
See, e.g., Chodosh, Comparing Comparisons,supra note 19, at 1071 ("Reform
is another of the fundamental aims with which comparative law is concerned.");
ZWEIGERT & KTZ, supra note 1, at 11.; REN DAVID & JOHN E.C. BRIERLY,
MAJOR LEGAL SYSTEMS IN THE WORLD TODAY: AN INTRODUCTION TO THE
COMPARATIVE STUDY OF LAW 6-8, 11-12 (2d ed. 1978); Eric Stein, Uses,
Misuses-And Nonuses of ComparativeLaw, 72 Nw. U. L. REV. 198, 216 (1977);
0. Kahn-Freund, On Uses and Misuses of ComparativeLaw, 37 MOD. L. REV. 1,
2 (1974); Max Rheinstein, ComparativeLaw-Its Functions,Methods and Usages,
22
23
ARK. L. REV. 415,424 (1968).
See TIM KOOPMANS, COURTS AND POLITICAL INSTITUTIONS: A COMPARATIVE
VIEw 4 (2003) ("[B]y learning from others, you can improve the quality of your
own legal system. It is quite possible that a well-considered use of comparative
materials may help to solve legal questions of a more or less technical nature...");
Roumeen Islam, InstitutionalReform and the Judiciary: Which Way Forward?17
(World Bank Policy Research Working Paper No. 3134,2003); Hiram E. Chodosh,
Reforming JudicialReforms Inspiredby U.S. Models, 52 DEPAULL. REV. 351,361
(2002) [hereinafter Chodosh, Reforming JudicialReforms].
24
Jeremy J. Kingsley, Legal Transplantation:Is This What the Doctor Orderedand
Are the Blood Types Compatible?The ApplicationoflnterdisciplinaryResearch to
Law Reform in the Developing World-A Case Study of CorporateGovernancein
Indonesia, 21 ARIZ. J. INT'L & COMP. L. 493, 520 (2004). See also Reimann,
EuropeanShadow, supra note 17, at 646.
comparative research should drive the engine of reform and inform

the design and implementation of reform initiatives in these
countries.25 Instead, reform efforts in developing and transition
countries have tended to proceed from preconceived notions of what
types of reforms should work.2 6 These preconceived notions need to
be tested against experience to determine the extent to which they
apply to and are the correct prescription across a wide range of
settings.
In the past fifteen years, many developing and transition countries
have undertaken law reform initiatives, including reforms of
substantive laws, procedures, and institutions. During this time,
"[m]uch has happened that can be used to generate insights, and a
reflective analysis at this juncture will provide information to aid
future legal and institutional reforms, now that they have become a
priority. ' ,27 Future efforts should be guided by past experience,
experience transformed into knowledge through systematic academic
examination and analysis.
Academic legal research and law practice, although markedly
distinct, are (or at least should be) complementary. 2 Referring to
comparative legal research, Professor Glendon and her coauthors
concluded in this vein that "[t]he best practical work is grounded in
theoretical understanding; the soundest theory emerges from constant
25 See Michael Shifter & Priscilla Hayner, Laying the Groundwork: Uses of Law-
Related Research, in MANY ROADS TO JUSTICE: THE LAW-RELATED WORK OF
FORD FOUNDATION GRANTEEs AROUND THE WORLD 315 (Mary McClymont &
Stephen Golub eds., 2000), http://fordfound.org/publications/recent-articles/
docs/manyroads.pdf [hereinafter MANY ROADS TO JUSTICE].
26
See Kingsley, supra note 24, at 497 ("[L]egal reform should place more emphasis
on practical research and rely less on preconceived and assumed knowledge.").
27 Cynthia Clement & Peter Murrell, Assessing the Value of Law in Transition
Economies: An Introduction, in ASSESSING THE VALUE OF LAW N TRANSITION
ECONOMIES 1, 6 (Peter Murrell ed., 2001).
2
See Lee C. Bollinger, The Mind in the MajorAmerican Law School, 91 MICH. L.
REV. 2167, 2170 (1993) ("If it works well, and I believe in general it has, the
interdisciplinary movement improves the professionalmission of law schools. It
makes scholarship more relevant, not less."). See also SCHLESINGER, ET AL., supra
note 12, at 47.
T.M. COOLEY J. PRAC. & CLINICAL L [Vol.
[ 8
testing against practical knowhow and experience."29 Academic legal

research can best contribute to practice in this way by engaging in
systematic empirical examination of important real-world questions,
issues and problems.3"
B. Empirical ComparativeLegal Research
To better serve this purpose, to be of practical value to policy

makers, legislators, judges and lawyers concerned with improving
legal system performance, comparative legal inquiry must go beyond
describing and categorizing foreign legal systems or sharing anec-
dotes based on personal experience. This, of course, is challenging.
Professor Hensler observed that, as a general matter, "we are more
impressed by vivid stories of problems and enthusiastic tales of
solutions than we should be, and we are less inclined to do the hard
work of collecting and analyzing data and carefully testing alternative
approaches to our problems than we need to be."'"
The comparative legal research enterprise should focus instead on
collecting and analyzing data systematically to examine the origins
of rules and institutions, the factors that shaped their development,
and the impact that they have on social and economic activity. The
lessons of scholarly comparative legal research can inform and
enhance a variety of real world legal initiatives if such research is
based on empirical inquiry.32
29
MARY ANN GLENDON, ET AL., COMPARATIVE LEGAL TRADMONS 9 (2d rev. ed.,
1994).
31See Chodosh, Reforming JudicialReforms, supra note 23, at 381 ("[O]ur most
fruitful contribution to reform may rest in our ability to develop methodologies that
are capable of articulating rationales for the acceptance or rejection of different
methods.").
31Deborah
Hensler, The Contribution of Judicial Reform to the Rule of Law 7 (May
2001), http://siteresources.worldbank.org/INTLAWJUSTINSTIResources/
henslerspeech.pdf.
32See Julius G. Getman, Contributions
of EmpiricalData to Legal Research, 35 J.
LEGAL EDUC. 489 (1985) ("Empirical study has the potential to illuminate the
workings of the legal system, to reveal its shortcomings, problems, successes, and
illusions, in a way that no amount of library research or subtle thinking can
match.").
Although most legal scholarship is grounded to some extent in the

real world and is intended to address real world problems, and
although the use of empirical methods appears to be on the rise
among legal scholars over the past decade,33 empirical legal research
remains relatively rare across the board. 34 This is particularly true
with respect to the collection and analysis of data on legal systems in
developing and transition countries. 3' According to Professor
Nelken, "a defect of much comparative work, both in theory and in
practice, is the failure to engage in sufficient empirical research into
what else is happening in the societies promoting or receiving legal
transfers."36
Comparative law scholarship would go a long way toward
removing these defects by focusing efforts on generating explanatory
theories, collecting data, and testing the theories by analyzing the
data.37 In this sense, all comparative legal inquiry should be
"applied. ' 31
33 See Michael Heise, The Past, Present, and Future of Empirical Legal
Scholarship: JudicialDecision-Makingand the New Empiricism, 2002 U. ILL. L.
REV. 819, 824 (referring to scholarship employing statistical methodologies);
Robert C. Ellickson, Trends in Legal Scholarship:A StatisticalStudy, 29 J. LEGAL
STUD. 517, 528-30 (2000); Robert C. Ellickson, The Market for "Law-And"
Scholarship,21 HARv. J. L. & PUB. POL'Y 157, 158 (1997).
" See Richard H. McAdams & Thomas S. Ulen, Introductionto Symposium, 2002
U. ILL. L. REV. 791 ("Empirical methods are still rare in legal scholarship... The
systematic organization of data and its presentation in revealing ways may be a
routine part of many scholarly disciplines, but it is not yet a routine part of legal
argumentation."); James J. White, Phoebe'sLament, 98 MICH. L. REV. 2773, 2774
(2000).
"See Reitz, supra note 15, at 631 ("[I]t is often difficult to find empirical studies
of the aspects of U.S. law in which a scholar is interested; it is even more difficult
to find relevant empirical studies for many other countries, especially third-world
countries.").
36
Nelken, supra note 15, at 465.
" See Ulen, supra note 4, at 899 ("The study of law could be a science with shared
transnational theoretical understandings and an experimental and empirical method
for confirming claims within those understandings.").
3
See GLENDON ET AL., supra note 29, at 9.
106 T.M. COOLEY J. PRAC. & CLINICAL L [
[Vol. 8
The applied comparative law research program emphasizes: (1)

generating theoretical propositions or hypotheses; (2) specifying the
variables necessary to test the propositions; (3) identifying the
manner in which these variables should be measured; (4) gathering
data on the variables; and (5) analyzing the data collected to test the
viability of the propositions. 39 Professor Widner described the pri-
mary purposes and goals of such applied comparative legal research:
It is usually explanatory, not purely descriptive, although it

may contain an important descriptive element. It asks a big,
important question, usually driven not by theory but by
observations from 'the real world' or by a discrepancy
between theoretical expectations and reality. It specifies con-
cepts carefully so that there is as little vagueness as possible.
It offers an internally consistent and empirically testable
answer; it tells the reader what evidence would show the
answer wrong.'
The critical components of this enterprise are to develop a theoretical

framework susceptible to empirical verification or falsification and
to gather data that would make possible such analysis.
Comparative legal research should be guided by an explicit
theoreticalframework.A common critique of comparative law as an
academic discipline is that it "lacks a solid theoretical foundation."41
'9 See generally RETHINKING SOCIAL INQUIRY: DIVERSE TooLs, SHARED

STANDARDS (Henry E. Brady & David Collier eds., 2004); Lee Epstein & Gary
King, The Rules of Inference, 69 U. CHICAGO L. REV. 1 (2002); Chodosh,
Comparing Comparisons,supra note 19; GARY KING ET AL., DESIGNING SOCIAL
INQUIRY: SCIENTIFIC INFERENCE IN QUALITATIVE RESEARCH (1994).
40
Widner, ComparativeLaw, supra note 15, at 744.
4'Reimann, Progress and Failure,supra note 16, at 688. See also John Henry
Merryman, ComparativeLaw and Social Change: On the Origins,Style, Decline,
and Revival of the Law and Development Movement, 25 AM. J. COMP. L. 457
(1977).
The primary goal of applied comparative legal research is explana-

tion: to explain the multidimensional relationship between the laws
and legal institutions under scrutiny and the social, political and
economic phenomena which both shape and are shaped by them.42
To achieve this goal, the research agenda should be based upon and
guided by a set of theoretical propositions about the nature of the
relationships under investigation.
Applied comparative legal research is thus analytical, and not
merely descriptive. It is predicated on positive rather than normative
analysis.43 The theoretical framework that guides the inquiry com-
prises "principles and propositions against which actual experience
can be compared in order to understand and explain, not judge, that
experience.""
In developing theoretical propositions susceptible to empirical
validation or falsification, applied comparative law is more likely to
be of practical value if the focus is placed, not on so-called grand
theories of law,45 but on questions or hypotheses involving "micro
comparisons" more narrowly tailored to the specific relationships
being studied.' For example, will the creation of a specialized com-
mercial court increase private sector activity by reducing trans-
actional risk? Will certain property law reforms increase mortgage
lending?
Comparative legal research should be as explicit and precise as
possible in formulating theoretical propositions about the relation-
"See Widner, ComparativeLaw, supra note 15, at 744.

"' See Rogers, supra note 15, at 157 ("The challenge for comparativists is to
separate the description of the objects being compared from normative evaluation
of those objects.").
'James E. Alt & Kenneth A. Shepsle, Editors' Introduction,in PERSPECTIVES ON
POsrrIvE POLITICAL ECONOMY 1 (James E. Alt & Kenneth A. Shepsle eds., 1990)
(emphasis added).
45
See William P. Alford, On the Limits of "Grand Theory" in ComparativeLaw,
61 WASH. L. REV. 945 (1986).
46
See Reimann, Progressand Failure,supra note 16, at 698 (Micro comparison
involves "testing limited falsifiable hypotheses," "pursuing explanations of the data
found," or "seeking to understand discrepancies" in the data). See also Nelken,
supra note 15, at 451 (referring to the "micro-social connections between law,
social norms and social action").
T.M. COOLEY J. PRAC. & CLINICAL L [Vol. 8
ships being considered and in identifying the factors that impact

those relationships.47 The more precisely variables are identified and
described, the more accurately they can be measured and observed.48
This is without doubt a challenging undertaking. Concepts like
"fairness," "judicial independence," or "the rule of law" are multi-
faceted and complex and therefore not readily susceptible to
specification and measurement.4 Once defined, how should such a
concept be operationalized and measured so that it can be meaning-
fully compared across jurisdictions? The difficulty of specifying and
measuring law-related variables should not stand as a complete
roadblock to applied comparative research, or limit the range of
questions asked. If anything, the difficulty emphasizes the need to
approach such inquiry in a more rigorous and systematic manner.5 '
Developing theoretical propositions and hypotheses, although a
necessary component of the applied comparative law enterprise, is
only a first step. These propositions and hypotheses must be
analyzed to determine whether they possess explanatory power. This
determination depends on an assessment of information about the
relevant variables gathered in the field, and this requires the
collection of empirical data. 2 As Professor Friedman emphasized:
4'See Chodosh, Comparing Comparisons, supra note 19, at 1052-53; Widner,

ComparativeLaw, supra note 15, at 744.
48
49
See Rogers, supra note 15, at 161.
On the challenges of specifying law-related variables and identifying appropriate
measurements, see generally Davis, supra note 10; Jennifer Widner, Building
JudicialIndependence in Common Law Africa, in THE SELF-RESTRAINING STATE:
POWER AND ACCOuNTABumrrY IN NEW DEMOCRACIES 177, 178-79 (A. Schedler et
al., eds. 1999) (judicial independence); Hill, supra note 1, at 104 (justice and
fairness).
"OSee, e.g., Chodosh, Reforming Judicial Reforms, supra note 23, at 372
("Empiricists tend to favor examining phenomena that are easily measured. Thus,
there is a strong tendency to avoid exploring qualities that are difficult to quantify
or operationalize.").
"' See Roger Cotterrell, Comparatists and Sociology, in COMPRATIVE LEGAL
STUDIES: TRADITIONS AND TRANSrTONS 131, 151 (Pierre Legrand & Roderick
Munday eds., 2003) (because of the complexities involved, "[t]he social milieux of
regulation need to be understood systematically, empirically and interpretively in
their detail and complexity.").
52 See Clark, supra note 1, at 232 (scholars "must leave the relative comfort of
We ought to be gathering empirical data, we ought to be con-

cerned with facts and measurement and trends. I would be
the first to admit that nothing can be measured without some
theory, hypothesis or idea to guide research. But theory
should be a guide, a way of organizing research and explain-
ing what research finds; it should not be a substitution.53
Despite the recognized value of and need for applied comparative

legal scholarship, the academy has produced little work in this
subfield. According to Professor Reimann, "despite many criticisms,
comparative law has still not acquired a solid empirical basis. We
have ridiculously little statistical data about the legal systems we
study and compare."' Despite the growing literature on judicial
reform around the world, there is still a general lack of empirical
work in this area. 5 This is beginning to change, 56 but the lead in
data gathering has been taken by the development banks and other
transnational NGOs, not the legal academy.
II. JUDICIAL REFORM
Over the past decade, a number of countries have embarked on

institutional reform programs designed to enhance the ability of
judiciaries to contribute meaningfully to society.57 This is
United States libraries and venture abroad to learn about the features of legal
systems not adequately described in books.").
5
Friedman, Legal Culture, supra note 13, at 130.
Reimann, Progressand Failure,supra note 16, at 686.
SSSee Jensen & Heller, supra note 15, at 2 ("During the last seven years, we have
witnessed an explosion of literature related to legal and judicial reform. Yet very
little attention has been paid to the widening gap between theory and practice, or
to the disconnection between stated project goals and objectives and the actual
activities
56
supported.").
See infra notes 80-83 and accompanying text.
57
For an excellent overview of judicial reform programs around the world, and of
the different approaches and emphases across programs, see Linn Hammergren,
InternationalAssistance to Latin American Justice Programs:Toward an Agenda
for Reforming the Reformers, in BEYOND COMMON KNOWLEDGE: EMPIRICAL
particularly true of developing countries in Latin America, Southeast

Asia, and Africa, and in countries attempting to make the transition
from communism to market-based economies. Somejudicial reform
projects are intended to address systemic problems like corruption,
lack of judicial branch independence or post-conflict reconstruction
of the judiciary. Some are targeted to a specific issue or sector like
human rights protection, juvenile justice, public legal aid, criminal
justice, or commercial dispute resolution. Others aim to improve
judicial effectiveness by focusing on caseflow management, court
administration, automation and computerization, continuing profes-
sional training, public information services, alternative dispute
resolution, procedural reform, and the like. 8
A wide range of national, regional, and international organiza-
tions and agencies has promulgated, designed, lobbied for, sponsored,
and financed justice sector reform projects around the world. These
organizations and agencies include: national development agencies
like the United States Agency for International Development, the
Canadian International Development Agency, the UK Department for
International Development, and the Danish International Develop-
ment Agency ("DANIDA"), to name just a few; regional develop-
ment banks like the Inter-American Development Bank,59 European
Bank for Reconstruction and Development, Asian Development
Bank, African Development Bank;' other multilateral financial
APPROACHES TO THE RULE OF LAW 290 (Erik G. Jensen & Thomas C. Heller eds.,
2003) [hereinafter Hammergren, InternationalAssistance]. For a review of the
theoretical and empirical issues, see Richard E. Messick, Judicial Reform and
Economic Development: A Survey of the Issues, 14 WORLD BANK RES. OBSERVER
117 (1999).
"8See Stephen J. Toope, Legal and Judicial Reform Through Development
Assistance: Some Lessons, 48 MCGILL L.J. 357, 398-402 (2003); Carl Baar, The
Development and Reform of Court Organizationand Administration, 19 PUBLIC
ADMIN. & DVLPT. 339, 345-46 (1999); Messick, supra note 57, at 118-19.
9
See, e.g., Fernando Carillo, The Inter-AmericanDevelopment Bank, in JUSTICE
DELAYED: JUDICIAL REFORM IN LATIN AMERICA 149 (Edmundo Jarqufn &
Fernando Carrillo eds., 1998).
6
°See AFRICAN DEVELOPMENT BANK, BANK GROUP STRATEGY PAPER ON LAW FOR
DEVELOPMENT (2001), http://afdb.org/pls/portal/docs/PAGE/ADB-
ADMIN_PG/DOCUMENTS/LEGALINFORMATION/IBANKGROUPSTRA
institutions like the World Bank;6' private non-governmental

organizations like the American Bar Association, particularly its
Central European and Eurasian Law Initiative (CEELI),62 and the
Ford Foundation; 63 and United Nations agencies like the United
Nations Development Program. 6"
In the United States, a variety of federal, state and private sector
organizations have supported justice sector reform projects in
transition and developing countries,6' including the National Center
for State Courts, the Federal Judicial Center, and Administrative
Office of the US Courts.' The National Center for State Courts, for
example, has provided advice and assistance on a wide range of court
management and administration issues, including case management
and backlog reduction, improving efficiency and transparency,
improving court facilities, and judicial training.67
Judicial reforms intended to improve economic performance and
foster enhanced private sector activity (e.g., those reforms designed
to improve the efficiency and effectiveness of commercial dispute
resolution) have been informed by a widely-held belief within the
global donor community that there is a positive relationship between
institutional quality in a given country and the prospects for
economic growth.6' In other words, institutions matter for economic
TEGYPAPERFORLAWANDDEVELPMENTEN.pdf.
61 See WORLD BANK, INITIATIVES IN LEGAL AND JUDICIAL REFoRM (2004),
http://www4.worldbank.org/legal/eglr/ (follow "Intro to LJR Projects" hyperlink;
then follow "Institutions in Legal and Judicial Reform" hyperlink).
62
See http://www.abanet.org/ceeli.
63
See generally MANY ROADS TO JUSTICE, supra note 25.
64 See, e.g., Jorge Obando, The United Nations Development Programme, in
JUSTICE DELAYED: JUDICIAL REFORM IN LATIN AMERICA 143 (Edmundo Jarqufn
& Fernando Carrillo eds., 1998).
65
See Jacques deLisle, Lex Americana?:United StatesLeagl Assistance,American
Legal Models, andLegal Change in the Post-CommunistWorld andBeyond, 20 U.
PA. J. INT'LECON. L. 179 (1999).
6 See generally Toope, supra note 58; Baar, supra note 58; Hammergren,
InternationalAssistance, supra note 57, at 292-306.
67
See Heike P. Gramckow, Judges and CourtsAbroad: Different Systems, Similar
Problems, 42 JUDGES' J., Summer 2003, at 7.
61 See, e.g., WORLD BANK, WORLD DEvELOPMENT REPORT 2002: BUILDING
development. For countries pursuing economic liberalization, the

argument goes, there appears to be a relationship between an effec-
tive judiciary and economic performance. 69 "According to this new
consensus, law plays a crucial role in the process of market-oriented
development."70 Improving judicial performance contributes to
economic development by reducing the costs of commercial trans-
actions and thereby facilitating private sector activity.7 '
But are these theoretical propositions supportable? Will
enhancing judicial performance, however the concept is understood,
result in increased private sector activity or economic growth? If so,
what particular enhancements are desirable? What types of reforms
should be attempted?
Despite the large number of judicial reform programs and
projects, and the substantial sums spent to design and implement
them,72 there is a widely-recognized gap between the intended impact
of the reforms and the actual results.73 "Despite billions of aid
INSTITUTIONS FORMARKETS (2002); SHAHID JAvED BURKI & GULLERMo E.

PERRY, BEYOND THE WASHINGTON CONSENSUS: INSTITUTIONS MATTER 11(1998).
69
Robert M. Sherwood et al., JudicialSystems and Economic Performance, 34 Q.
REV. ECON. & FIN. 101, 113-14 (Special Issue 1994). Sherwood and his co-authors
surmise that "it would not be surprising to eventually find that countries attempting
economic liberalization suffer at least a 15 percent penalty in their growth
momentum if their judicial systems are weak." Id. at 113.
7
Tamara Lothian & Katharina Pistor, Local Institutions,Foreign Investment and
Alternative Strategiesof Development: Some Views from Practice,42 COLUM. J.
TRANSNAT'LL. 101 (2003).
" See Islam, supra note 23, at 6-8; Douglass C. North, Institutions and a
Transaction-CostTheory of Exchange, in PERSPECTIVES ON POSITIVE POLITICAL
ECONOMY 182 (James E. Alt & Kenneth A. Shepsle eds. 1990).
72 According to one recent estimate, for example, "[d]onor assistance to promote
justice sector reform in sub-Saharan Africa has increased significantly over the last
10 years, from an estimated U.S. $17.7 million in 1994 to over $110 million in
2002." Laure-Hld1ne Piron, DonorAssistance to Justice Sector Reform in Africa:
Living Up to the New Agenda?, JUST. INITIATIVS 4 (Feb. 2005),
http://www.soros.org/resources/articles-publications/publications/Justice2005O2
07/JusticeAfrica.pdf.
73Hiram E. Chodosh, Emergencefrom the Dilemmas of Justice Reform, 38 TEX.
INT'L L. J. 587, 601 (2003); Bryant G. Garth, Building Strong and Independent
Judiciaries Through the New Law and Development: Behind the Paradox of
dollars, programs to promote the rule of law have been dis-

appointing. 74
On at least one level, this performance gap is not surprising: one
hallmark of recent judicial reform projects around the world is that
they have not been informed by knowledge gained from empirical
research." Although the literature contains examples of comparative
inquiry into the function and operation of judicial institutions,76 there
is limited empirical data and research on judicial reform in transition
and developing countries."
In industrial countries it is widely recognized that judicial

reform must be built on a solid empirical base. But because
of costs, time constraints, the difficulty of accessing court
records, and other obstacles, little analysis of case files has
preceded judicial reform in developing and transition (post-
communist) economies.78
Consensus Programsand PerpetuallyDisappointingResults, 52 DEPAuL L. REV.

383,
74
384 (2002).
Rosa Ehrenreich Brooks, The New Imperialism: Violence, Norms, and the "'Rule
of
7
Law," 101 MICH. L. REV. 2275, 2280 (2003).
1 See, e.g., Erik G. Jensen, The Rule of Law and JudicialReform: The Political
Economy of Diverse InstitutionalPatternsand Reformers' Responses, in BEYOND

COMMON KNOWLEDGE: EMPIRICAL APPROACHES TO THE RULE OF LAW 336 (Erik
G. Jensen & Thomas C. Heller eds., 2003) ("Reform strategies are developed with
minimal if any empirical research.").
76
See, e.g., COMPREHENSIVE LEGAL AND JUDICIAL DEVELOPMENT (Rudolf V. Van
Puymbroeck ed., 2001); HERBERT JACOB ET AL., COURTS, LAW & POL1TICS IN
COMPARATIVE PERSPECTIVE (1996); COMPARATIVE JUDICIAL SYSTEMS:
CHALLENGING FRONTIERS IN CONCEPTUAL AND EMPIRICAL ANALYSIS (John R.
Schmidhauser ed., 1987).
77See., e.g., Islam, supra note 23, at 16 ("Designing reform, however, is
complicated by the fact that there is little available data and research on many
countries, particularly poor countries."); Lina Hammergren, Reforming Courts: The
Role of Empirical Research, PREM NOTES, No. 65, Mar. 2002, at 1,
http://wwwl.worldbank.org/prem/premnotes/premnote65.pdf [hereinafter
Hammergren,
78
Reforming Courts]; Messick, supra note 57, at 118.
Hammergren, Reforming Courts, supra note 77, at 1.
In a telling assessment of the Canadian experience with legal and

judicial reform projects in Vietnam, Professor Toope remarked on the
absence of applied comparative legal research to guide the reform
efforts. This was not lost on the Vietnamese reformers: "key
Vietnamese legal actors came to realize that they had better improve
their capacity in comparative legal analysis if they were
79
not to end up
with an utterly incoherent 'reformed' legal system.
Despite the relative lack of applied comparative legal research on
judicial and other legal reform initiatives in developing and transition
countries, there is a growing body of academic and policy literature
on judicial reform projects in Asia, 0 Central and South America, s '
and Central Europe, Russia and the former Soviet Republics. 2
Importantly, the academic literature reflects increasing use of applied
comparative legal research methodologies to questions of legal and
judicial reforms around the world.83 Applied comparative research
79
Toope, supra note 58, at 396. In the reform context, Professor Toope recognized
the need for "the application of comparative law methods to concrete legal
problems." Id. at 416.
80
See, e.g., KATHARINA PISTOR & PHILIP A. WELLONS, THE ROLE OF LAW AND
LEGAL INSTITUTIONS IN ASIAN ECONOMIC DEVELOPMENT 1960-1995 (1999).
"' See, e.g., Hammergren, InternationalAssistance, supra note 57; MARTHA A.
FIELD & WILLIAM W. FISHER III, LEGAL REFORM INCENTRAL AMERICA: DISPUTE
RESOLUTION AND PROPERTY SYSTEMS (2001); JUSTICE DELAYED: JUDICIAL
REFORM IN LATIN AMERICA (Edmundo Jarquin & Fernando Carrillo eds., 1998);
EDGARDO BUSCAGLIA JR., ET AL., JUDICIAL REFORM IN LATIN AMERICA: A
FRAMEWORK FOR NATIONAL DEVELOPMENT (1995); Maria Dakolias, A Strategyfor
JudicialReform: The Experience of Latin America, 36 VA. J. INT'LL. 167 (1995).
82 See, e.g., JAMES H. ANDERSEN, Er AL., JUDICIAL SYSTEMS IN
TRANSITION
ECONOMIES (2005); PETER H. SOLOMON, JR. & TODD S. FOGLESONG, COURTS AND
TRANSITION INRUSSIA: THE CHALLENGE OF JUDICIAL REFORM (2000); MARK K.
DIETRICH, LEGAL AND JUDICIAL REFORM IN CENTRAL EUROPE AND THE FORMER
SOVIET UNION (2000); Scott P. Boylan, The Status ofJudicialReform in Russia, 13
AM. U. INT'L L. REV. 1327 (1998).
83 See, e.g., GORAN HYDEN ET AL., The Judiciary, in MAKING SENSE OF
GOVERNANCE: EMPIRICAL EVIDENCE FROM SIXTEEN DEVELOPING COUNTRIES 165

(Goran Hyden et al. eds., 2004); Juan Carlos Botero et al., Judicial Reform, 18
WORLD BANK RES. OBSERVER 61 (2003); Simeon Djankov et al., Courts, 118 Q.
J. ECON. 453 (2003); Daniel Berkowitz et al., The TransplantEffect, 51 AM. J.
COMP. L. 163 (2003); Hammergren, Reforming Courts, supra note 77; PETER
of this kind will better enable policymakers and reformers to test the
theoretical propositions that have heretofore shaped the reform
agenda and to address practical design and implementation questions:
To what extent is or can support for judicial infrastructure be

causally related to articulated goals? . . . What are the
prevalent hypotheses about the roles that courts are expected
to play in improving economic growth and democratic
politics?... How can these hypotheses be tested?... Is there
empirical evidence that courts can play these roles? ... Is
investing in judicial-reform projects a strategic way to get at
the problems of governance that beset many developing
countries?'
Legal and judicial reformers should be able to take advantage of the

lessons of this growing body of empirical data and research to
improve reform design, implementation, and performance."
III. JUDICIAL REFORM IN TANZANIA
Tanzania, one of the poorest nations in the world, is among the

countries that have pursued and implemented wide-ranging legal and
judicial reforms over the past decade or so.86 As part of its overall
MURRELL, DEMAND AND SUPPLY IN ROMANIAN COMMERCIAL COURTS:

GENERATING INFORMATION FOR INSTITUTIONAL REFORM (June 18, 2001),
http://papers.ssm.com/sol3/papers.cfm?abstract__id=280428; Maria Dakolias, Court
PerformanceAround the World: A ComparativePerspective,2 YALE HUM. RTS &
DEV. L. J. 87 (1999). For an assessment of recent examples of applied comparative
legal research, see MATHIAS M. SIEMS, NUMERICAL COMPARATIVE LAW: Do WE
NEED STATISTICAL EVIDENCE IN LAW IN ORDER TO REDUCE COMPLEXITY? (April
2004),
84
http://papers.ssm.con/sol3/papers.cfm ?abstract _id=280428.
Jensen & Heller, supra note 15, at 2.
85 See Jensen, supra note 75, at 337.
86 1 United Republic of Tanzania, Legal Sector Reform Programme: Medium
Term Strategy FYs 2005/06-2007/08 (Dec. 2004) [hereinafter URT, Legal Sector
Reform Programme]. For a recent overview of the state of Tanzania's economy,
see OECD DEVEOPMENT CENTRE & AFRICAN DEvELOPMENT BANK, AFRICAN
ECONOMIC OUTLOOK 2004/2005 430-44 (2005).
legal and judicial reform program, Tanzania established a new

Commercial Division of the High Court of Tanzania (the
"Commercial Court") in 1999, a specialized court with non-exclusive
jurisdiction over a wide range of high-value business and commercial
disputes. s7 Tanzania established the Commercial Court to address
perceived deficiencies in the judicial resolution of business disputes
in the country. The government believed that a speedy and reliable
vehicle for commercial dispute resolution would facilitate private
sector development and improve investor confidence.
This section of the article offers a case study of Tanzania's
Commercial Court as an example of how empirical legal research
may play a role in the law reform process. The case study is not
presented as a prototype of empirical research. Rather, it is intended
to demonstrate the importance of empirical data in understanding the
nature and operation of law reform programs and to suggest how one
may begin to analyze and assess data collected in the field.
The discussion that follows is based on qualitative data
systematically collected in the field to help answer several theoretical
questions regarding the origins and operation of specialized
commercial dispute resolution bodies. The remainder of the article
presents a brief assessment of the data, briefly summarizes the
"For an interesting account of the judiciary in Tanzania, focusing on the life story
of the long-serving former Chief Justice of Tanzania, Francis L. Nyalali, see
JENNIFER A. WIDNER, BUILDING THE RULE OF LAW (2001) [hereinafter WIDNER,
RULE OF LAW]. See also Sift Gloppen, The Accountability Functionof the Courts
in Tanzania and Zambia, in DEMOCRATIZATION AND THE JUDICIARY: THE
ACCOUNTABILITY FUNCTION OF COURTS IN NEW DEMOCRACIES 112-36 (Siri
Gloppen et al. eds., 2004); Ibrahim Hamisi Juma, Public OrderLaws in Changing
PoliticalLandscape: The Role of Executive, Legislature, and the Judiciary, in
FUNDAMENTAL RIGHTS AND FREEDOMS IN TANzANIA 83 (Chris Maina Peter &
Ibrahim Hamisi Juma eds., 1998); J.T. Mwaikusa, The Limits of Judicial
Enterprise:JudicialPowers in the Process of PoliticalChange in Tanzania, 40 J.
AFRICAN L. 243 (1996); Rainier Michael Bierwagen & Chris Maina Peter,
AdministrationofJustice in TanzaniaandZanzibar:A ComparisonofTwo Judicial
Systems in One Country, 38 INT'L & COMP. L. Q. 395 (1989); M.K. B. Wambali
& C.M. Peter, The Judiciaryin Context: The Case of Tanzania, in THE ROLE OF
THE JUDICIARY IN PLURAL SOCIETIES 131 (Neelan Tiruchelvam & Radhika
Coomaraswamy eds., 1987).
structure and operation of Tanzania's Commercial Court, identifies

and examines the factors that contributed to the creation of the Court,
offers a brief assessment of its performance and impact, and suggests
avenues of inquiry for future research. Although it is too early in the
life of the Court to draw definitive conclusions about its overall long-
term impact, to date the Court has demonstrated an ability to resolve
commercial cases in a relatively efficient manner."8
A. TheoreticalFramework
The assessment of the Commercial Court's performance was not

motivated by any "grand theory" of law and development. Instead,
the research project focused on several theoretical concerns more
narrowly focused on particular micro-social connections of the type
described earlier: 9 First, new social institutions, formal or informal,
do not emerge in a vacuum. A variety of factors generally converge
to produce institutional innovation. In the context of Tanzania's
Commercial Court, which such factors were relevant? Why did
Tanzania create this particular type of formal dispute resolution
mechanism when it did? What were the politics behind the reform?
Second, what impact has the Commercial Court had to date? Is
the new court having the social and economic effect intended by its
creators? Has the introduction of the court improved or otherwise
changed the commercial dispute resolution process? Have the
intended beneficiaries, private sector actors, bought into the reform
and taken advantage of it? If the private sector has availed itself of
the institutional reform supplied by the state, what accounts for the
perceived levels of social demand?
At the comparative level, an exploration of these questions may
help shed light on the origins and impact of institutional change in
88 But see WORLD BANK, DOING BUSINESS 2004: UNDERSTANDING REGULATION
(2004) ("By mid-2003 the specialized court in Dares Salaam was having growing
pains .... After two years of success, it became inundated with cases."). On the
challenges of defining and measuring the success of legal reforms, see David
Nelken, Towards a Sociology of Legal Adaptation,in ADAPTING LEGALCULTURES
7, 35-50 (David Nelken & Johannes Feest eds., 2001).
" 9See supra notes 45-46 and accompanying text.
other similarly-situated countries attempting judicial or other legal

reforms. Lawyers, judges and politicians considering judicial
reforms will benefit from comparative analyses of the factors that
contribute to or impede their success. A prerequisite for this type of
analysis is an understanding of the legal systems to be compared, and
this requires the collection and consideration of empirical data on
relevant institutional and social variables.
The theoretical concerns identified above guided data collection.
The assessment that follows is based primarily on data collected by
the author in Dar es Salaam, Tanzania in November and December
2000. The data includes information systematically drawn from court
registry docket and case files; responses to surveys of Tanzanian
lawyers and business firrns;' and qualitative interviews of judges,
lawyers, law professors, government officials, and representatives
from the business and financial sectors.9"
B. The Structure and Operation of the CommercialCourt
The Government of Tanzania established the Commercial Court

in 1999 as a specialized division of the High Court of Tanzania.92 As
a division of the High Court, the Commercial Court is intended to
have jurisdiction over disputes that involve relatively large sums of
'oThe survey of lawyers was administered to a random sample of members of the

Tanganyika Law Society practicing in Dar es Salaam (N=42). The Tanganyika
Law Society is the national bar association of mainland Tanzania. The survey of
business firms was administered to a random sample of large- and medium-sized
businesses in the Dar es Salaam area (N=105).
9' The research project, including the data collection, was funded by the World
Bank in connection with the preparation of the Bank's World Development Reports
for 2002 and 2005. See WORLD BANK, WORLD DEVELOPMENT REPORT 2002:
INSTrrtTIONS FOR MARKETS (2001); WORLD BANK, WORLD DEVELOPMENT
REPORT 2005: A BErrER INVESTMENT CLIMATE FOR EVERYONE (2004).
92
For an overview of the Commercial Court's performance by the Judge in Charge
of the Commercial Division, see Steven J. Bwana, Law and Development-The
Role and Place of Commercial Courts in the Economic Revival ofAfrica: A Case
Study on the Commercial Court of Tanzania,7 REcHT INAFRIKA 217 (2004). See
also Ibrahim Juma, Memorandum on the Commercial Court of Tanzania (Nov.
2000) (unpublished manuscript, on file with the author).
money. In its first three years of operation, the Court had pecuniary
jurisdiction over cases involving amounts in controversy of at least
Tsh. 10 million (about US$8,770).93 This statutory minimum was
raised substantially by legislative amendment in 20029" so that now
disputes must involve at least Tsh. 100 million (about US$87,700)
before they are eligible for consideration by the Court. The change
in the High Court's pecuniary jurisdiction has noticeably reduced the
number of cases that are being brought before the Commercial Court,
and an effort is under way to revise the current statutory minimum.
Cases involving commercial claims valued at less than Tsh. 100
million must be filed in lower courts, principally the Resident
Magistrate or District Magistrate courts.
Although formally established as a specialized division of the
High Court of Tanzania, the Commercial Court operates in practice
as a distinct, stand-alone court. The Court operates out of its own
recently-refurbished courthouse and does not share facilities with
other divisions of the High Court, it maintains a separate registry and
case management system, and its management staff and operating
personnel are not shared with other divisions of the High Court. The
Court currently maintains registries in Dar es Salaam and two other
regions of the country, with plans to expand into several additional
regions in the near future.95
The Commercial Court has subject matter jurisdiction over
matters of "commercial significance" as that term is broadly defined
in the applicable court rules. 96 The term encompasses cases
involving the formation and governance of business firms, the
contractual relationships of firms, the restructuring or payment of
commercial debts, and liabilities arising out of a firm's business
" The Tanzanian Shilling, abbreviated here as "Tsh.," is the national currency of
Tanzania.
' Written Laws (Miscellaneous Amendments) Act, No. 3 (2002) (amending §§
40(b)(2)(a) & (b) of the Magistrates' Courts Act, No. 2 (1984)).
95
Mgeta Mganga, Commercial Courts to be Establishedin All Regions, FIN. TIMES
(Tanzania), Oct. 26, 2005, http://ippmedia.co.tz/ipp/financial/2005/10/26/
52668.html.
9 High Court Registries (Amendment) Rules 1999 § 2, GN No. 141 (June 18,
1999).
activities. Significantly, the Court's subject matter jurisdiction is not

exclusive; instead, the Court shares jurisdiction over commercial
matters concurrently with the general division of the High Court. A
plaintiff thus may choose to file its commercial case in either court
(but not both). Under certain conditions, cases filed with the general
division of the High Court can be subsequently transferred to the
Commercial Court.9 7
There are several important operational and procedural
differences between the Commercial Court and the High Court's
general division:
First, the Commercial Court has a much higher filing fee
structure.9 8 As a general matter, a party filing a case in the Com-
mercial Court must pay approximately 3.3% of the amount in
controversy as a filing fee. There is no ceiling on fee amounts. Fees
are significantly lower for cases filed in the general division of the
High Court and are capped at Tsh. 120,000 (approximately $105).
Thus, a case worth Tsh. 100 million (approximately $87,700) filed at
the Commercial Court will cost Tsh. 3.3 million in fees (approxi-
mately $2,895); the same case filed at the High Court costs the
maximum of Tsh. 120,000. The high filing fees make Commercial
Court lawsuits prohibitively expensive for many business firms.
Second, decisions of the High Court may generally be appealed
as a matter of right to the Tanzania Court of Appeal, the highest court
in the land.' However, immediate appeals of preliminary or
interlocutory orders issued by the Commercial Court are barred by
rule."° As a result, parties must wait until the Court reaches final
judgment in a case before lodging an appeal (although, as noted infra,
a loophole in the rules governing appellate practice may permit
parties to circumvent this rule). The prohibition on interlocutory
appeals eliminates a common source of delay in Tanzanian judicial
97
Id. at § 4.
98
See generally The Commercial Court (Fees) Rules 1999, GN No. 275 (Sept. 17,
1999).
9 Appellate Jurisdiction Act, No. 15 § 4(1)(a) (1979).
"Written Laws (Miscellaneous Amendments) Act, No. 10 (1999) (amending § 5
of the Appellate Jurisdiction Act, No. 15 (1979)).
proceedings-High Court cases can be delayed for many months

while awaiting appellate review of interlocutory rulings.
Third, pursuant to a fee retention policy, the Commercial Court
may retain fees paid by litigants. The Court is required to remit fees
to the treasury only after it has collected an amount equal to its
annual operating budget. The Court uses the retained fees to pay for
budgeted expenses. The general division of the High Court, on the
other hand, is not entitled to retain fees and instead must remit all
fees collected to the treasury. It is dependent upon payments
authorized and made by the Ministry of Justice and Constitutional
Affairs to meet expenses. Such payments are frequently delayed and
the High Court often runs short of essential supplies, including the
stationery used to create trial records.
Fourth, to appear before the Commercial Court, advocates must
first obtain a special certification from the Committee on Legal
Education stating that they are qualified to represent clients in
commercial cases. Otherwise, they must seek and obtain permission
from the Court every time they wish to appear. In practice, this rule
has never operated to prevent an advocate from appearing before the
Court; the Court has never denied leave for an advocate to appear.
The Commercial Court received its first case on September 16,
1999. The number of cases filed with the Court increased steadily in
its first several years of operation. In 1999-2000, 116 cases were
filed and the Court decided or otherwise resolved 66 cases; in 2001,
301 cases were filed and 227 were resolved; in 2002, 351 cases were
filed and 234 were resolved; and in the first 11 months of 2003, 158
cases were filed and 242 were resolved. The decline in the number
of cases filed with the Court in 2003, as mentioned above, is largely
attributable to the substantial increase in the Court's pecuniary
jurisdiction in 2002.
A sizeable majority of cases filed with the Court involve debt
recovery claims or other types of contract disputes. The balance of
the Court's docket is comprised of cases involving a wide range of
legal issues, including tort, trademark, property, insurance, tax, and
company law claims. Banks and financial institutions are the
heaviest users of the Court's services-in the Court's first year of
operation, for example, banks were plaintiffs in 37% of the cases and
122 T.M. COOLEY J. PRAC. & CLINICAL L. [Vol. 8
were involved as parties in almost 45% of the cases. One bank

alone, CRDB Ltd., filed 18 cases with the Court in its first year of
operation. Before the Court's pecuniary jurisdiction levels were
raised in 2002, cases filed with the Court had an average value of
approximately Tsh. 52 million (about US$49,000).
In the first 11 months of 2003, a total of 158 new cases were filed
with the Court, or an average of 14.4 per month. During this time
period, 242 cases were resolved, or an average of 22 per month. Of
these completed cases, 24% were resolved by judgment following
trial; 13% were resolved by settlement following mediation; 10%
were resolved by consent judgment, judgment on admission, or were
withdrawn; and 53% were resolved in other ways, including
settlement by means other than formal mediation."10
C. FactorsContributing to the Court's Creation
In the late 1980s, the Tanzanian government began to shift

economic policy away from agrarian socialism to market-oriented
liberalization.10 2 This radical policy shift required a comprehensive
overhaul of the legislative and regulatory framework governing
economic activity in the country. 1 3 In 1993, the government created
a Legal Task Force under the auspices of its Financial and Legal
Management Upgrade Project ("FILM-UP") to identify areas of
reform required to bring the legal system in closer conformity to the
requirements of a functioning market economy.'°4
"I'HIGH COURT OF TANZANIA (COMMERCIAL DIvIsION), THE STATE OF

COMMERCIAL CASES AT THIS COURT (2003).
112 For a
summary of Tanzania's economic liberalization program and its impact on
economic performance over the past decade, see Arne Bigsten & Anders Danielson,
Tanzania: Is the Ugly Duckling Finally Growing Up? 14-28 (Nordiska
Afrikainstitutet Research Report No. 120, 2001). See also Volker Treischel,
Tanzania'sGrowth ProcessandSuccess in Reducing Poverty (IMF Working Paper
WP/05/35, February 2005); Darius Mans, Tanzania: Resolute Action, in
ADJUSTMENT IN AFRICA 352-426 (Ishrat Husain & Rashid Faruqee eds., 1994).
3
' See generallyJ.L. Kanywanyi & N.N. Nditi, New Developments in Commercial
Law in Tanzania From a Global Perspective (1998) (unpublished manuscript, on
file with the author).
" See United Republic of Tanzania, Financial and Legal Management Upgrading
In this context, there was a general recognition within the govern-

ment and among the business and donor communities that the
prevailing environment for the judicial resolution of commercial
disputes in Tanzania was seriously deficient. One Tanzanian jurist
recently observed that "[a]larming delays and backlog of cases in
existence in the general registries of the High Court were and are not
a secret."' 15 The High Court suffered and continues to suffer from
considerable case backlog, poor case management practices, lack of
published law reports, corruption, low levels of remuneration within
the judiciary, lack of adequate physical infrastructure, and inade-
quately funded operating budgets.' 6 In addition, the judiciary has
exhibited fairly casual attitudes toward the granting of adjournments
and temporary injunctions, which only serve to increase delays and
compound the backlog problem.1 7 Finally, there was a perception
that members of the judiciary and bar lacked a sound understanding
of applicable commercial laws and legal principles, a problem that
specialization is designed to address.
These factors combined to create a perception among the business
community of unfairness within the Tanzanian judicial system. The
financial community, for example, perceived that debt recovery cases
were generally handled improperly at the general division of the High
Court. When financial institutions issue demand notices to defaulting
customers, or when they decide to pursue foreclosure proceedings on
a customer's security, the debtors often make a preemptive move by
filing a case in the High Court. The debtors are able to obtain
injunctions on an ex parte basis, sometimes through improper means,
thereby blocking foreclosure, and the case lingers for years at the
Project (FILMUP): Legal Task Force Final Legal Sector Report (1996) [hereinafter
URT, FILMUP Report].
05 L.B. Kalegeya, The Role and Place of an Advocate in the Administration of
Justice in the Commercial Court of Tanzania - One Year After its Establishment 9
(November 2000) (unpublished manuscript, on file with the author).
" See generally URT, FILMUP Report; Jens Feilberg & Finn Kettelmann,
Preliminary Report on the Identification Mission on Danish Assistance to the
Establishment of a Commercial Court in Tanzania (1998) (unpublished manuscript,
on file with the author); WIDNER, RULE OF LAW, supra note 87, at 254-90.
'° 7 See Kalegeya, supra note 105, at 17-21.
High Court. This greatly frustrates attempts to recover from

defaulting debtors.
These factors also contributed to significant delays in the
administration of justice. There is a widespread perception among
advocates and business people that routine commercial cases take
four to five years on average to be resolved in the general division of
the High Court and that cases involving more complicated issues of
commercial law can take much longer. A review of High Court
registrar files is instructive: a sample of commercial cases filed in
1997 reveals that 56% of them were still pending and had yet to be
resolved as of December 2000, more than three years later. The 44%
of cases that had been resolved took an average of 460 days to be
resolved.
The Commercial Court was designed to address these
deficiencies. The government believed that a speedy and reliable
vehicle for commercial dispute resolution would facilitate the
development of the private sector and improve investor confidence:
The main object for the establishment of the Commercial

Division was to put in place a specialized court which would
cater for the business community by determining commercial
disputes efficiently and effectively. This was necessary in the
prevailing economic situation of liberalization and privatiza-
tions: strengthening of the private sector by encouraging
08
investors, both local and foreign.
Several domestic and international factors combined to make the

establishment of the Court politically and financially viable. The
idea for a specialized commercial court began to germinate in the
early 1990s as the Tanzanian government contemplated legislative
and regulatory reforms designed to enhance on-going economic
liberalization efforts.10 9 During this period, the government
convened a task force to identify areas of legal reform required to
bring the legal system in closer conformity to the requirements of a
o8Id. at 2.
"See supra note 101 and accompanying text.
functioning market economy. One of the recommendations adopted

by the task force was the creation of a specialized court to hear
commercial and financial cases. This recommendation was accepted
at the highest levels of government and formally approved in 1997.
The recommendation received the enthusiastic support of the late
Francis Nyalali, then Chief Justice of Tanzania. Chief Justice Nyalali
took a personal interest in the Commercial Court project and was
instrumental in bringing it to fruition. He made fact-finding tours of
several countries that had established specialized commercial courts,
consulted with judges and lawyers around the world, and participated
in the subsequent formulation of a concrete proposal for the creation
of the Court.
At the same time, the business community, both locally through
various chambers of commerce and internationally via investor
pressure, worked with the donor and international financial
communities to push for the Commercial Court project. Local
business and financial communities lobbied the government for the
creation of a specialized commercial court. The business community
also used the newly liberalized media as an outlet to voice concerns
about the state of the judiciary. International investors who had
acquired shares of newly privatized Tanzanian banks and business
firms added a significant measure of support for the Commercial
Court project. When these investors realized the sizeable amount of
debt held by newly privatized enterprises, they pushed for a swifter
judicial mechanism for recovering debts.
Finally, the creation of the Commercial Court was consistent with
the increasing emphasis among donors and the international financial
institutions on creating an enabling institutional environment for
expansion of private market activity in developing and transition
economies. Beginning in 1998, DANIDA, the Danish overseas
development agency, took a specific interest in the Commercial Court
project. DANIDA provided financial support for the establishment
of the Court, including training of Court staff, refurbishment of a
permanent Commercial Court building, and provision of office
equipment and supplies. In early 1999, the Tanzania government
adopted a final proposal and the Court began operation in September
1999.
T.M. COOLEY J. PRAC. & CLINICAL L [[Vol. 8
D. Assessing the Court's Performance
From the start, the Commercial Court has demonstrated a high

degree of efficiency in handling and resolving cases, particularly as
compared to the general division of the High Court. Recall that even
the most routine commercial cases take on average four to five years
to be resolved in the general division. By contrast, in its first four
years of operation, commercial cases filed with the Commercial
Court took an average of 4.1 months to be resolved, either through
some form of pre-trial settlement (e.g., negotiation, mediation) or by
judgment following trial. In 2003, the Court had on average 247
pending cases each month. Of these pending cases, an average of
74% remained pending six months from the date of filing. Only an
average of 46% remained pending after 12 months from the date of
filing.
A number of factors help explain why the Commercial Court has
out-performed the general division of the High Court in decision-
making efficiency in the first five years of its existence: First, the
Court started with a clean slate. It did not inherit commercial cases
that were pending at the general division at the time. As a result, the
judges on the Court were not swamped by cases all at once. A
combination of the Court's novelty, the relatively high filing fees,
and the general division's concurrent jurisdiction over commercial
matters has resulted in a manageable caseload to date. The
Commercial Court receives an average of 231 new cases per year.
By comparison, the general division, with nine judges, handles
between 350 and 400 new civil cases per year. This is in addition to
the new criminal and miscellaneous matters filed each year plus the
1,100 or so matters pending from previous years.
Second, the judges and staff at the Court have tried to build a
culture of timeliness among advocates and parties. The judges have
insisted on strict adherence to time schedules and only permit
adjournments when absolutely justified. The judges are much more
proactive in case management than their counterparts in the general
division. Because it started with a clean slate, the Court had time to
establish and implement an effective case management system, a
system that has so far helped streamline movement of cases through

the judicial process.
Finally, the Court is well-funded and enjoys superior facilities.
Outside funding from DANIDA, coupled with a fee retention
scheme, has to date ensured that the Court has sufficient funds to
meet its annual operating budget. Unlike conditions at the High
Court's general division, Commercial Court judges do not have to
share chambers and office space is sufficient. All of this translates
into a favorable work environment.
Despite the undeniable decision-making efficiency of the
Commercial Court, there is little evidence that it has meaningfully
affected either the environment for commercial dispute resolution or
the overall business climate in Tanzania. This is not terribly
surprising given that the Court is only five years old. Only a small
number of litigated commercial disputes are currently filed before the
Commercial Court; most still end up at the High Court's general
division or in courts with lower pecuniary jurisdictional thresholds.
The Commercial Court's high filing fees might have something do so
with this-although 68% of Tanzanian lawyers surveyed recognize
that it takes less time to resolve a case in the Commercial Court
compared to the general division of the High Court, 61% also
understand that it is more expensive to resolve matters in the
Commercial Court. If this situation continues, the Commercial Court
will likely have little trouble maintaining decision-making efficien-
cies, but its impact on the local business community will necessarily
remain quite limited. According to one Tanzanian lawyer
experienced in handling commercial disputes, the Court "will fail in
its objectives if it continues to be a commercial court for only a small
fraction of cases."'10
To date, the creation of the Commercial Court appears to have
had little impact on business decision-making among private sector
firms and banks. Although several business firms interviewed felt
that the creation of the Commercial Court has given them more
confidence in their business operations, a majority of firms surveyed
"°Hawa Sinare, An Advocates Overview of the Commercial Court's Performance

One Year After Establishment 5 (Nov. 2000) (unpublished manuscript, on file with
the author).
128 T.M. COOLEY J. PRAC. & CLINICAL L [Vol. .8
felt that the existence of the Court is simply not very important to
their business decision-making. Similarly, within the financial
sector, there is no evidence that the existence of the Court has
positively affected the process by which banks decide to extend credit
or issue loans or make other business decisions.
E. PotentialLimiting Factors
Although it is too early to tell whether the Commercial Court will

ever have positively impact commercial dispute resolution in
Tanzania, there are several factors that may operate to limit or
impede the Court's potential ability to have such an impact:
Lack of adequate recurrentfunding. If the Commercial Court
experiences the type of budgetary problems in the future that have
plagued the High Court's general division in the past, it is unlikely to
be able to sustain its track record for efficiency. In particular, if the
number of judges on the Court does not expand with the Court's
caseload, it is unlikely that the current case flow rate can be
maintained. The judges will be unable to keep pace with the number
of cases filed and the type of backlog experienced by the general
division will develop over time. This risk increases as the
Commercial Court expands to other regions of the country.
Slow-paced reform of commercial laws. The reform of sub-
stantive commercial laws has not kept pace with the needs of the
liberalized Tanzanian economy. According to several observers,
"Tanzania's civil and commercial legislation is obsolete or archaic.
This will no doubt present severe problems for a modem commercial
court."". l This sentiment is widely shared by members of the bar and
private business firms. Over the past decade, there have been various
attempts by both the government and the private sector to identify
commercial laws and regulations in need of reform. However, these
various law reform efforts have borne little fruit to date." 2 One of
... Feilberg & Kittleman, supra note 106, at 11.

" 2 See Economic and Social Research Foundation, Review of Legal, Regulatory,
Judicial (LRJ) Framework Regarding Manufacturing and Business Sector in
Tanzania (Dec. 2000) (unpublished manuscript, on file with the author). One
notable exception is the recent revision of the primary statute governing the law of
the reasons advanced for the relatively low priority accorded

commercial law reform in Tanzania is that it is difficult to quantify
the inefficiencies or other economic losses associated with the failure
to reform commercial laws. Unless these losses can be quantified in
some concrete fashion, the political will to reform may remain
diluted. There has been little effort to identify with specificity what
is wrong with the existing body of commercial law and regulations.
Many advocates and business firms decry the antiquated nature of
commercial law in Tanzania, but when pressed cannot point to any
specific provisions or rules that impede or hinder private sector
activity.
Systemic inefficiencies. The performance of the Commercial
Court will be affected over time by pre-existing problems with and
inefficiencies in other facets of the judicial system. Indeed, some
advocates believe that the decision-making efficiency of the
Commercial Court can have little overall impact because other
aspects of the judicial system remain inefficient. These inefficiencies
include:
(a) The appellateprocess. Appeals from the Commercial

Court are treated like any other appeal from the High
Court-there is no special fast-track appellate process for
appeals of judgments in commercial cases. The Court of
Appeals, the highest court in Tanzania, has jurisdiction over
appeals from the High Court. Losing parties may appeal
unfavorable judgments of the High Court generally as a
matter of right. These appeals generally take at least two
years to be resolved, potentially frustrating the goal of
efficient resolution of commercial disputes. Moreover,
certain rules of appellate practice may operate to permit
advocates to circumvent the prohibition of interlocutory
appeals, further frustrating the goal of efficiency." 3
business organizations in Tanzania. See Companies Act, No. 12 (2002).

"3 See, e.g., Appellate Jurisdiction Amendment Act, No. 15 § 2 (1993) (amending
§ 4 of the Appellate Jurisdiction Act, No. 15 (1979)).

(b) Enforcement ofjudgments. The rules and procedures

governing the enforcement ofjudgments in commercial cases
remain unchanged and were not revised when the
Commercial Court was created. It is one thing to win a fast
judgment in court, it is another to have the judgment
enforced, i.e., collect from the losing party. The perception
among both advocates and business people is that the
enforcement of judgments in commercial cases is proble-
matic. Survey data reveals that 49% of advocates believe
enforcement of judgments in commercial cases is sometimes
a problem while 21% believe it is a very severe problem.
Similarly, 55% of business firms surveyed believe enforce-
ment of judgments is sometimes a problem in Tanzania even
where the losing party can actually afford to pay while 37%
believe it is a very severe problem.114 Referring to the
execution of judgments, one advocate asserted that the
decision-making efficiency of the Commercial Court "has not
been extended to the execution process."
(c) Forum shopping. Finally, because the jurisdiction of
the Commercial Court is non-exclusive, defaulting debtors
and other parties who might benefit from delays always have
the option of beating their adversaries to the punch by filing
cases preemptively in the High Court. This prevents their
adversaries from enjoying the Commercial Court's relative
decision-making efficiency and, despite rules that permit
transfer of cases, makes it likely that the dispute will remain
bogged down at the High Court's general division for years.
In recognition of this risk, lenders are now increasingly
"instituting cases at the Commercial Court instead to pre-
empt debtors from filing cases in the Civil Division of the
High Court and causing such cases to be held up there for
years."115
"'This perception is borne out by other available survey data. According to the
recent survey of manufacturing firms in Tanzania, 56% of frms perceive the
certainty of enforcement as poor. See Economic and Social Research Foundation,
supra note 112, at 32.
"5 Sinare, supra note 110, at 5.
IV. CONCLUSION
The case study of judicial reform in Tanzania suggests several

avenues for further comparative research, research that would
contribute to on-going law reform efforts around the world. First,
judicial reform does not occur in a vacuum. The Commercial Court
is but one part of Tanzania's on-going legal system reform
initiative. 116 Future research on judicial reform in Tanzania and else-
where must identify and assess attributes of the broader institutional
context that may affect the impact of reforms. The case study
suggests that the ability of the Commercial Court to serve as an
effective vehicle for commercial dispute resolution over time will
depend on the extent to which other deficiencies in the Tanzanian
legal system are identified and addressed. Time will tell whether
these deficiencies-for example, lagging substantive law reform,
inefficient government administration of regulations, poor
enforcement of judgments, and inefficient appellate review-will
operate to confound the very purpose of having an efficient
commercial court in the first place.
Second, research should focus on the factors that affect social
demand for the institutional reforms supplied by the state. Ultimately,
the manner in which the business community perceives the Com-
mercial Court is the critical factor. After all, private sector actors are
intended to be the primary consumers of the Court's services. If
these actors perceive the Court to be too expensive or, all things
being equal, not much more fair and efficient than the High Court's
general division, the Court will not be perceived as a worthwhile
vehicle for commercial dispute resolution. The Court's services will
remain unused and Tanzania will miss out on any contribution the
Court may have made to private sector growth or stability. More
than anything else, the Court's ability to attract users will depend on
" 6 See generallyURT, Legal Sector Reform Programme, supra note 86. In 2005,
for example, the Tanzanian parliament enacted legislation expressly intended to
enhance the independence of the judiciary, to improve judicial administration, to
improve the handling of complaints concerning judicial performance, and to
establish judicial ethics committees. See Judicial Services Act, No. 2 (2005).
the extent to which it is able to maintain performance levels over

time. This in turn depends on whether the Court remains sufficiently
well-staffed and well-funded so that it is able to handle increasing
caseloads efficiently.
The ability of legal reformers around the world to address
systemic deficiencies will be greatly enhanced by considering the
lessons of applied comparative legal research. This is particularly
true with respect to countries like Tanzania that are undertaking
extensive legal reforms and attempting, for a variety of reasons, to
make law "matter" more to social actors. In this light, "as law
becomes more deeply implicated in societies everywhere, empirically
grounded studies of law in action become more important and more
consequential for generating basic knowledge of society and for
informing policymakers.""' 7 This is one important way that
comparative law, in its applied form, is of practical value to members
of the bench and bar.
"7 Ewick et al., supra note 11, at 1.

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Bluebook 21st ed.

ALWD 7th ed.

APA 7th ed.

Chicago 17th ed.

McGill Guide 9th ed.

AGLC 4th ed.

MLA 9th ed.

OSCOLA 4th ed.

Comparative legal research, the cross-national study of law and

* Assistant Professor of Law, Thomas M. Cooley Law School. B.S.F.S. 1988,

validation" of theories about social response to legal rules,

research is the growing body of work on judicial reform in

I. APPLIED COMPARATIVE LAW

The view that empirical inquiry should form the basis of

New Legal Realism?, 2005 WIS. L. REV. 335.

A. The Uses of ComparativeLaw

Some comparatists distinguish comparative law as a "scholarly"

sharp distinction between scholarship and practice is unnecessary and

KOTZ, supra note 1, at 11 ("theoretical-descriptive" form of comparative law

Scholars have long recognized one potentially relevant applica-

comparative research should drive the engine of reform and inform

testing against practical knowhow and experience."29 Academic legal

B. Empirical ComparativeLegal Research

To better serve this purpose, to be of practical value to policy

Although most legal scholarship is grounded to some extent in the

The applied comparative law research program emphasizes: (1)

It is usually explanatory, not purely descriptive, although it

The critical components of this enterprise are to develop a theoretical

'9 See generally RETHINKING SOCIAL INQUIRY: DIVERSE TooLs, SHARED

The primary goal of applied comparative legal research is explana-

"See Widner, ComparativeLaw, supra note 15, at 744.

ships being considered and in identifying the factors that impact

4'See Chodosh, Comparing Comparisons, supra note 19, at 1052-53; Widner,

We ought to be gathering empirical data, we ought to be con-

Despite the recognized value of and need for applied comparative

II. JUDICIAL REFORM

Over the past decade, a number of countries have embarked on

particularly true of developing countries in Latin America, Southeast

institutions like the World Bank;6' private non-governmental

development. For countries pursuing economic liberalization, the

INSTITUTIONS FORMARKETS (2002); SHAHID JAvED BURKI & GULLERMo E.

dollars, programs to promote the rule of law have been dis-

In industrial countries it is widely recognized that judicial

Consensus Programsand PerpetuallyDisappointingResults, 52 DEPAuL L. REV.

Economy of Diverse InstitutionalPatternsand Reformers' Responses, in BEYOND

In a telling assessment of the Canadian experience with legal and

GOVERNANCE: EMPIRICAL EVIDENCE FROM SIXTEEN DEVELOPING COUNTRIES 165

To what extent is or can support for judicial infrastructure be

Legal and judicial reformers should be able to take advantage of the

III. JUDICIAL REFORM IN TANZANIA

Tanzania, one of the poorest nations in the world, is among the

MURRELL, DEMAND AND SUPPLY IN ROMANIAN COMMERCIAL COURTS:

legal and judicial reform program, Tanzania established a new

structure and operation of Tanzania's Commercial Court, identifies

The assessment of the Commercial Court's performance was not

88 But see WORLD BANK, DOING BUSINESS 2004: UNDERSTANDING REGULATION

other similarly-situated countries attempting judicial or other legal