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The Emergence and Transformation of Disputes: Naming, Blaming, Claiming . . .

Published online by Cambridge University Press:  02 July 2024

William L.F. Felstiner ,
Richard L. Abel  and
Austin Sarat
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Abstract

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The emergence and transformation of disputes, especially before they enter formal legal institutions, is a neglected topic in the sociology of law. We provide a framework for studying the processes by which unperceived injurious experiences are—or are not—perceived (naming), do or do not become grievances (blaming) and ultimately disputes (claiming), as well as for subsequent transformations. We view each of these stages as subjective, unstable, reactive, complicated, and incomplete. We postulate that transformations between them are caused by, and have consequences for, the parties, their attributions of responsibility, the scope of conflict, the mechanism chosen, the objectives sought, the prevailing ideology, reference groups, representatives and officials, and dispute institutions. We believe the study of transformations is important. Formal litigation and even disputing within unofficial fora account for a tiny fraction of the antecedent events that could mature into disputes. Moreover, what happens at earlier stages determines both the quantity and the contents of the caseload of formal and informal legal institutions. Transformation studies spotlight the issue of conflict levels in American society and permit exploration of the question of whether these levels are too low.

Type
Part Two-The Civil Litigation Research Project: A Dispute-Focused Approach
Information
Law & Society Review , Volume 15 , Issue 3-4: Special Issue on Dispute Processing and Civil Litigation , 1981 , pp. 631 - 654
Copyright
Copyright © 1981 The Law and Society Association.

References

1 Viewing cases as things creates a temptation to count them. But we must be careful in doing so, because litigation rates, like crime rates (see Black, 1970), can be “produced” and manipulated (Seidman and Couzens, 1974). Recognizing this pitfall, researchers in many countries have sought to describe the universe of disputes by examining “legal needs” (see Baraquin, 1975; Cass and Sackville, 1975; Curran, 1977; Royal Commission on Legal Services, 1979; Royal Commission on Legal Services in Scotland, 1980; Colvin et al., 1978; Schuyt et al., 1978); Tieman and Blankenburg, 1979; Valetas, 1976). Yet these studies also reify the social process of disputing since the measure of need invariably reflects the researcher's theory and values, thereby necessarily distorting the social landscape of disputes (see Lewis, 1973; Griffiths, 1977; 1980; Marks, 1976; Mayhew, 1975).

2 Another way to define disputes is to adopt the definitions of civil or criminal law, in which case we will see the social world through the eyes of the existing political structure. Such a view accepts conventional understandings as adequate and conventional ideas of justice as acceptable. Alternatively, we can resist the temptation to impose ourselves on the people we study and attempt to learn how disputants themselves define their experiences. Each of these approaches has important consequences in the study of disputing.

3 We have not, of course, invented either the field or the term “transformation.” For earlier discussions, see particularly Aubert (1963), Mather and Yngvesson (1981), and Cain (1979).

4 Studies of public knowledge and opinion about law are only partially an exception, for they relegate the public to a largely passive role as receptor of and reactor to law (see Sarat, 1977).

5 Cf. Marx (1976: 72): “Men make their own history, but they do not make it just as they please; they do not make it under circumstances chosen by themselves, but under circumstances directly encountered, given, and transmitted from the past.”

Our perspective is influenced by the work of anthropologists who have observed forum choice in non-Western societies (e.g., Nader and Todd, 1978); economists concerned with responses to consumer dissatisfaction (e.g., Hirschman, 1970); and others who have measured or observed the way individuals manage personal problems (Gellhorn, 1966; Levine and Preston, 1970; Abel-Smith et al., 1973; Morris et al., 1973; Friedmann, 1974; Burman et al., 1977; Smith et al., 1979; Cain, 1979; Macaulay, 1979; Nader, 1980b).

6 Our point is not that economic theory would necessarily have any difficulty in coping with these complications or others, but that economic analysis as practiced often ignores them and is content with psychological oversimplification. See, e.g., Phillips and Hawkins, 1976.

7 Automobile guest statutes, which make it difficult for a gratuitous guest injured in an automobile to hold his host liable for damages, were enacted with precisely these factors in mind. See Brown v. Merlo (106 Cal. Rptr. 388, Sup. Ct., 1973); Schwalbe v. Jones (128 Cal. Rptr. 321, Sup. Ct., 1976); Cooper v. Bray (148 Cal. Rptr. 148, Sup. Ct., 1978).

8 Objectives, on the other hand, will also be influenced by audiences. Lloyd-Bostock notes:

It is not that the victim does not know his legal rights or how much he could receive. In a situation which is unfamiliar, he lacks specific norms of his own and does not feel competent to generate them for himself from more general principles because there is a range of possibilities. What he feels is, therefore, often largely the result of what his lawyer, trades union, the police, friends and others have suggested to him since his accident (1980: 24).

9 To generalize, when clients encounter lawyers in one-shot relationships (e.g., divorce, criminal defense, personal injury), the lawyers' primary allegiance is often to others (insurance claims agents, police, judges, other lawyers), whereas clients who deal regularly with lawyers demand and receive greater loyalty (see R. Abel, 1981; Galanter, 1974: 114-119; 1981).

10 This belief may explain why consumers from higher socioeconomic strata exhibit a higher level of dissatisfaction with their purchases—it is not the goods and services that are worse but the expectations that are more demanding, partly as a result of the consumer movement which, in its composition, is exclusively middle-class. See Best and Andreasen (1977: 707-709).

11 OSHA, which is based on the proposition that private paternalism proved inadequate, may have the opposite effect (see, e.g., Mendeloff, 1979).

12 For the inhibiting effect of such attitudes on pro bono representation, see Ashman (1972: 43); see generally Handler et al. (1978: ch. 5, 6).

13 Even class actions are often merely collections of individual disputes, aggregated for reasons of convenience and efficiency, rather than a form of collective action aimed at achieving a group objective, such as a shift in control over production decisions.

14 We acknowledge that in making money damages the quintessential remedy, courts are, in a sense, giving people what they “want.” But what people “want” is powerfully structured by legal institutions and the media. Although it is difficult to document this process in action, we know that at the turn of the century, before money compensation for injuries was commonplace, workers demanded radical improvements in industrial safety, and only the intransigence of employers compelled them to accept the workers' compensation system instead (cf. Eastman, 1978).

15 Regardless of whether one is ultimately deterministic, random events necessarily play an important role in transforming particular experiences, grievances, and disputes.

A third theme in Koch's review of disputes between neighbors is the importance of chance, of consequences which nobody intended becoming causes of further conflict which nobody sought. A few nuts are stolen, but no scuffle is intended; injuries occur, but no killing is intended; discovered trying to steal a pig in retaliation, the thief is killed . . . (Felstiner, 1976: 1020).

16 Gulliver's recent book on negotiations (1979), for instance, does not even concern itself with disagreements until they have been transferred to a public domain. All of his references to disputes in the U.S. are labor cases submitted to government mediation.

17 See Bohannan (1967), Moriarty (1975), Nader and Singer (1976: 282). For an analysis of the civil litigation rates of African countries, see R. Abel (1979d: 190-195). For historical studies showing declining litigation in the United States, see Grossman and Sarat (1975), Friedman and Percival (1976a); but see Lempert (1978). See generally Law & Society Review (1974-75).

18 In testing this hypothesis, it might be useful to compare Far Eastern societies with even lower levels of litigation, usually explained by the desire to avoid giving offense rather than the fear of receiving it (see, e.g., Kawashima, 1969; Hahm, 1968), with societies displaying much higher levels of disputing, such as those in the Mediterranean and parts of Africa, where culture mandates an immediate, public response to any affront (see, e.g., R. Abel, 1979b; Starr, 1978; Peristiany, 1965). For a fascinating study of attitudes toward injury in a non-Western culture, see Upham (1976).

For references cited in this article, see p. 883.