L. M. Friedman, Litigation and Society

Litigation and Society Author(s): Lawrence M. Friedman Reviewed work(s): Source: Annual Review of Sociology, Vol. 15 (1989), pp. 17-29 Published by: Annual Reviews Stable URL: http://www.jstor.org/stable/2083216 . Accessed: 21/09/2012 04:27 Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp . JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org. . Annual Reviews is collaborating with JSTOR to digitize, preserve and extend access to Annual Review of Sociology. http://www.jstor.org Annu. Rev. Sociol. 1989. 15:17-29 Copyright ? 1989 by Annual Reviews Inc. All rights reserved LITIGATION AND SOCIETY Lawrence M. Friedman Law School, Stanford University, Stanford, CA 94305-8610 Abstract Litigation, in ordinary speech, refers to actions contested in court; this involves a claim, a dispute or conflict, and the use of a specific institution, the court, to resolve the conflict or dispute. In the past most legal research has consisted of analysis of doctrine and theory about doctrine. But litigation is an important phenomenon in its own right and research lately has shown this. This chapter aims to sketch out a few major areas of research and theory and to add a few brief remarks about the significance of the work thus far. The topics covered include: dispute-centered and court-centered research; quantity of litigation and the so-called litigation explosion; and the impact of litigation on society. INTRODUCTION Only in the last decade or so has there been substantial research on litigation, or theorizing about the social meaning and impact of litigation, even among law and society scholars and those who identify themselves as sociologists of law. To be sure, legal scholarship in common law countries has always been obsessed with appellate litigation; but what jurists considered "research" consisted mostly of analysis of doctrine, and theory about doctrine, all quite formalistic and never quantitative or empirical. In other countries, legal scholars have had even less interest in conducting systematic research on litigation. For their part, social scientists have tended to neglect litigation as well. This was perhaps originally a reaction against the tendency of legal research to act as if the law was nothing but formal process. Sociology, then, took as its domain informal processes-law-related behavior that took place outside the courtroom setting. But litigation is an important phenomenon in its own right, and this has become very obvious in the last two generations. The school desegregation 17 0360-0572/89/08 15-0017$02.00 18 FRIEDMAN cases, and in general the activities of the United States Supreme Court under Earl Warren, suggested the potential for social change through litigation. More recently, the so-called "litigation explosion" (Galanter 1983) has led to speculation about the harmful social effects of litigation, real or imagined. The discussion is by no means confined to the United States, although the United States is usually seen as the worst offender. In one sense, to be sure, the large literature on courts, judges, juries, litigants, and the like, in sociology, criminology, legal history, political science, psychology, economics, and anthropology, is all relevant to the problem of litigation; but I work here with a somewhat narrower and more manageable concept of the field. My aim has been to sketch out a few major headings of research and theory, and to add a few brief remarks about the significance of the work thus far. We therefore ignore many of the cognate questions and fields of research-for example, the truly vast literature on the jury, and on the dynamics of jury deliberation and decision-making (for an overview, see Hans & Vidmar 1986). Litigation Defined No definition of litigation commands general agreement; indeed, most of the literature on courts makes no attempt to define litigation at all. Litigation, in ordinary speech, refers to actions contested in court. The core meaning thus implies three distinct elements: first, a claim, that is, an active attempt to attain some valued end; second, a dispute or conflict, in other words, resis- tance to the claim; and third, the use of a specific institution, the court, to resolve the conflict or dispute. This definition may seem banal, but there are subtle choices implicit in the formulation. The phrase "action contested in court" implies that the contest takes place inside the courtroom. But courts have other functions besides litigation. In the life cycle of many disputes, the final act of the drama, or its (apparent) resolution, takes place inside the courtroom; and yet the court stage is (arguably) not true litigation. For example, only a court can grant a divorce; and parties to a divorce are often in serious dispute over the division of property rights, support pay- ments, or custody of children. But the courtroom phase may range all the way from bitter and protracted battles to perfunctory and routine paper-shuffling. Indeed, in the typical case, the problems are worked out, usually with the help of lawyers, long before any of the actors appears before the judge. What is presented to her honor is a package of agreements already settled; she merely rubber-stamps these prior agreements. Under our definition, divorces of this type, though judicial statistics report them as "cases," are not litigation, because they are not contested in court. Since the case-loads of many trial courts are dominated, quantitatively, by completely uncontested divorces, to LITIGATION AND SOCIETY 19 consider such cases "litigation" would seriously distort the figures on litiga- tion rates. These cases, in the aggregate, may demand time and effort; but they do not seriously overburden the system as the more complex cases do, which are actually tried. Dispute-Centered and Court-Centered Research There are at least two distinct approaches to the study of litigation. Some scholars are primarily interested in disputes themselves, as a social phe- nomenon-their causes and cures. For them, litigation is only of interest as a phase in the life-cycle of disputes. Other scholars are primarily interested in courts as institutions. They are thus not directly concerned with conflicts and disputes that never reach the courts, except insofar as court decisions have an impact on such disputes, for example, by influencing the terms of settlements (see Ross 1970). Research on disputes suffers from the difficulties of defining and measuring disputes. Court statistics are, on the whole, quite poor; statistics on the population of disputes are worse, or non-existent. Although it is not easy to count defamation cases, for example, it is thoroughly impossible to measure the population of insults, or the population of disputes in society that arise out of insults. Sometimes there is data on the number of potential disputes-for example, data on serious railroad or automobile accidents-which give a kind of base-line for measuring possible lawsuits (see Friedman 1987, Munger 1987). Victim studies in recent years have provided base-line data for measur- ing the relationship between criminal acts and the number of arrests, charges, and cases (see Hindelang et al 1976). But these are exceptions. In recent years, a start has been made in studying the life-cycle of disputes, from their beginnings in the social field, to the point where a few of them "ripen" into lawsuits. The most ambitious attempt has been the Civil Litiga- tion Research Project (CLRP) at the University of Wisconsin. CLRP used the dispute as its unit of analysis (Trubek 1980-1981), in order to link the work of courts with the social context out of which disputes arise. The researchers did not confine themselves to disputes that ended up in court. They also drew a random sample of households and organizations to identify disputes that never got as far as court (Kritzer 1980-1981). Dispute-centered research asks why some situations produce disputes, and what happens to these disputes. What are the switching devices (so to speak) that shunt some disputes onto a court track, while others disappear or are diverted into alternative modes of resolution? Logically prior to the study of litigation, then, is study of the "transformation" of "injurious experiences" into legal claims. Felstiner et al (1980-1981; see also Fitzgerald & Dickins 1980-1981) describe a three-stage process of transformation. First, in- 20 FRIEDMAN dividuals perceive themselves as undergoing an "injurious experience" (they call this "naming"); next, the experience becomes a grievance ("blaming"); the third stage is "claiming," that is, the process of turning to the responsible party and asserting a demand for remedial action. At this point, a dispute has emerged, which, if not settled or arranged beforehand, may end up as actual litigation. One theoretical and empirical issue is why such "transformations" occur or do no occur. Clusters of factors can be isolated. One cluster is substantive (based on "rules of law" or "doctrines"). In Paraguay, the law does not allow absolute divorce; this is a substantive barrier, which keeps many kinds of marital dispute out of court. Other factors are institutional or procedural: the expense of lawsuits, or the steps that make litigation simple or difficult, whether courts are accessible or not, formal or informal, and so on. These various structural and procedural factors are often quite obvious. It is more difficult to demonstrate or assess cultural factors. It is, however, commonly assumed that culture (and personality) factors are critical in ex- plaining why (for example) the Japanese seem to litigate very little, and Americans a great deal. That is, "litigiousness" is posited as a specific cultural trait, a matter of custom, tradition, and way of life; the Japanese (it is said) prefer compromise and interpersonal arrangements; Americans are in- dividualists-battlers and sticklers for rights. Needless to say, there is very little hard research on such issues. In fact, it is not clear whether cultural factors best explain varying rates of litigation, or whether structural and substantive barriers should be invoked (see Upham 1987, Fitzgerald 1983). Most probably, litigation rates are the product of multiple factors-including the sheer difficulty and expense of litigation. Doctrinal and structural barriers, after all, are not generated out of thin air, but are durable or permanent patterns formed out of "softer" cultural phenomena. In one sense it is misleading to talk about "barriers" to litigation; this assumes that it is normal or natural for a dispute to end up in litigation. In fact, most people do not pursue their grievances at all. Claims-consciousness is related to class-better educated, more articulate people are more apt to insist on their rights (Caplovitz 1963, Best & Andreasen 1977). Even when griev- ances mature into "disputes," they do not necessarily become lawsuits. Most disputes disappear or are settled long before the trial stage, and this has apparently been true for at least a century (see Daniels 1985, Friedman & Percival 1976). From one theoretical standpoint, indeed, every trial is a mistake in calculation. It is almost always in the interests of the parties to settle; trials are socially disruptive, and people in continuing or community relationships tend to avoid them (Macaulay 1963, Engel 1984, Ellickson 1986). Moreover, trials are costly affairs, and in civil disputes, there is usually a zone of settlement or range of values at which both parties are better LITIGATION AND SOCIETY 21 off if they settle (see Ross 1970). Trials result when parties seriously misjudge the likely outcome of a trial or insist on litigation in order to establish some principle. The dispute that ends up in court has been transformed in another way, too. It has been, necessarily, translated from raw, lay norms and descriptions, into legal categories; it has been encoded and reworked to fit the traditions and the habits of internal legal culture (on this concept, see Friedman 1975:223). In the process, the dispute itself has been subtly or not so subtly altered. Lawyers, then, who do the translation in this and most modern societies, exercise control over disputes and their outcomes by virtue of their command of the language and the traditions which the legal system legitimates and to which it assigns a privileged place. There has been, unfortunately, very little systematic work on this process of translation and transformation (but see Mather & Yngvesson 1980-1981). It is clear, however, that the practice can be more or less "participatory" or autocratic; and that the style of lawyering makes a difference to the outcome of cases (see Rosenthal 1974). Whether disputes end up in court also depends on the definition of a court (see Shapiro 1981). Institutions called "courts" in this society perform tasks other than dispute-settlement. They have administrative responsibilities, for example-probating estates, or formalizing name changes. On the other hand, many institutions imitate the courts, or use courtlike processes, without the name or the official status. To begin with, in some societies there are "tribunals" which exist apart from the formal court system. In many societies, too, arbitration is a common process, substituting for "regular" judicial progress. Arbitration differs from "litigation" chiefly in that the arbitrator is only a temporary judge-usually selected by the parties-rather than a state official. The spread of "due- process" within institutions, government agencies, and other large organiza- tions, in addition, has meant that internal dispute-settling or grievance pro- cedures exist throughout society, institutionally very much like courts; in some instances, the parties may even use lawyers to help them prepare or argue their "case" (Macaulay 1987). The court system in the United States, and in most modern nations, is exceedingly complex. There are civil and criminal courts, sometimes run as separate institutions; petty courts, trial courts, and intermediate appellate courts (in most states), and state supreme courts (see Kagan et al 1978); there is also the three-tier system of federal courts (see, for example, Howard 1981). Each level can be a separate object of study. There are also specialized courts-in Europe, labor courts and administrative courts are quite prominent; and there are supra-national courts, in the European Economic Community, for example. In each society, courts occupy a specific position in the structure of government and have a distinct role in and impact on society. There is also 22 FRIEDMAN a great deal of interest in "alternative dispute resolution"-modes of dealing with conflict and dispute that avoid the formal (state-run) courts. Arbitration has already been mentioned. "ADR" was not only a field of research; in the 1970s it became something of a social movement-a reaction against the formal court system, in the interests of efficiency and greater access to justice, especially for the poor (see Abel 1982). Court Centered Research: The Quantity of Litigation and the So-Called Litigation Explosion It is commonly assumed that the United States is a highly litigious society and that litigation rates have been rising rapidly in recent periods. This rough hypothesis appears in popular literature, in the press, and in the speeches of judges and politicians. It is also assumed that the effect of the explosion of lawsuits, especially tort lawsuits, is harmful to the economy, if not to the very make-up of society (Rabin 1988). Fear of litigation stifles innovation, and leads to conservative, "defensive" strategies in business and medicine; munic- ipal liability has led to the closing of playgrounds, the cancelling of programs, and even to urban bankauptcy. But these effects are difficult to demonstrate empirically (see below). A number of studies have tried to measure American litigation rates over fairly long timespans (often a century or more). These studies have, on the whole, failed to document the "litigation explosion." Thus McIntosh (1981) studied courts in St. Louis, Missouri, between 1820 and 1977. Litigation rates dropped in the last half of the nineteenth century, then rose and fell and rose in the twentieth century, but hardly dramatically. The "litigation rate" in the 1970s was higher than it had been a century before; but 45% of McIntosh's cases were family law cases, almost all of them uncontested divorces. "Litiga- tion" in the sense of actual contests in courts in fact was perhaps lower in proportion to population in the 1970s than in the 1850s (see also Friedman & Percival 1976, Munger 1988). On the whole, those who have studied litiga- tion rates tend to agree that there are no signs in state courts of a quantitative explosion (for the literature, Galanter 1983; a dissenting note is Marvell 1987). Filings in federal court, however, are an exception; there is no question that the number of such cases has been increasing far faster than has population size (see Clark 1981). But the overwhelming majority of cases filed-over 90%-are filed in state courts. It is the state courts that handle almost all cases of family law, personal injury, and criminal justice, and the overwhelming bulk of ordinary commercial matters. No increase on the federal scale can be documented for state courts. Gifford & Nye (1987), examining recent data, found evidence that litigation rates in Florida were rising more rapidly than population rates. The Florida data, however, thus far seem exceptional. LITIGATION AND SOCIETY 23 The federal data do point toward a more interesting and promising issue: changes in the type of case over time. The increase in federal filings is not difficult to understand, in light of the increased role of the central government in economy and society, relative to the states. It reflects the dominance of federal regulatory and welfare law; it also reflects the activism of the federal courts-and, what is often forgotten, the activism of Congress. There are thousands of civil rights cases in federal courts; 50 years ago there were virtually none. Though some of these cases invoke constitutional rights, or post-Civil War legislation, the vast bulk of them arise under the Civil Rights statutes passed by Congress in the 1960s. Unfortunately, despite the enor- mous literature on civil rights, empirical research on civil rights litigation is rare (but see Eisenberg 1982). The federal courts, too, are the home of the preponderance of large, complex "public law" cases (Chayes 1976), which contrast so strongly with traditional private litigation. In these "public law" cases the issues go far beyond the parties, and the court frames broad remedies and maintains continuing jurisdiction. The major school desegregation cases are examples; or the long struggles to reform prison systems through litigation. There have been examples of "public law" cases in the United States since the nineteenth century; but there is no question that cases such as Chayes describes are more frequent today than before. Unfortunately, there is no agreed-on definition to mark off the boundaries of this case-type,