Framework for Analysis of Legal Mobilization: A Decision-Making Model

Frances Kahn Zemans

doi:10.1111/j.1747-4469.1982.tb00476.x

1 It should be noted that concern with access to justice is not unique to the contemporary period. The codification of 1810–1850 was intended to limit the power of judges and make law more open to the lay public and thereby “promote the broad distribution of access to the legal system.”Tushnet, Mark V., Commentary, Perspectives on the Development of American Law: A Critical Review of Friedman's “A History of American Law,” 1977 Wis. L. Rev. 81, 106. For a discussion of the role of “legal access for ordinary people” in the emergence of small claims courts, see Steele, Eric H., The Historical Context of Small Claims Courts, 1981 A.B.F. Res. J. 293, 295.Google Scholar

2 For a sharply critical view of this approach see John Griffiths, A Comment on Research into “Legal Needs,”in Erhard Blankenburg, ed., Innovations in the Legal Services 29 (Cambridge, Mass.: Oelgeschlager, Gunn & Hain, 1980). Not all the research using the legal needs terminology necessarily suffers from these problems. Barbara A. Curran, in The Legal Needs of the Public: The Final Report of a National Survey (Chicago: American Bar Foundation, 1977), avoids some of these pitfalls by concentrating on the actual use of legal services; this study also does not sever the poor from the rest of the population and so avoids what has been the greatest difficulty in much of the research effort. A discussion of this problem follows in the text.Google Scholar

3 Carlin, Jerome E. & Howard, Jan, Legal Representation and Class Justice, 12 U.C.L.A. L. Rev. 381 (1965).Google Scholar

4 Jerome E. Carlin, Jan Howard, & Sheldon L. Messinger, Civil Justice and the Poor: Issues for Sociological Research (New York: Russell Sage Foundation, 1967).Google Scholar

5 This perspective is not limited to the United States. See, e.g., Kees Schuyt, Explaining the Limited Use of Legal Services by the Poor: A Three Dimensional View, paper presented at a Conference on the Report of the Royal Commission on Legal Services, Cardiff, Wales, 1980. See also 1–3 Mauro Cappelletti, ed., Access to Justice (Alphenaandenrijn, Neth.: Sitjhoff & Noordhoff; Milan: Dott. A. Giuffre Editore, 1978, 1979): vol. 1 of the series is Mauro Cappelletti & Bryant Garth, eds., A World Survey, bks. 1 & 2 (1978); vol. 2, Mauro Cappelletti & John Weisner, eds., Promising Institutions, bks. 1 & 2 (1978); vol. 3, Mauro Cappelletti & Bryant Garth, eds., Emerging Issues and Perspectives (1979).Google Scholar

6 See, e.g., Roger Bryant Hunting & Gloria S. Neuwirth, Who Sues in New York City? (New York: Columbia University Press, 1962); Herbert Jacob, Judicial and Political Efficacy of Litigants: A Preliminary Analysis, in Joel Grossman & Joseph Tanenhaus, Frontiers of Judicial Research (New York: John Wiley & Sons, 1969); Curran, supra note 2; M. P. Baumgartner, Law and the Middle Class: Evidence from a Suburban Town 2–3, paper presented at the Annual Meeting of the Law and Society Association, Madison, Wis., 1980; Hazel Genn, Who Claims Compensation: Factors Associated with Claiming and Obtaining Damages, in D. Harris et al., eds., Compensation and Support for Illness and Injury (Oxford University Press, forthcoming).Google Scholar

7 See Ivan Illich's Disabling Professions for a discussion of this point in relation to professions more generally. Ivan Illich et al., Disabling Professions (London: Marion Boyars, 1977).CrossRef Google Scholar

8 Cahn, Edgar S. & Cahn, Jean C., The War on Poverty: A Civilian Perspective, 73 Yale L.J. 1317 (1964).Google Scholar

9 Cahn, Edgar S. & Cahn, Jean Camper, Power to the People or the Profession?—The Public Interest in Public Interest Law, 79 Yale L.J. 1005 (1970).Google Scholar

10 Id. at 1040.Google Scholar

11 Id. at 1021. The Cahns go on to suggest that the process for expanding this supply must begin with early legal socialization in grade school. Such legal socialization is an important variable in the model 1 will be presenting.Google Scholar

12 1967 Detroit Area Study: Citizens in Search of Justice (Leon Mayhew & A. J. Reiss, Jr., principal investigators, University of Michigan (Inter-University Consortium for Political and Social Research, 1 CPSR 7406) (2d ed 1977)). Mayhew, Leon, & Reiss, Albert J. Jr., The Social Organization of Legal Contacts, 34 Am. Soc. Rev. 309 (1969).Google Scholar

13 Mayhew, Leon H., Institutions of Representation: Civil Justice and the Public, 9 Law & Soc'y Rev. 401 (1975).Google Scholar

14 Quoting F. Raymond Marks, Jr., The Legal Needs of the Poor: A Critical Analysis 10 (Chicago: American Bar Foundation, 1971).Google Scholar

15 Mayhew, supra note 13, at 426.Google Scholar

16 Id. at 411.Google Scholar

17 Barbara A. Curran & Katherine J. Rosich, Data Manual for the Survey of the Legal Needs of the Public 284 (Chicago: American Bar Foundation, 1980).Google Scholar

18 Id. at 275.Google Scholar

19 As part of the access to justice movement the dispute-processing literature has argued that technologically complex, rich societies have fewer and less efficient forums for handling disputes than do technologically simple, poor societies. Felstiner, William L. F., Influences of Social Organization on Dispute Processing, 9 Law & Soc'y Rev. 63 (1974).Google Scholar

20 Jack Ladinsky & Charles Susmilch, The Processing of Consumer Disputes in a Metropolitan Setting, paper presented at the Annual Meeting of the Midwest Political Science Association, Chicago, April 1980.Google Scholar

21 In a later piece Landinsky and Susmilch report that a full 75 percent of consumers with problems take their grievances directly to the providers. See Jack Ladinsky & Charles Susmilch, Community Factors in the Brokerage of Consumer Product and Service Problems 16, paper presented at the Annual Meeting of the Law and Society Association, Toronto, June 4, 1982.Google Scholar

22 Best and Andreasen's study of consumer complaints laments the failure of many consumers to complain about perceived problems with purchases and blames the lack of proper structures and the limited access to them for this seeming failure. Yet their own data actually support a rational actor hypothesis. For they find that the cost of the purchase and the cost of the problem affect the rate of voicing directly and significantly. That is to say, where the costs are sufficiently high to consumers, they will, as one might expect, be more willing to invest the effort to right the perceived wrong. See Best, Arthur, & Andreasen, Alan R., Consumer Response to Unsatisfactory Purchases: A Study of Perceiving Defects, Voicing Complaints, and Obtaining Redress, 11 Law& Soc'y Rev. 701, 716 table 8 (1977). It has been noted that the methodology of the Best and Andreasen study was ideologically biased toward a consumer perspective. Ross, H. Laurence, & Littlefield, Neil O., Complaint as a Problem-Solving Mechanism, 12 Law & Soc'y Rev. 199 (1978).Google Scholar

23 K. N. Llewellyn & E. Adamson Hoebel, The Cheyenne Way: Conflict and Case Law in Primitive Jurisprudence 26 (Norman: University of Oklahoma Press, 1941).Google Scholar

24 Weber relates the same concept in a characteristically complex and highly specified formulation:. Sociologically, the statement that someone has a right by virtue of the legal order of the state thus normally means the following: He has a chance, factually guaranteed to him by the consensually accepted interpretation of a legal norm, of invoking in favor of his ideal or material interests the aid of a “coercive apparatus” which is in special readiness for this purpose. This aid consists, at least normally, in the readiness of certain persons to come to his support in the event that they are approached in the proper way, and that it is shown that the recourse to such aid is actually guaranteed to him by a “legal norm.”. Max Rheinstein, ed., Max Weber on Law in Economy and Society 15 (Cambridge: Harvard University Press, 1966) (from Max Weber, Wirtschaft und Gesellschaft 368–85 (Tubingen: Verlag von J. C. B. Mohr, 1925)).Google Scholar

25 As a cultural phenomenon the case-by-case approach is not limited to the public legal system. In both rule enforcement and dispute processing in private organizations the same general procedure is followed. For an example of this phenomenon see Steele and Nimmer's study of self-regulation by the bar. Steele, Eric H. & Nimmer, Raymond T., Lawyers, Clients, and Professional Regulation, 1976 A.B.F. Res. J. 917.Google Scholar

26 A case in point is a recent publication, divided into six parts with one devoted to “Participants in the Judicial Process.” See Sidney Ulmer, ed., Courts, Law, and Judicial Processes (New York: Free Press, 1981). In this book the only consideration given to citizens as participants is in a subsection on the American jury, an institution in declining use even among those cases that actually get to trial. For those that do not get to trial, and for the vast bulk of legal activity occurring outside the courts, the jury is a factor only as its potential involvement may affect negotiations; as a forum for citizen participation it is irrelevant. Nader and Shugart's “Old Solutions for Old Problems” provides a good example of a social change perspective that not so much neglects the individual case-by-case process as it does reject it for failing to deal with underlying inequities. Although Nader and Shugart concentrate on consumer complaints, their work is representative of this genre. Curiously, in rejecting the individual case approach they call for a government agency in the consumer area. However, they fail to recognize that government agencies are themselves subject to the same limitations in their reliance on individual complainants for the initiation of cases. Laura Nader & Christopher Shugart, Old Solutions for Old Problems, in Laura Nader, No Access to Law (New York: Academic Press, 1980). For descriptions of how two government offices created to prosecute fraud evolved into dispute-processing mechanisms by virtue of their responsiveness to citizen demands, see Steele, Eric H., Fraud, Dispute, and the Consumer: Responding to Consumer Complaints, 123 U. Pa. L. Rev. 1107 (1975); Zemans, Frances Kahn, Coercion to Restitution: Criminal Processing of Civil Disputes, 2 Law & Pol'y Q. 81 (1980).Google Scholar

27 Cahn & Cahn, supra note 9, at 1008.Google Scholar

28 Individual action in the legal system is itself highly structured by judicial rules including particularly those dealing with standing to sue.Google Scholar

29 Llewellyn, Karl N., A Realistic Jurisprudence—The Next Step, 30 Colum. L. Rev. 431, 452 (1930). Roscoe Pound made the same point in 1912 in urging legal scholars to pay more attention to making rules effective. “We have studied the making of law sedulously. It seems to have been assumed that, when made, law will enforce itself…. But the life of the law is in its enforcement.”Pound, Roscoe, The Scope and Purpose of Sociological Jurisprudence, pt. 3, 25 Harv. L. Rev. 489, 514 (1912).Google Scholar

30 Harry W. Jones, The Efficacy of Law 21 (Evanston, Ill.: Northwestern University Press, 1969). While this is most obviously true in private law, I have argued elsewhere that the public/private dichotomy in this regard is more confusing than clarifying. See Frances Kahn Zemans, Legal Mobilization: A Special Case of Political Participation, paper presented at the Annual Meeting of the American Political Science Association, Washington, D.C., 1980, for a discussion of the dependence of both the criminal justice system and regulatory agencies on the willingness of injured complainants to initiate cases. Although he does not develop the implications of his statement, Lawrence Friedman does acknowledge the similarity between the civil and criminal law with respect to the role of citizen as gatekeeper: “Criminal law, then, is not so very different from contract and tort law whose rules lie sleeping until a private citizen brings them to life.” Lawrence M. Friedman, The Legal System: A Social Science Perspective 110 (New York: Russell Sage Foundation, 1975).Google Scholar

31 Philip Selznick, Law, Society, and Industrial Justice (New York: Russell Sage Foundation, 1969).Google Scholar

32 The importance of litigant demand to agenda setting in the courts has been documented. See, e.g., Woodford Howard, J. Jr., & Goldman, Jerry, The Variety of Litigant Demand in Three United States Courts of Appeals, 47 Geo. Wash. L. Rev. 223 (1978); Gerhard Casper & Richard Posner, The Workload of the Supreme Court (Chicago: American Bar Foundation, 1976), for data on this point for U.S. Courts of Appeal and the U.S. Supreme Court, respectively. There has, however, been a failure to recognize the extent to which the implementation of public policy more generally depends upon the initiative of potentially affected parties.Google Scholar

33 Herbert Jacob, Related Party Disputes in Criminal Courts: Some Data and Speculations About Alternative Functions, in Peter F. Nardulli, ed., The Study of Criminal Courts: Political Perspectives (Cambridge, Mass.: Ballinger Publishing Co., 1979).Google Scholar

34 Crock, Stan, Companies Are Snitching to Feds About Actions of Their Rivals, Wall St. J., June 25, 1980, at 25, col. 4.Google Scholar

35 In practice there are numerous examples of incidents that are not transformed to fit the written law but are handled “legally” nonetheless. A case in point can be found in the Pro Se Small Claims Court in Cook County, Illinois, which handles minor disputes of individual plaintiffs acting on their own. In addition to disregarding many of the formalities of civil procedure, that court frequently takes judicial cognizance of disputes that do not seem to have a basis in law. For other examples see Macaulay, Stewart, Lawyers and Consumer Protection Laws, Law & Soc'y Rev. 115 (1979); Zemans, supra note 26.Google Scholar

36 Aubert, Vilhelm, Competition and Dissensus: Two Types of Conflict and of Conflict Resolution, 7 J. Conflict Resolution 26 (1963); Romoyuki Ohta & Tadao Hozumi, Compromise in the Course of Litigation, trans. Peter Figor, in 6 Law in Japan 97 (1973).Google Scholar

37 This appears to be so even though Western legal systems in general, and the American legal system in particular, have been frequently characterized as highly rights conscious, especially in contrast to Eastern legal systems. See, e.g., Takeyoshi Kawashima, Dispute Resolution in Contemporary Japan, in Arthur Taylor von Mehren, Law in Japan: The Legal Order in a Changing Society (Cambridge: Harvard University Press, 1963); Pyong-Choon Hahm, The Decision Process in Korea, in Glendon Schubert & David J. Danelski, eds., Comparative Judicial Behavior (New York: Oxford University Press, 1969).Google Scholar

38 Mayhew, supra note 13, at 413.Google Scholar

39 Curran, supra note 2, at 135, 141.CrossRef Google Scholar

40 Id. at 139, 141.Google Scholar

41 Steele, supra note 26, at 1138.Google Scholar

42 Zemans, supra note 26.Google Scholar

43 Abel, Richard L., From the Editor, 11 Law & Soc'y Rev. 611, 615 (1977)Google Scholar

44 As if in recognition of the importance of benefits as incentives to citizen participation in law enforcement, there has been an exponential increase in the use of restitution in the criminal justice system. For a detailed and comprehensive discussion of the state of the law regarding restitution, see Alan T. Harland, Offenders, Victims, and Monetary Remedies in Criminal Couts, paper presented at the Annual Meeting of the Law and Society Association, Madison, Wis., June 1980. For an assessment of empirical evidence, see Joe Hudson & Steve Chesny, Research on Restitution: A Review and Assessment, in Burt Galaway & Joe Hudson, eds., Offender Restitution in Theory and Action (Lexington, Mass.: Lexington Books, 1978).Google Scholar

45 That there are severe exogenous limits on these decisions is not to be ignored. But it should be noted that the proposed decision-making model is explanatory rather than normative or prescriptive. An acknowledgment of resource limits on participation in the legal system is not necessarily an endorsement. As the text has made clear, however, neither does such acknowledgment imply that resource theory provides a sufficient explanation for the observable pattern of legal mobilization. A major limitation of a legal system structured to respond to initiation by those whose rights are at issue is that only those incidents easily discernible to the affected party will be subject to the arm of the law. See, e.g., Ross Cranston, Regulating Business: Law and Consumer Agencies (Oxford Socio-Legal Studies Series) (London: Macmillan Press, 1979), for a discussion of this point regarding consumer protection.Google Scholar

46 For data on the progression of cases from arrest to disposition in the criminal system see, e.g., James Eisenstein & Herbert Jacob, Felony Justice: An Organizational Analysis of Criminal Courts (Boston: Little, Brown & Co., 1977); for civil cases see Hans Zeisel, Harry Kalven, Jr., & Bernard Buchholz, Delay in the Court (Boston: Little, Brown & Co., 1959).Google Scholar

47 H. Laurence Ross, Settled Out of Court: The Social Process of Insurance Claims Adjustments (Chicago: Aldine Publishing Co., 1970).Google Scholar

48 There is in fact a substantial economic literature that presents predictive models of choice between settlement and litigation. See, e.g., Neil K. Komesar, Toward an Economic Theory of Conflict Choice, Disputes Processing Research Program Working Paper 1979–2 (Madison: University of Wisconsin-Madison Law School, 1979).Google Scholar

49 Although with more research it would be possible, no effort is made here to develop a formal mathematical decision-making model. The goal is rather to lay out a framework for analysis based on available research evidence.Google Scholar

50 To a large extent the sequence represented in the model is endorsed by the legal system and professionals who serve it. For in most cases a complainant is encouraged to seek an accommodation with an adversary and/or pursue alternate remedies. In some areas of law there is even a requirement to exhaust other remedies before seeking redress in the courts. Although the courts have carved out numerous exceptions, the standard rule in administrative law, for example, is that judicial action will be stayed until administrative remedies have been exhausted. See, e.g., Exhaustion of Administrative Remedies, in Kenneth Culp Davis, Administrative Law Treatise 56 (St. Paul, Minn.: West Publishing Co., 1958). Courts also defer to the internal procedures of private associations. See Chafee, Zechariah Jr., The Internal Affairs of Associations Not for Profit, 43 Harv. L. Rev. 993 (1930). Courts also encourage extrajudicial settlement of claims. See Zeisel et al., supra note 46; Ross, supra note 47.Google Scholar

51 For an overview of utilization behavior studies, see McKinlay, John B., Some Approaches and Problems in the Study of the Use of Services—An Overview, 13 J. Health & Soc. Behav. 115 (1972).Google Scholar

52 Although the discussion will be limited to individual decision makers, there is nothing in the model that so restricts its applicability. The single actor is, however, the easiest to consider. Furthermore, this focus is consistent with the important point that individual actors play a central role in the mobilization of the law in American society.Google Scholar

53 The importance of problem perception to the help-seeking process has long been recognized in the medical literature. See, e.g., Kadushin, Charles, Individual Decisions to Undertake Psychotherapy, 3 Admin. Sci. Q. 379 (195859); David Landy, Problems of the Person Seeking Help in Our Culture, in Mayer N. Zald, ed., Social Welfare Institutions (New York: John Wiley & Sons, 1965).Google Scholar

54 The relevance of these variables to perceptions of crimes and decisions to notify the police or prosecutor is discussed in Frances Kahn Zemans, Dispute Processing: The Medium and the Message of Criminal Justice, in Nardulli, ed., supra note 33.Google Scholar

55 McKinlay, supra note 51.Google Scholar

56 The importance of salience, frequency, and duration of symptoms has been similarly identified in the medical help-seeking literature. See, e.g., David Mechanic, Medical Sociology: A Selective View 130–31 (New York: Free Press, 1968).Google Scholar

57 Zborowski, Mark, Cultural Components in Response to Pain, 8 J. Soc. Issues 16 (1952).Google Scholar

58 Avoidance is similar but not identical to the concept of exit (the latter requiring a total severance of a relationship) as discussed by Hirshman in his “exit, voice, and loyalty” scheme. Voice, defined as “any attempt at all to change, rather than to escape from, an objectionable state of affairs,” is the equivalent of taking action in the model presented here. Albert O. Hirshman, Exit, Voice, and Loyalty: Responses to Decline in Firms, Organizations, and States (Cambridge: Harvard University Press, 1970). For an inquiry into the relationship between social structure and the choice among these alternatives see Felstiner, supra note 19.Google Scholar

59 Bohannan, Paul, The Differing Realms of the Law: The Ethnography of Law, 67 Am. Anthropologist 33 (1965).Google Scholar

60 Diamond, Stanley, The Rule of Law Versus the Order of Custom, 38 Soc. Res. 42 (1971).Google Scholar

61 Judge Learned Hand made a similar observation about the protection of liberty:. Liberty lies in the hearts of men and women; when it dies there, no constitution, no laws, no court can save it; no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it. Learned Hand, The Spirit of Liberty 190 (New York: Alfred A. Knopf, 1954).Google Scholar

62 See Andenaes, Johannes, The General Preventive Effects of Punishment, 114 U. Pa. L. Rev. 949 (1966), for a discussion of this point.Google Scholar

63 This of course assumes some knowledge of the law, which itself may be limited by the same demographic and perceptual independent variables that affect the decision to take action. In addition the substantive and procedural clarity of the law is a factor in useful knowledge and therefore is important to the assertion of legal rights; Mayhew refers to this as specification. Mayhew, supra note 13, at 410. The legal impact literature has also consistently cited the clarity of an articulated policy and its communication to relevant actors as important variables in predicting its effects. See, e.g., Levine, James P., Methodological Concerns in Studying Supreme Court Efficacy, 4 Law & Soc'y Rev. 583 (1970); Stephen L. Wasby, The Impact of the United States Supreme Court: Some Perspectives (Homewood, Ill.: Dorsey Press, 1970).Google Scholar

64 Flanagan, William G., Debtors File for Bankruptcy at a Record Rate, Spurred by New Code, Recession, Tight Credit, Wall St. J., June 30, 1980, at 4, col. 1.Google Scholar

65 Still the avoidance alternative (what the credit industry calls “skip-outs”—people who move without notice), as always, continues to account for greater losses to the credit industry, according to a spokesman for the National Consumer Finance Association. Id. The choice to “skip out” rather than proceed into bankruptcy even with substantial exemptions is of course also influenced by the cost variable.Google Scholar

66 This mention of cost as a factor in the impact of social norms does not minimize the importance of cost as an analytically distinct variable. It does, however, indicate the interaction among these variables in practice.Google Scholar

67 Hunting & Neuwirth, supra note 6; Zeisel et al., supra note 46.Google Scholar

68 Stephen Daniels, Civil Litigation in Illinois Trial Courts: An Empirical Analysis, paper presented at the Annual Meeting of the Midwest Political Science Association, Chicago, 1980.Google Scholar

69 A study of delay in civil court, for example, found evidence that local legal culture was the predominant explanatory variable in the pace of civil litigation. Despite important differences in caseload and jurisdiction, state and federal courts in the same locations had similar paces of litigation. Church, Thomas Jr., et al., Justice Delayed: The Pace of Litigation in Urban Trial Courts, 2 State Ct. J. 3, 41, 45 table 7 (Fall 1978). For a broad-ranging discussion of the topic see Friedman, supra note 30, esp. ch. 7, On Legal Culture.Google Scholar

70 Macaulay, Stewart, Non-contractual Relations in Business: A Preliminary Study, 28 Am. Soc. Rev. 55, 61 (1963). The examples cited in the text have assumed that all those involved in a given situation are members of the same group and share the same social norms. In heterogeneous modern American society that is often not the case. In general, group norms would be expected to support a more active legalistic response against outsiders than against group members.Google Scholar

71 Zola, Irving Kenneth, Culture and Symptoms—An Analysis of Patients' Presenting Complaints, 31 Am. Soc. Rev. 615 (1966).Google Scholar

72 Hunting & Neuwirth, supra note 6, at 65–66; Curran supra note 2, at 203.Google Scholar

73 For purposes of discussion the potential actor has been described as a member of only one reference group relevant to an issue at hand. The reality is of course far more complex. For at any point in time an individual may identify with many different groups, any of whose norms may be potentially appropriate standards of behavior. In fact, for the individual decision maker considering action for redress, a conflict in norms may be as effective an inhibitor to action as norms that directly dictate inaction.Google Scholar

74 Philippe Nonet, Administrative Justice: Advocacy and Change in a Government Agency 8 (New York: Russell Sage Foundation, 1969).Google Scholar

75 Lawrence M. Friedman, The Idea of Right as a Social and Legal Concept, in June Louin Tapp & Felice J. Levine, eds., Law, Justice, and the Individual in Society: Psychological and Legal Issues 69, 70 (New York: Holt, Rinehart & Winston, 1977).Google Scholar

76 Socialization has been defined as the “developmental process through which persons acquire societal orientations and behavior patterns” (June L. Tapp, Cross-National Interview Data, in Leigh Minturn & June L. Tapp, Authority, Rules and Aggression: A Cross-National Study of Children's Judgments of the Justice of Aggressive Confrontations, pt. II, at 1 (Washington, D.C.: United States Department of Health, Education, and Welfare, 1970)). Legal socialization is simply the same concept applied to law and the legal system. For various perspectives on socialization see essays in John A. Clausen, ed., Socialization and Society (Boston: Little, Brown & Co., 1968).Google Scholar

77 Judith V. Torney, Socialization of Attitudes Toward the Legal System, in Tapp & Levine, supra note 75.Google Scholar

78 See, e.g., Adelson, Joseph, & Beall, Lynette, Adolescent Perspectives on Law and Government, 4 Law & Soc'y Rev. 495 (1970); Rodgers, Harrell R. Jr., & Taylor, George, Pre-Adult Attitudes Toward Legal Compliance: Notes Toward a Theory, 51 Soc. Sci. Q. 539 (1970). For a similar perspective on political socialization more generally, see Robert D. Hess & Judith V. Torney, The Development of Political Attitudes in Children (Chicago: Aldine Publishing Co., 1967); David Easton & Jack Dennis, Children in the Political System: Origins of Political Legitimacy (New York: McGraw-Hill Book Co., 1969). For an extensive list of research in political socialization generally, including the legal system, see Jack Dennis, Political Socialization Research: A Bibliography (Sage Professional Paper American Politics, Series, 04–002, vol. 1) (Beverly Hills, Cal.: Sage Publications, 1973).Google Scholar

79 Felice J. Levine & June Louin Tapp, The Dialectic of Legal Socialization in Community and School, in Tapp & Levine, supra note 75, at 163.Google Scholar

80 Id. at 169.Google Scholar

81 See, e.g., Gabriel A. Almond & Sidney Verba, The Civic Culture: Political Attitudes and Democracy in Five Nations (Boston: Little, Brown & Co., 1965); Peter Bachrach, Interest, Participation, and Democratic Theory, in J. Roland Pennock & John W. Chapman, eds., Participation in Politics (Nomos 16, Yearbook of the American Society for Political and Legal Philosophy) (New York: Lieber-Atherton, 1975).Google Scholar

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83 American Bar Association, Special Committee on Youth Education for Citizenship, Teaching Young People About the Law (brochure) (Chicago: American Bar Association, n.d.).Google Scholar

84 See, e.g., American Bar Association, Special Committee on Youth Education for Citizenship, Directory of Law-related Education Projects, ed. Jane M. Koprowski (4th ed. Chicago: American Bar Association, 1982); id., Media: An Annotated Catalogue of Law-related Audio-visual Materials (Working Notes, No. 8), ed. Susan E. Davison (Chicago: American Bar Association, 1975); id., Gaming: An Annotated Catalogue of Law-related Games and Simulations (Working Notes, No. 9), ed. Susan E. Davison (Chicago: American Bar Association, 1975).Google Scholar

85 To the extent that individual initiative and the necessary role it plays in implementing the law is addressed at all, it tends to be confined to circumscribed examples such as consumer rights.Google Scholar

86 See Paul A. Freund, Law in the Schools, in Tapp & Levine, supra note 75, at 158, for a thoughtful discussion of the benefits of law teaching as part of the general educational curriculum.Google Scholar

87 The ABA Special Committee on Youth Education for Citizenship is not the only source of materials for law-related education. West Publishing Company produces a Law in Action Series for first to ninth graders (Linda Riekes & Sally Mahe Ackerly, Law in Action (St. Paul, Minn.: West Publishing Co., 1980)), and the Constitutional Rights Foundation and Scholastic Books publish a two-volume work called Living Law (New York: Scholastic Books, 1978). The program and publication that seems to come closest to education in the practical use of the law is from the National Street Law Institute of Georgetown University. In Street Law there is a direct acknowledgment that initiative is required to obtain the benefits of the law. The authors note that it is possible for tenants and consumers to get redress “especially when [they] are aware of their rights and take action to exercise those rights” (emphasis added). Lee P. Arbetmen, Edward T. McMahon, & Edward L. O'Brien, Street Law: A Course in Practical Law 3 (2d ed. St. Paul, Minn.: West Publishing Co., 1980).Google Scholar

88 See Thomas Ehrlich, Legal Pollution, N.Y. Times Mag., Feb. 8, 1976, § 6 at 17, for a much quoted critique of the use of the law. A more recent and somewhat different approach can be found in Laurence Tribe, Too Much Law, Too Little Justice, 224 Atlantic, July 1979, at 25. In systems terms this is a form of demand overload that could potentially threaten the institutions. Chief Justice Burger, among others, has been a strong supporter of the development of alternative mechanisms of dispute resolution (e.g., neighborhood justice centers) as a way of avoiding system overload. Alternative mechanisms will be discussed later; for the moment it is sufficient to note that rights consciousness encourages the assertion of rights but not necessarily use of the formal state legal machinery. Indeed activating alternative mechanisms depends upon individual initiative.Google Scholar

89 Nonet, supra note 74, at 8.Google Scholar

90 Bates v. State Bar, 433 U.S. 350, 376 (1977).Google Scholar

91 As important as rights consciousness is to mobilization of the law, it is a particularly elusive variable for empirical inquiry. The potential for research to test the validity of the model as a whole will be discussed later in the article.Google Scholar

92 The three direct measures of education, income, and occupation can be combined in a variety of ways to develop a socioeconomic (SES) index. The simplest is to standardize each measure and add them, giving equal weight to each. For an example of typical questions and a coding scheme used to measure socioeconomic status see Sidney Verba & Norman Nie, Participation in America: A Political Democracy and Social Equality, 365–66 app. C (New York: Harper & Row, 1972).Google Scholar

93 A contingent fee arrangement by which the lawyer is paid a percentage of the award has only limited applicability for the poor, whose legal claims are often too small in dollar amount to justify the investment of counsel's time.Google Scholar

94 The future of the Legal Services Corporation is now uncertain, with the Reagan administration on record in opposition to continuing funding for it. Their FY 83 budget proposal delivered to Congress February 8, 1982, included no separate federal funding for the Legal Services Corporation, with current funding to be used for close-out functions. ABA Government Relations Office Memorandum, Feb. 16, 1982. The administration's continuing dissatisfaction with the Legal Services Corporation is reflected in President Reagan's decision to withdraw his nine nominations to the board. Stuart Taylor, Jr., Reagan Withdraws 9 Nominees to Legal Unit, New York Times, Dec. 12, 1982, at 11.Google Scholar

95 Carlin et al., supra note 4.Google Scholar

96 In that study a judicial efficacy score was derived from responses to a series of five questions. See Jacob, supra note 6, at 259 table 8.1 note a.Google Scholar

97 Mayhew & Reiss, supra note 12; Curran, supra note 2.Google Scholar

98 Hurst argues that “common vulnerability to pain and suffering and the omnipresence of insurance companies … might make social class less determinative in [torts] than in other fields as to the character of the parties who litigated.”Hurst, James Willard, The Functions of Courts in the United States, 1950–1980, 15 Law & Soc'y Rev. 401, 423 (198081).Google Scholar

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101 Hunting and Neuwirth discovered that while 27 percent of those of low SES failed to take some action, only 2 percent of those of high SES failed to do so. But of those who did act, persons of high SES were less likely to retain lawyers (72 percent as opposed to 95 percent for low SES). The obverse of this finding is that higher status respondents were more likely to act by self-help than were those of lower status (28 percent to 5 percent). Hunting & Neuwirth, supra note 6, at 68, 98.Google Scholar

102 Best & Andreasen, supra note 22.Google Scholar

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107 Mayhew & Reiss, supra note 12.Google Scholar

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109 Id. at 2029.Google Scholar

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111 Stover, Roger V. & Brown, Don W., Understanding Compliance and Noncompliance with Law: The Contributions of Utility Theory, 56 Soc. Sci. Q. 363 (1975).Google Scholar

112 Wanner, Craig, The Public Ordering of Private Relations, Part Two: Winning Civil Court Cases, 9 Law & Soc'y Rev. 293 (1975).Google Scholar

113 Id. at 305–6.Google Scholar

114 See, e.g., Moulton, Beatrice A., Note, The Persecution and Intimidation of the Low-Income Litigant as Performed by the Small Claims Court in California, 21 Stan. L. Rev. 1657 (1969); Small Claims Study Group, Little Injustices—Small Claims Courts and the American Consumer: A Preliminary Report to the Center for Auto Safety (2 vols. Washington, D.C.: Center for Auto Safety, 1972).Google Scholar

115 Yngvesson, Barbara, & Hennessey, Patricia, Small Claims, Complex Disputes: A Review of the Small Claims Literature, 9 Law & Soc'y Rev. 219, 246 table 7 (1975).Google Scholar

116 Eovaldi, Thomas L. & Meyers, Peter R., The Pro Se Small Claims Court in Chicago: Justice for the “Little Guy”? 72 Nw. U. L. Rev. 947, 976 table VI. Another 43 percent are settled before trial, but no data are provided regarding success rates for the various actors. Id.Google Scholar

117 Id.Google Scholar

118 John C. Ruhnka, Housing Justice in Small Claims Courts, 47 table 4.1, 51 table 4.3 (Williamsburg, Va.: National Center for State Courts, 1979).Google Scholar

119 These data do not of course speak to the possibility that there are other valid claims that are being filtered out as well.Google Scholar

120 Ruhnka, supra note 118, at 53 table 4.5.Google Scholar

121 John C. Ruhnka & Steven Weller, Small Claims Courts: A National Examination 57 tables 3.18, 3.19, 3.20 (Williamsburg, Va.: National Center for State Courts, 1978). A favorable disposition is the indicator of success in all of the studies cited. Although judgments must be executed before the plaintiff may be considered genuinely successful, in the courts studied the collection rate is relatively high, particularly for contested trials. In the National Center for State Courts study of small claims courts, e.g., more than 70 percent of the plaintiffs reported being able to collect the judgment after contested trials, irrespective of the assistance of an attorney. Not surprisingly the collection rate for default judgments was substantially lower (60 percent with an attorney, 34 percent without). In almost all cases the entire amount of the judgment was collected. Id. at 166 table 7.4, 7.5.Google Scholar

122 Hunting & Neuwirth, supra note 6, at 39.Google Scholar

123 Ladinsky & Susmilch, supra note 21, at 17.Google Scholar

124 Hunting & Neuwirth, supra note 6, at 71.Google Scholar

125 Jacob, supra note 6, at 267.Google Scholar

126 Id. at 268.Google Scholar

127 Several studies in different contexts confirm that negative experience with governmental actors affects attitudes toward government agencies. The same studies indicate that the obverse fails to occur. That is to say, a positive experience does not seem to generate positive attitudes. See, e.g., Daniel Katz et al., Bureaucratic Encounters: A Pilot Study in the Evaluation of Government Services (Ann Arbor, Mich.: Institute for Social Research, 1975); Jacob, Herbert, Black and White Perceptions of Justice in the City, 6 Law & Soc'y Rev. 69 (1971); Hartmut Koch & Gisela Zenz, Erfahrungen un Einstellungen von Klägern in Mietprozessen, in Manfred Rehbinder & Helmit Schelsky, eds., Zur Effectivität des Rechts, vol. 3, Jahrbuch für Rechtssoziologie und Rechtstheorie 509, 527–28 (1972) (a study of lawsuits between landlords and tenants in three German cities). Hunting and Neuwirth's discovered relationship between positive experience and likelihood of repeat behavior is not necessarily inconsistent with these findings. For even if attitude toward an institution is relevant to use of it, as indicated in the model, there are numerous other variables that may well overcome a negative attitudinal variable. Hunting & Neuwirth, supra note 6.Google Scholar

128 For a discussion of legal mobilization as a form of political participation see Zemans, supra note 30.Google Scholar

129 David Easton, A Systems Analysis of Political Life 124 (New York: John Wiley & Sons, 1965).Google Scholar

130 The occupations from which legislators are drawn do tend to permit long periods of flexible or free time. See Occupational Profile of State Legislatures: 1979 (New York: Insurance Information Institute, 1979).Google Scholar

131 Zeisel et al., supra note 46, at 39 table 13.Google Scholar

132 E. Keith Stott, Jr., Theodore J. Fetter, & Laura Crites, Rural Courts: The Effects of Space and Distance on the Administration of Justice, Pub. No. R0032, at 7 (Denver: National Center for State Courts, 1977).Google Scholar

133 Buxbaum, David C., Some Aspects of Civil Procedure and Practice at the Trial Level in Tanshui and Hsinchu from 1789 to 1895, 30 J. Asian Stud. 255 (1971).Google Scholar

134 Howard & Goldman, supra note 32.Google Scholar

135 It is now well accepted that so-called dispute resolution procedures often only process rather than actually settle a dispute with any finality. This is itself related to the interpersonal relationships involved. For a recognized dispute between individuals who have had a long and multiplex relationship is often only a periodic episode in a longer underlying grievance. See Max Gluckman, The Judicial Process Among the Barotse of Northern Rhodesia 19 (Manchester, Eng.: University Press, 1955). This observation may even hold for actual adjudication in public courts. See, e.g., Jacob, supra note 33.Google Scholar

136 Hurst, supra note 98, at 422.Google Scholar

137 Anthropologists have described dispute resolution mechanisms from other cultures that they deem more beneficial to continued relationships, some of which they have suggested transplanting to the home shores. For a discussion of different dispute-processing mechanisms see, e.g., Laura Nader, Styles of Court Procedure: To Make the Balance, in Laura Nader, ed., Law in Culture and Society 69 (Chicago: Aldine Publishing Co., 1969); Laura Nader & Harry F. Todd, Jr., eds., The Disputing Process—Law in Ten Societies (New York: Columbia University Press, 1978). For a strong argument about the preferability of an institution from another culture see James L. Gibbs, Jr., The Kpelle Moot, in Paul Bohannan, ed., Law and Welfare (Garden City, N.Y.: Natural History Press, 1967). Felstiner argues against the transferability of mediative mechanisms to technologically complex rich societies such as the United States:. Mediation is no longer feasible because, whatever the shared general social and cultural experience, no specific mediators nor occupants of specific social positions will possess as a matter of existing experience sufficient information about the particular perspectives and histories of the particular disputants to be able efficiently to suggest acceptable outcomes. Felstiner, supra note 19, at 79. Yet mediation has been exceedingly important in some business contexts, perhaps because within that context the experience of some does provide sufficient information to allow for the suggestion of acceptable outcomes.Google Scholar

138 Ronald E. Malien & Victor Levit, Legal Malpractice 22 (St. Paul, Minn.: West Publishing Co., 1977) (emphasis added).Google Scholar

139 Sarat, Austin, Alternatives in Dispute Processing: Litigation in a Small Claims Court, 10 Law & Soc'y Rev. 339, 370 (1976).Google Scholar

140 Hunting & Neuwirth, supra note 6, at 47.Google Scholar

141 Erving Goffman, Stigma: Notes on the Management of Spoiled Identity 49 (Englewood Cliffs, N.J.: Prentice-Hall, 1963).Google Scholar

142 Engel, David M. & Steele, Eric H., Civil Cases and Society: Process and Order in the Civil Justice System, 1979 A.B.F. Res. J., 295, 316.Google Scholar

143 Hunting & Neuwirth, supra note 6, at 10.Google Scholar

144 Ruhnka & Weller, supra note 121, at 85 table 4.4.Google Scholar

145 Id.Google Scholar

146 Id. at 36.Google Scholar

147 David Caplovitz, Consumers in Trouble: A Study of Debtors in Default (New York: Free Press, 1974). The relationship between amount in dispute and action taken does not in itself necessarily negate the claim of the access-to-justice movement or the legal services perspective. For size of debt and income are somewhat correlated. That is to say, persons of low income tend to be involved in transactions of lower cost whether they be consumer purchases, tenant leases, or child support payments. In the Caplovitz study, among debtors who believe that they have a good reason not to pay and who are being sued for amounts in excess of $1,000, nearly half (46 percent) are not represented by counsel. Id. at 223. Consistent with the earlier discussion of rights consciousness, Caplovitz also demonstrates that irrespective of the amount owed, debtors are more likely to seek legal assistance when they believe that they are in the right. Id. at 224.Google Scholar

148 Best & Andreasen, supra note 22, at 718 table 10.Google Scholar

149 Richard L. Thomas, quoted in Dick Griffin, Top Execs Give Verdict on Lawyers, Chicago Daily News, Aug. 10, 1977, at 47.Google Scholar

150 Id. One corporate strategy to decrease legal costs has been to rely more heavily on in-house counsel. “They've become masters of their firms' dockets, practicing a brand of avowedly cost-conscious law,” notes one reporter. The Highest Legal Fees, Newsweek, Aug. 24, 1981, at 71. As if echoing the concerns of the access-to-justice critics of the legal system, a committee of corporate general counsel is engaged in an effort with the Center for Public Resources in New York to find cheaper ways to settle disputes. Id.Google Scholar

151 Saks, Michael J. & Kidd, Robert F., Human Information Processing and Adjudication: Trial by Heuristics, 15 Law & Soc'y Rev. 123, 137 (198081).Google Scholar

152 Ladinsky and Susmilch found that 27 percent of those who made consumer claims in Milwaukee eventually abandoned them by “lumping it.” They characterize such respondents as “clumpits.” Ladinsky & Susmilch, supra note 21, at 26 fig. C.Google Scholar

153 Curran, supra note 2, at 203; Mayhew & Reiss, supra note 12.Google Scholar

154 For some issues legal mobilization may be difficult to avoid. This may be so either because an area (like automobile accident torts) is so law-infused that the population is not able to separate the incident from its potential legal implications or because the goal being sought requires the imprimatur of the state in the form of a judicial disposition, as in probate or divorce cases.Google Scholar

155 Freidson, Eliot, Client Control and Medical Practice, 65 Am. J. Soc. 374 (1960).Google Scholar

156 Hunting & Neuwirth, supra note 6.Google Scholar

157 A comparison of Hunting and Neuwirth's findings, based on a study of accident victims in New York, with those of a study of accident victims (injuries causing more than two weeks' interruption in normal activities) in the United Kingdom illustrates differences in legal mobilization across nations. While New Yorkers may be more rights conscious and therefore more likely to make claims than other Americans (indeed Zeisel et al., supra note 46, esp. ch. 20, suggest as much), the difference in the findings in the two countries is still substantial. Of the 1,711 accident cases examined in the United Kingdom, three-quarters never considered the question of compensation at all, and only about one-half of those sought legal advice (Genn, supra note 6).Google Scholar

158 Hunting & Neuwirth, supra note 6, at 66.Google Scholar

159 Id. at 66.Google Scholar

160 Id. at 67.Google Scholar

161 Curran, supra note 2, at 201 table 5.5.Google Scholar

162 Id. at 203 table 5.7.Google Scholar

163 Both Curran and Mayhew and Reiss asked questions relevant to addressing this issue. Curran asked the very general question “What would you do about” each of six hypotheticals, including a probe of what resources would be used. Curran, supra note 2, at 281–84 app. 1. Mayhew and Reiss asked about talking with friends, neighbors, associates, public officials, and/or contacting organizations about problems experienced. See variables 101–60 in 1967 Detroit Area Study, supra note 12 (Codebook of Variables). Neither study has as yet yielded any published analyses of these data.Google Scholar

164 David Sanford, Nothing Works Anymore, 162 New Republic, Feb. 14, 1970, at 21.Google Scholar

165 Hannigan, John A., The Newspaper Ombudsman and Consumer Complaints: An Empirical Assessment, 11 Law & Soc'y Rev. 679, 688 (1977).Google Scholar

166 Bonn, Robert L., The Predictability of Nonlegalistic Adjudication, Law & Soc'y Rev. 563, 573 (1972).Google Scholar

167 Consistent with the importance of social costs to legal mobilization, Sarat found that the longer the prior relationship between the adversaries the more likely they were to persist in attempting to settle the case before going to trial. Sarat, supra note 139, at 359 table 9.Google Scholar

168 Eovaldi & Meyers, supra note 116, at 980.Google Scholar

169 Best & Andreasen, supra note 22, at 711 table 5. In interpreting this rate of activity it should be remembered that many of the perceived problems were articulated by respondents only after substantial probing. Under such conditions, it would be expected that action rates as a percentage of all problems mentioned, including those mentioned only after probes by an interviewer, would be lower than if only initially recalled problems were calculated. For a critique of the methodology employed in that study see Ross & Littlefield, supra note 22.Google Scholar

170 Best & Andreasen, supra note 22, at 714 table 7.Google Scholar

171 Ladinsky & Susmilch, supra note 21.Google Scholar

172 Sarat, Austin, & Miller, Richard E., Grievances, Claims, and Disputes: Assessing the Adversary Culture, 15 Law & Soc'y Rev. 525 (198081).Google Scholar

173 Id. at 540.Google Scholar

174 Ross & Littlefield, supra note 22, at 205.Google Scholar

175 Donald King & Kathleen A. McEvoy, for Department of Health, Education, and Welfare, Office of Consumer Affairs, A National Survey of the Complaint-handling Procedures Used by Consumers (Rockville, Md.: King Research, Inc., 1976).Google Scholar

176 Best & Andreasen, supra note 22, at 726 table 19.Google Scholar

177 Ross & Littlefield, supra note 22, at 206.Google Scholar

178 Where the written law offers the option, the victim may employ the criminal process with less cost than required for civil litigation but with little direct benefit beyond revenge. Exercising that option, of course, does not preclude seeking financial redress through alternative means. In some jurisdictions, restitution is being incorporated into criminal proceedings. For a review of these developments see Harland, supra note 44.Google Scholar

179 Pound, Roscoe, The Causes of Popular Dissatisfaction with the Administration of Justice, 29 A.B.A. Rep. 395 (1906).Google Scholar

180 Steele, supra note 1, at 295.Google Scholar

181 According to the Chief Justice, “We've got to look at all of the things which are now being done in the courts and try to find out whether some of them can't be done somewhere else.” How to Break Logjams in Courts: Exclusive Interview with Chief Justice Burger, U.S. News & World Rep., Dec. 19, 1977, at 21.Google Scholar

182 Stanley, Justin A., Minor Dispute Resolution, 68 A.B.A.J. 62 (1982).Google Scholar

183 For a discussion of the act and its history see Saari, David J., The 1980 Dispute Resolution Act, 25 Am. Behav. Sci. 107 (1981).Google Scholar

184 Joan Mullen & Daniel McGillis (for United States, Department of Justice, Law Enforcement Assistance Administration, National Institute of Law Enforcement and Criminal Justice, Office of Development, Testing, and Dissemination), Neighborhood Justice Centers: An Analysis of Potential Models 196 (Washington, D.C.: Government Printing Office, 1977). There may be some irony in creating still more institutions when the emergence of others may have encouraged more claims. Certainly the number of claims to alternative institutions has been on the increase. The caseload of the American Arbitration Association provides a case in point. Its 1977 caseload of 47,066 is more than twice what it was in 1971. Jerry Flint, An Answer to Crowded Courts, N.Y. Times, May 29, 1978, at D1, col. 3.Google Scholar

185 Whether third-party alternatives have been effective or how effective they have been in achieving these disparate goals is largely unknown. According to one analyst who coauthored a Justice Department report of the Neighborhood Justice Centers in 1980, the hope that they would relieve overburdened courts has not been fulfilled. “Instead,” he observed, “the advantage of mediation has been for people to be more satisfied with the quality of justice, ‘more chance to get their say-so.’”Ingwerson, Marshall, A Neighborly Way to Settle Disputes, Christian Sci. Monitor, Aug. 6, 1981, at B6.Google Scholar

186 This combination of roles in being illuminated by a description of some of the secondary broker organizations and dispute-processing forums in Milwaukee. Jack Ladinsky, Stewart Macaulay, & Jill Anderson, The Milwaukee Dispute Mapping Project: A Preliminary Report (Disputes Processing Research Program Working Paper 1979–3) (Madison: University of Wisconsin Law School, 1979).Google Scholar

187 Hannigan, supra note 165; Best & Andreasen, supra note 22. For a laundry list reflecting the variability of alternatives available both here and abroad, see New Approaches to Conflict Resolution (New York: Ford Foundation, 1978).Google Scholar

188 Hannigan, supra note 165, at 688. As will become clear, Hannigan's definition of third-party alternatives includes lawyers and legal structures. The figure thus somewhat overestimates fluidity in the use of third-party alternatives as defined herein; it does of course continue to affirm the general fluidity in the process once the decision to seek outside assistance has occurred.Google Scholar

189 Id. at 689 table 4.Google Scholar

190 Steele, supra note 110, at 671.Google Scholar

191 Bonn, Robert L., Arbitration: An Alternative System for Handling Contract Related Disputes, 17 Ad. Sci. Q. 254 (1972).Google Scholar

192 For a survey of diversion alternatives in civil cases, including coercive and noncoercive forms, see Earl Johnson, Jr., Valerie Kantor, & Elizabeth Schwartz, Outside the Courts: A Survey of Diversion Alternatives in Civil Cases (Denver, Colo.: National Center for State Courts, 1977). For a discussion of functionally similar institutions in other countries, see Mauro Cappelletti & Julie Saulnier, Access to Justice: Beyond the Traditional Adversary System, in Theodore J. Fetter, ed., State Courts: A Blueprint for the Future (Williamsburg, Va.: National Center for State Courts, 1978).Google Scholar

193 See two books by Walter Gellhorn, Ombudsmen and Others: Citizens' Protectors in Nine Countries (Cambridge: Harvard University Press, 1966) and When Americans Complain (Cambridge: Harvard University Press, 1966).Google Scholar

194 For a discussion of the relevance of the ombudsman to a school setting see Verkuil, Paul R., The Ombudsman and the Limits of the Adversary System, 75 Colum. L. Rev. 845 (1975).Google Scholar

195 According to Hannigan, supra note 165, at 681, the hotline idea originated in 1961.Google Scholar

196 An indication of the latter is the publication of what is described as an action-oriented directory listing more than 1,700 agencies and organizations that consumers can contact for help. Jeffrey Feinman, The Purple Pages (New York: Dutton Publishing Co., Hawthorn Books, 1979).Google Scholar

197 The case was a classic landlord-tenant dispute with recourse to city authorities peceived as involving too much “red tape,” and court proceedings as too slow and too costly for the tenants' group. For a discussion of the case see Kirsch, Harvey J., Conflict Resolution and the Legal Culture: A Study of the Rabbinical Court, 9 Osgoode Hall L.J. 335 (1971); S.E.T.C. v. Mindick, Wall St. J., Sept. 9, 1968, at 1, col. 4.Google Scholar

198 Mentschikoff, Soia, The Significance of Arbitration—A Preliminary Inquiry, 17 Law & Contemp. Probs. 698 (1952); Soia Mentschikoff & Ernest A. Haggard, Decision Making and Decision Consensus in Commercial Arbitration, in Tapp & Levine, supra note 75.Google Scholar

199 Los Angeles Neighborhood Justice Center Proves to Be a Viable Alternative to Court, 8 Law Enforcement Assistance Ad. Newsletter, Aug. 1979, at 7.Google Scholar

200 For a review of these programs see Roman Tomasic & Malcolm M. Feeley, eds., Neighborhood Justice: Assessment of an Emerging Idea (New York: Longman, 1982).Google Scholar

201 Salas, Luis, & Schneider, Ronald, Evaluating the Dade County Citizen Dispute Settlement Program, 63 Judicature 174 (1979).Google Scholar

202 Deborah R. Hensler, Albert J. Lipson, & Elizabeth S. Rolph, Judicial Arbitration in California: The First Year (R-2733-ICJ) (Santa Monica, Cal.: Institute for Civil Justice, Rand, 1981).Google Scholar

203 Id.Google Scholar

204 For an assessment of one area of growth in alternative third-party mechanisms see Tomasic & Feeley, supra note 200.Google Scholar

205 This example also demonstrates a disadvantage borne by those who do not interact socially with lawyers, thus introducing a class bias in the legal mobilization process. For those who do not have such personal contacts, the cost calculus to have such a letter written on one's behalf is substantially different.Google Scholar

206 The legal/nonlegal distinction shown is not to be taken as an endorsement of that dichotomization as a particularly valuable one in understanding norm systems and the interrelationships among them. Indeed I generally endorse the relevance to American society of anthropologist Leopold Pospisil's concept of multiple legal levels. Pospisil, Leopold, Legal Levels and the Multiplicity of Legal Systems in Human Societies, 11 J. Conflict Resolution 3 (1967). However, for purposes of this inquiry into the mobilization of the law of the state the legal/nonlegal distinction is analytically useful.Google Scholar

207 My own research has shown just how central nonlegalistic skills are to the practice of law. See Frances Kahn Zemans & Rosenblum, Victor G., Preparation for the Practice of Law—The Views of the Practicing Bar, 1980 A.B.F. Res. J. I.Google Scholar

208 The perceived need of legal representation for effective participation in court makes the self-help/court and third-party/court options relatively rare. They are also most likely to occur in particular contexts and involve a more limited number of issues. The growth of pro se adjudication where special mechanisms and assistance are provided for litigants to proceed on their own (sometimes prohibiting the very presence of professional counsel) probably accounts for most of the activity in these two cells.Google Scholar

209 David Easton, A Framework for Political Analysis (Englewood Cliffs, N.J.: Prentice-Hall, 1965).Google Scholar

210 Easton, supra note 129.Google Scholar

211 Easton, supra note 209, at 122.Google Scholar

212 Easton, supra note 129, at 90.Google Scholar

213 To the extent that Easton is correct about the dependence of demands on the characteristics of the gatekeepers, then Alfred Reed's admonition about keeping the legal profession open to Lincoln's common man is supported. Alfred Z. Reed, Training for the Public Profession of the Law (New York: Charles Scribner's Sons, 1921).Google Scholar

214 My own data from a study of Chicago practitioners indicates that less than 5 percent cite ability to pay as the most important factor in the selection of cases. In contrast more than 50 percent cite subject matter and consistency with current work. These data, however, must be interpreted in light of both consumers' selection of lawyers they can afford and of the organization of legal practice. With more and more attorneys now practicing within law firms, a declining percentage personally make decisions to accept or reject cases. These data are unpublished, but derived from the Legal Education and the Professional Development of Lawyers Questionnaire, in Frances Kahn Zemans & Victor G. Rosenblum, The Making of a Public Profession, 216 app. 1 question 9 (Chicago: American Bar Foundation, 1981).Google Scholar

215 The burgeoning of legal clinics, which typically offer low-fee initial visits, may go some way to diminish the initial barrier to seeking legal advice and thereby decrease the number of claimants who self-select out of the legal mobilization process before even contacting a lawyer. Like many of the questions raised herein, this too merits research attention.Google Scholar

216 See Johnson, Earl Jr., Lawyers' Choice: A Theoretical Appraisal of Litigation Investment Decisions, 15 Law & Soc'y Rev. 567 (198081), for an interesting discussion of the implications of a fee-for-service payment system for lawyers' choices.Google Scholar

217 It should also be noted again that despite much discussion to the contrary, the available evidence indicates that those looking for an attorney usually find one, and of those who don't, cost is not a dominant factor. See Curran, supra note 2; Mayhew & Reiss, supra note 12.Google Scholar

218 The discussion has continued to reflect a decision-making model of legal mobilization by individual actors in discrete instances. In practice the law as a resource is very often used by corporate actors and/or repeat players. For such decision makers it is not the basic model that differs so much as the cost calculus and sometimes a resultant leapfrogging of decision stages. A corporate actor, e.g., who either employs house counsel or has a continuing arrangement with outside counsel may receive a regular review of activities in light of their legal implications. That is to say, the law is being continuously evaluated as a possible resource. It is not so much that other steps have been eliminated but rather that the decision-making process has become an aggregate phenomenon, with a prior decision having been reached, presumably based on experience (see earlier discussion of “expectations of success”), that it is more cost effective to proceed directly to seeking legal assistance. As in the case of the individual decision maker, this of course does not preclude the subsequent use of self-help or third-party alternatives. Individuals may also be repeat players and so learn from experience the most effective path of action, thereby eliminating the need for proceeding stepwise. In particular, although possibly subject to redefinition, it is likely that once an incident or circumstance has been defined as worthy of action and even legal mobilization, it will continue to be so defined.Google Scholar

219 While that transformation sometimes itself changes the very nature of the issue, as when apparently amicable divorces turn into hostile encounters by the time the lawyers are through, the transformation may only be for purposes of making the issue cognizable to the state legal structures. For a nice example of this phenomenon see David Engel's description of the divorce of pseudonymous Mary and John Smith, and their request of the court as compared with their lawyers' Engel, David M., Legal Pluralism in an American Community: Perspectives on a Civil Trial Court, 1980 A.B.F. Res. J. 425, 448–50.Google Scholar

220 According to one analysis, “transformations occur because participants in the disputing process have different interests in and perspectives on the dispute.”Mather, Lynn, & Yngvesson, Barbara, Language, Audience, and the Transformation of Disputes, 15 Law & Soc'y Rev. 775, 776 (198081).Google Scholar

221 Such expansion of individual claims has been viewed as one way that social change is linked to legal change. Id. at 779. It should be made clear, however, that such a linkage is not always the result of planned efforts at change. Casper, e.g., in his study, Lawyers Before the Warren Court: Civil Liberties and Civil Rights, 1957–66 (Urbana: University of Illinois Press, 1972), illustrates how changes in the law may emerge from a strategic effort to win a case for an individual client. Though changes in the rights of the criminally accused were sufficiently dramatic to have been labeled a “revolution,” the attorneys involved in those cases were themselves merely transforming their clients' claims into a form that would be more persuasive to the decision makers, in this case the Supreme Court of the United States. The reshaping of issues in the appellate process is also not limited to those that become the basis for so-called landmark decisions. Court actions themselves may often change the issue by virtue of discovering and deciding an issue not raised by either litigant, by suppressing and not deciding an issue so raised, by expanding an issue raised, and/or by limiting or ignoring an issue raised and not deciding it. For an analysis of cases exhibiting this process see S. Sidney Ulmer, Issue Fluidity in the U.S. Supreme Court: An Exploration in Agenda Building, paper presented at the Annual Meeting of the Midwest Political Science Association, 1979.Google Scholar

222 Somewhat paradoxically two rather incompatible strategies for action have been generated by this same set of criticisms. On the one hand there are those who suggest going beneath the issue at hand to the psychological underpinnings of the problem and advocate therapy and counseling to deal with the “real” issue. On the other hand, others, who similarly criticize the narrow focus of the legal process and its inability to deal with underlying issues, instead advocate political mobilization to address the social inequities that are the “real” issues.Google Scholar

223 Macaulay, supra note 70.Google Scholar

224 Macaulay, supra note 35.Google Scholar

225 A similar situation can exist in the criminal justice system. My own research, e.g., indicates that prosecutors sometimes get involved, and consequently employ the power of the state, in matters where no criminal laws have been violated. See Zemans, supra note 26.Google Scholar

226 A recently documented failure to empirically examine the lawyer-client interaction reflects problems in research design rather than any inherent impossibility in researching this most important part of the process of legal mobilization. See Danet, Brenda, Hoffman, Kenneth B., & Kermish, Nicole C., Obstacles to the Study of Lawyer-Client Interaction: The Biography of a Failure, 14 Law & Soc'y Rev. 905 (1980); Rosenthal, Douglas E., Comment, “Obstacles to the Study of Lawyer-Client Interaction: The Biography of a Failure,” 14 Law & Soc'y Rev. 923 (1980). One limited study of lawyer-client negotiations in a legal services program is reported in Hosticka, Carl J., We Don't Care About What Happened, We Only Care About What Is Going to Happen: Laywer-Client Negotiations of Reality, 26 Soc. Probs. 599 (1979).Google Scholar

227 See Speigel, Mark, Lawyering and Client Decisionmaking: Informed Consent and the Legal Profession, 128 U. Pa. L. Rev. 41 (1979), for an extensive review of the literature and a call for a commitment by lawyers to shared decision making with clients. Concern about the relationship between professional and client and support for lay participation in decision making is not limited to things legal. Most work in this area has focused on doctors and their relationship with patients (see Eliot Freidson, Professional Dominance: The Social Structure of Medical Care (New York: Atherton Press, 1970), and Illich, supra note 7) or on the interaction of lay persons and experts more generally (see Stephen Wexler, Expert and Lay Participation in Decision Making, in Pennock & Chapman, eds., supra note 81, at 186).Google Scholar

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229 For a similar argument about participation in the polity generally see Frantz Fanon, The Wretched of the Earth 188–89 (New York: Grove Press, 1966).Google Scholar

230 For some of the most influential of the 1960s proponents of increasing the availability of legal services, see Carlin & Howard, supra note 3; Carlin et al., supra note 4. For an overview of some programmatic and research suggestions, see 11 Law & Soc'y Rev. 167 (1976), a special issue on the delivery of legal services, reprinting papers and discussion from a conference financed by a grant from the National Science Foundation to the Resource Center for Consumers of Legal Services.Google Scholar

231 James Willard Hurst, The Growth of American Law: The Law Makers (Boston: Little, Brown & Co., 1950).Google Scholar

232 Reginald Heber Smith, Justice and the Poor (memorial ed. Chicago: National Legal Aid and Defender Association, [1919] 1967).Google Scholar

233 See Clark, Charles E. & Corstvet, Emma, The Lawyer and the Public: An A.A.L.S. Survey, 47 Yale L.J. 1272 (1938).Google Scholar

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237 In Great Britain the standard rule is that cost follows result—that is to say, the loser pays the winner's costs, including legal fees. This has the effect of giving effect to the common law rule that the one whose rights have been violated should be made whole. For a catalog of the practices followed in selected other European countries see Werner Pfennigstorf, Legal Expense Insurance: The European Experience in Financing Legal Services 39 table 3 (Chicago: American Bar Foundation, 1975).Google Scholar

238 The implications of the American Rule extend well beyond the situation cited. I have addressed those issues in Legal Structure and Access to Justice: The Case of the American Rule, paper presented at the Annual Meeting of the Law and Society Association, Toronto, 1982.Google Scholar

239 See Ehrenzweig, Albert A., Reim bursement of Counsel Fees and the Great Society, 54 Calif. L. Rev. 792 (1966).Google Scholar

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241 See Joel F. Handler, Ellen Jane Hollingsworth, & Howard S. Erlanger, Lawyers and the Pursuit of Legal Rights (New York: Academic Press, 1978). It should be added that class action procedures may have the same effect. Though a perusal of the literature indicates that judicial efficiency rather than enforcement was the motive force behind the development of class action rules, this mechanism for the aggregation of claims has been used as a tool to achieve compliance.Google Scholar

242 See Rabin, Robert L., Lawyers for Social Change: Perspectives on Public Interest Law, 28 Stan. L. Rev. 207 (1976).Google Scholar

243 Philip Lewis, The Report of the Commission: Analysis and Change in Legal Services 79, in Philip A. Thomas, ed., Law in the Balance: Legal Services in the 1980s (Oxford, Eng.: Martin Robertson & Co., 1982).Google Scholar

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245 Some of this activism has been criticized as generating too much law and too many lawsuits. See, e.g., Ehrlich, supra note 88.Google Scholar

246 As Mayhew has noted, when the process of rationing lawyers is vested in an organization, “that organization [and not just the named litigants] will have an impact on the priorities of representation.” Mayhew, supra note 13, at 420.Google Scholar

247 The American experience has considerably influenced similar efforts in Western Europe to provide legal services to the poor and legal reform for their benefit. See K. Schuyt, K. Groenendijk, & B. Sloot, De Weg Naar Het Recht (The Road to Justice) (Deventer, Neth.: Kluwer, 1976), for a discussion of legal services activity in the Netherlands and emerging law shops in particular. For the United Kingdom see the report of the Royal Commission on Legal Services and its discussion of law centers. Royal Commission on Legal Services, Final Report (2 vols. London: Her Majesty's Stationery Office, 1979). For a different view see Law Centres Federation, A Response to the Royal Commission on Legal Services (London: Law Centres' Federation, n.d.). A substantial intellectual debt is acknowledged to the Legal Services Program by many European activists, some of whom studied in the United States during the 1960s.Google Scholar

248 Economic Opportunity Amendments of 1966, Pub. L. No. 89–794, § 215, 80 Stat. 1451.Google Scholar

249 See Harry P. Stumpf, Community Politics and Legal Services: The Other Side of the Law (Beverly Hills, Cal.: Sage Publications, 1975), for a discussion of the OEO Legal Services Program and the evolution of its policy concerns and activity.Google Scholar

250 See Finman, Ted, OEO Legal Service Programs and the Pursuit of Social Change: The Relationship Between Program Ideology and Program Performance, 1971 Wis. L. Rev. 1001.Google Scholar

251 See Stumpf, supra note 249, for a discussion of some of the political assaults on the Legal Services Program. The Reagan administration has proposed that the Legal Services Corporation not be reauthorized. Though unsuccessful in eliminating the Corporation, the administration has sought to curtail the scope of its program. See note 94 supra.Google Scholar

252 Canon 2 of Code of Professional Responsibility, American Bar Association, Committee on Ethics and Professional Responsibility, Model Code of Professional Responsibility and Code of Judicial Conduct (Chicago: American Bar Association & National Center for Professional Responsibility, as amended Feb. 1980).Google Scholar

253 Judicare is an alternative plan, operated by bar associations, for the delivery of legal services to the poor. For a discussion of this plan see Samuel J. Brakel, Judicare: Public Funds, Private Lawyers, and Poor People (Chicago: American Bar Foundation, 1974).Google Scholar

254 Lochner, Philip B. Jr., The No Fee and Low Fee Legal Practice of Private Attorneys, 9 Law & Soc'y Rev. 431 (1975).Google Scholar

255 Id. at 448.Google Scholar

256 Id. at 455.Google Scholar

257 Curran, supra note 2.Google Scholar

258 Concentrating the following discussion on prepaid legal services plans and legal clinics is not meant to imply that these are the only mechanisms (although they are the most prominent) that have been developed to serve the middle-income population. Bar associations have also been active in this area in recent years. Taped messages on various aspects of the law which can be dialed on the telephone have, e.g., become widespread. In Chicago this has been developed and implemented through the cooperation of the Chicago Bar Association and the Chicago Public Library. This same bar association has sponsored a number of programs in different areas as part of its lawyer referral services, including, e.g., a low-cost matrimonial plan. A description of these programs is provided in a manuscript by Terrence M. Murphy (assistant executive director, Chicago Bar Association), Lawyer Referral Service: The Complete Delivery System for Legal Services.Google Scholar

259 Pfennigstorf and Kimball attribute the earlier and larger development of prepaid legal service plans in Europe to several factors: the absence of the contingent fee, rules requiring the loser to pay attorneys' fees, and more standardization and greater public control of legal fees. Werner Pfennigstorf & Spencer L. Kimball, eds., Legal Service Plans: Approaches to Regulation 2 (Chicago: American Bar Foundation, 1977).CrossRef Google Scholar

260 See NAACP v. Button, 371 U.S. 415 (1963); Brotherhood of Railroad Trainmen v. Virginia ex rel Virginia State Bar, 377 U.S. 1 (1964); U.M.W. Dist. 12 v. Illinois State Bar Ass'n, 389 U.S. 217 (1967); United Transp. Union v. State Bar, 401 U.S. 576 (1971). Regulation of plans is permissible and varies by state.Google Scholar

261 In some cases (closed plans) attorneys are preselected, in others (open plans) the member is free to choose an attorney who will be paid by the plan according to its fee schedule.Google Scholar

262 There are some entrants into the field providing insurance to individuals. Midwest Mutual Insurance of Des Moines, Iowa, is one example; another is entrepreneur Harland Stonecipher of Ada, Oklahoma (Paying Less for a Lawyer, Consumer Rep., Sept. 1979, at 522, 525).Google Scholar

263 Curran, supra note 2.Google Scholar

264 Legal insurance for auto accident liability is the exception that proves the case. That is to say, unlike most other use of lawyers by individuals, needing a lawyer for such liability is unpredictable and similarly applicable to the bulk of the adult population (i.e., every driver). Under those conditions the insurance calculus can operate effectively.Google Scholar

265 American Prepaid Legal Services Institute brochure (Chicago: American Bar Association, n.d.).Google Scholar

266 Consumer Rep., supra note 262, at 526.Google Scholar

267 Legal Profession Has Severe Image Problem with Consumers, Advertising Survey Shows, 2 Nat'l L.J., Aug. 18, 1980, at 6, col. 2.Google Scholar

268 Bates v. State Bar, 433 U.S. 350 (1977), held that prohibitions on advertising constitute an unconstitutional restriction on free speech. The Code of Professional Responsibility's ban on advertising was subsequently changed to conform to the dictates of the court. Just what kinds of regulations on advertising would meet the constitutional test is unsettled.Google Scholar

269 Consumer Rep., supra note 262, at 523.Google Scholar

270 Id.Google Scholar

271 For an ideal of some of the other alternative systems, see discussion supra in note 258.Google Scholar

272 Pfennigstorf & Kimball, supra note 259, at 24.Google Scholar

273 There are, of course, some exceptions. The Shreveport Experiment in Prepaid Legal Services (Robert Paul Hallauer, 11 J. Legal Stud. 223 (1973)) was an early attempt to study a plan sponsored by the Ford Foundation and the American Bar Association. Timothy J. Muris and Fred S. McChesney more recently conducted a study of a legal clinic (Advertising and the Price and Quality of Legal Services: The Case for Legal Clinics, 1979 A.B.F. Res. J. 179).Google Scholar

274 For a discussion of the extent and nature of the methodological issues see Werner Pfennigstorf, Study of the Impact of Large-Scale Legal Clinics or Closed Panel Legal Service Plans on the Employment Situation of Independent Practicing Attorneys (preliminary research proposal submitted by Werner Pfennigstorf, principal investigator, through the American Bar Foundation, to the National Science Foundation, Oct. 7, 1977).Google Scholar

275 Mayhew & Reiss, supra note 12; Curran, supra note 2. Other studies that cover the use of lawyers have been limited either to those cases that are actually filed in the public courts or to a specific legal issue.Google Scholar

276 Mayhew, supra note 13, at 417.Google Scholar

277 Curran, supra note 2, at 103 fig. 4.1.Google Scholar

278 Id. at 102.Google Scholar

279 These figures are based on lawyer use for the most recently reported instance, so every respondent receives equal weight and the figures are not skewed by the activities of individuals who repeatedly employ lawyers. Curran, supra note 2, at 135 fig. 4.26.Google Scholar

280 Curran compares the percent of problem-havers who took action with the percent of action-takers who used any resource. Id. at 137 fig. 4.27.Google Scholar

281 Id. at 139 fig. 4.28.Google Scholar

282 Id.Google Scholar

283 See Howard S. Becker, Outsiders: Studies in the Sociology of Deviance (New York: Free Press, 1973), for a discussion of this point.Google Scholar

284 Hurst, supra note 98, at 428.Google Scholar

285 Id. at 428.Google Scholar

286 Id. at 429.Google Scholar

287 Hurst also presents data from Florida, Illinois, and Wisconsin to illustrate the effective finality of trial court dispositions, despite the existence of appeal mechanisms. Id. at 425.Google Scholar

288 Robert Kagan, Regulatory Justice 29–31 (New York: Russell Sage Foundation, 1978).Google Scholar

289 Steele, supra note 26.Google Scholar

290 Zeisel et al., supra note 46, at 40 table 14.Google Scholar

291 For those claims that are satisfied, there will of course be no need for such an evaluation.Google Scholar

292 Joseph L. Sax, Defending the Environment: A Strategy for Citizen Action (New York: Alfred A. Knopf, 1971).Google Scholar

293 Numerous other structural variables also affect the flow of litigation, particularly at the entry level. These include, but are not limited to, courts of limited jurisdiction, specialized regulatory agencies, court filing fees, and direct court collection of child support payments. Focusing the discussion in the text on just a few examples should not diminish the general point that structural variables make an important difference in the distribution of legality.Google Scholar

294 For an expanded discussion of existing law including case citations see Samuel Mermin, Participation in Governmental Processes: A Sketch of the Expanding Law, in Pennock & Chapman, eds., supra note 81, at 136.Google Scholar

295 This very issue has in fact been the subject of substantial legal controversy. In 1975 the U.S. Supreme Court established four criteria by which to judge whether a private right of action can be inferred from a federal statute (Cort v. Ash, 422 U.S. 66 (1975)). Since then there has been a series of cases that have applied those criteria to a number of statutes. See, e.g., Touche Ross & Co. v. Redington, 442 U.S. 560 (1979) (re: Securities Exchange Act of 1934); Cannon v. University of Chicago, 441 U.S. 677 (1979) (Title IX of Educational Amendments to Civil Rights Act); and California v. Sierra Club, 451 U.S. 287 (1981) (Rivers and Harbors Appropriation Act of 1899).Google Scholar

296 Cannon v. University of Chicago, 441 U.S. 677 (1979).Google Scholar

297 In our federal system there is often the question of the appropriate jurisdiction in which to file suit, yet another structural variable that can affect outcomes. In some cases there are choices to be made between federal and state courts, or even among state courts. The expectation is that that selection will be made on the basis of estimates of likely success. Such choice among tribunals is not limited to the American context. Developing nations with a colonial history typically enjoy a legal system that incorporates some aspects of both their traditional legal system and that brought and imposed by the colonial power. This sometimes presents choices to the litigant, with the new courts constituting a mechanism for circumventing the traditional administration of justice. For a discussion of this situation in the Indian context see Lloyd I. Rudolph & Susanne H. Rudolph, The Modernity of Tradition 261 (Chicago: University of Chicago Press, 1967).Google Scholar

298 A case recently settled in the U.S. District Court in Chicago provides a nice example: Shore v. Saks, 74 C 3513 (N.D. Ill., filed Dec. 5, 1974). Subsequent to a criminal antitrust case involving price fixing of women's clothing by three department stores, civil actions were filed on behalf of consumers who had overpaid. Although the stores agreed to pay $1,296,000, the amount paid to any one customer was very small. As an unnamed member of the class I received an award amounting to a grand total of $20.54. With the average refund being about $50, none were sufficient to warrant an individual action.Google Scholar

299 Smith v. Swormstedt, 57 U.S. (16 H.) 288, 303 (1853).Google Scholar

300 For a sample of the arguments, see Jack B. Weinstein, Some Reflections on the “Abusiveness” of Class Actions, 58 FRD 299 (1973); Becker, William H., Introduction: Use and Abuse of Class Actions Under Amended Rule 23, 68 Nw. U.L. Rev. 991 (1974); Berg, Richard P., Zahn v. International Paper: Taking the Action Out of Class Action, or Can Zahn Be Avoided? 12 San Diego L. Rev. 208 (1974); Dam, Kenneth W., Class Actions: Efficiency, Compensation, Deterrence, and Conflict of Interest, 4 J. Legal Stud. 47 (1975); Bernstein, Roger, Judicial Economy and Class Actions, 7 J. Legal Stud. 349 (1978).Google Scholar

301 In recent years, after a period of substantial growth in class actions, the calculus involved in filing such an action has been substantially changed as the direct result of a series of Supreme Court decisions that effectively limit their use. In Synder v. Harris, 394 U.S. 332 (1969), the Court required compliance with the $10,000 jurisdictional requirement for each plaintiff; in Zahn v. International Paper Co., 414 U.S. 291 (1973), this was significantly expanded to include unnamed plaintiffs as well. Since Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974), actual notice is required of every identifiable class member, and in Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240 (1975), the Court prohibited the awarding of attorneys' fees unless authorized by statute. For a more extensive coverage of the cases see Note, Finding a Forum for the Class Action: Issues of Federalism Posed by Recent Limitations on Use of Federal Courts, 28 Syracuse L. Rev. 1009 (1977).Google Scholar

302 Though this decision may be made jointly by litigant and attorney, the basic decision-making model continues to apply. The lawyer-client relationship and the nature of shared decision making has been the subject of a growing literature. See discussion above of issue transformation, and Douglas E. Rosenthal, Lawyer and Client: Who's in Charge? (New York: Russell Sage Foundation, 1974).Google Scholar

303 There are numerous court studies that lend insight into the impact of these variables, though they are typically framed to consider case filings as the data base without consideration of the screening process that has preceded formal entry into the courts. Hunting & Neuwirth, supra note 6, is an exception. Without diminishing my basic contention that an understanding of the use of the law as a resource requires a broader research focus, I maintain that studies of litigation are clearly still warranted, given the state of our knowledge. For two of the best examples of court studies that implicitly consider law as a resource, see Herbert Jacob, Debtors in Court: The Consumption of Government Services (Chicago: Rand McNally & Co., 1969), and Ruhnka & Weller, supra note 121.Google Scholar

304 See Engel, supra note 219, for evidence of how limited is the proportion of litigation that involves actual disputes. Friedman and Percival similarly document the limited role of disputes in court activity in two counties in California. Friedman, Lawrence M. & Percival, Robert V., A Tale of Two Courts: Litigation in Alameda and San Benito Counties, 10 Law & Soc'y Rev. 267 (1976).Google Scholar

305 Feeley, Malcolm, Coercion and Compliance: A New Look at an Old Problem, 4 Law & Soc'y Rev. 505 (1970).Google Scholar

306 Brown, Don W. & Crowley, Donald W., The Societal Impact of Law: An Assessment of Research, 1 Law & Pol'y Q. 253 (1979).Google Scholar

307 Herbert Simon, Administrative Behavior (New York: Macmillan Co., 1948).Google Scholar

308 Id. at 81.Google Scholar

309 Charles E. Lindblom, The Policy-making Process (Englewood Cliffs, N.J.: Prentice-Hall, 1968).Google Scholar

310 Selznick, supra note 31, at 229 (emphasis in original).Google Scholar

311 Mayhew, supra note 13, at 426.Google Scholar

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Framework for Analysis of Legal Mobilization: A Decision-Making Model

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