Despite increased research into court operations, reliable knowledge about court functions continues to be scant. Case volume has grown, but court dispositions account for a small part of all dispute resolutions. Most matters which reach disposition in court end at some stage of trial court proceedings. Judges also continue to be makers of general public policy. Common law growth has dwindled. But courts contribute much to the content of public policy through their interpretation of statutes and their review of executive and administrative action. Judicial review of the constitutionality of legislation has declined sharply in fields centered on the economy, while expanding in areas of civil liberties.

If the law's traditional road to reform were the only path available, we would still be trying to improve the administration of justice by theorizing and “reasoning” our way to betterment. That is no longer the only way. Recent decades have seen a rise in the use of systematically gathered data to identify problems and devise responses to aid the justice system. This new path takes the investigator into the field rather than into the library, relying on the skills of the social scientist and statistician as well as those of the legal thinker.

Civil courts and litigation, long a neglected area of legal scholarship (Hurst, 1981), have begun to receive more attention and due recognition of their important role in the legal system and society. Analyses of what the civil courts do, and fail to do, are taking their place beside the numerous studies of the criminal courts. A critical literature has emerged, with some arguing that our system provides no effective forum for many civil complaints (Nader, 1980) and others expressing concern that the adversarial mode of dispute processing—the hallmark of Anglo-American civil procedure—may be costly and inappropriate for many conflicts (Fuller, 1978; Horowitz, 1977; Simon, 1978). Critics have also pointed to rising litigation rates and court caseloads, generated spectres of a “litigation explosion” or “crisis in the courts,” and worried about excessive litigiousness (Barton, 1975; Manning, 1977; Rosenberg, 1972).

This paper describes the data collection strategy of the Civil Litigation Research Project. It discusses many of the practical problems of choosing and implementing the research design and assesses the results of the data collection effort.

The existence of a dispute has typically been the starting point for inquiries into dispute processing and resolution. This paper explores the origins of disputes in grievances and claims. It reports on a survey of households estimating the rates of grievances, claims, and disputes which could have been processed by a civil court of general jurisdiction. The paper also explores multivariate models of the probabilities that households experience substantial grievances, that claims for redress are made, and that disputes result. The models assess the contributions of household and problem characteristics to these transitions. By treating disputes as problematic outcomes of injurious experiences, the paper contributes to an assessment of the adversariness of American society.

This article explores economic determinants of lawyer behavior which in turn shape basic decisions affecting their clients in such areas as whether to file litigation, how much discovery to employ, whether to accept a settlement offer, and the like. Three methods of compensating lawyers are identified: fee-for-service, contingent-fee, and third-party payment. It is hypothesized that each of these methods creates very different configurations of economic incentives, some of which conflict with the best interests of clients. The possibilities for maximizing various of these economic goals are discussed along with the limits— economic and noneconomic—on such behavior. Finally, the article suggests some potential applications of this analysis for public policy and further research.

This paper applies the methodology of economics to the analysis of resource allocation by households with actual or potential disputes. A model of household production of “legal welfare” is constructed. Household time and money investment decisions over time are analyzed within the household production framework. Finally, a simplified set of functions for measuring household demand for dispute resolution goods and services is presented and discussed.

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.

There is growing interest in the role that individual judgments play in moving people to seek recompense for perceived injuries. Social psychological theory and research may provide valuable clues about the types of judgments that are important in the development of disputes, and the facts that influence these judgments. In this paper, we describe relative deprivation, perceived control, equity, and attribution theories. We also discuss the relevance of these theories to dispute development, differential rates of problem perception, and the making of claims for redress. We conclude with suggestions for future research on the emergence of disputes.

There has been a timely shift in the focus of the sociology of law from an emphasis upon the characteristics, operations, and impact of the distinctively legal institutions and agents in modern societies, to an exploration of a more complex set of interrelationships between those institutions and agents and other social phenomena. Kidder (1975: 385ff) outlined the significance of this shift in focus for students of litigation. The Civil Litigation Research Project is itself an embodiment of the change. The early products of the Project which are presented in this issue of the Review are a testimony to the importance of the change. Indeed, it is hard to imagine an empirical research project in the sociology of law which could be of more theoretical significance and at the same time offer so many practical policy implications. By the same token, the articles contained in the Review provide the opportunity for appreciating some of the difficulties of, and dilemmas in, producing theoretically integrated and methodologically satisfactory studies in the sociology of law with the new focus. This is not to direct criticism particularly at the Project or at the authors of the articles in this issue of the Review. Rather, it is to point to a more general set of difficulties and dilemmas facing many who are currently striving to produce an empirically based sociology of law which attempts to place law in its more general social context.

The study of dispute settlement within the sociology of law has, for the most part, been organized around institutionalized processes of dispute settlement, which typically has meant around dispute settlement institutions. Although some researchers—notably in anthropology—have provided detailed natural histories of disputes, including information about denouements, most dispute settlement research has focused on the immediate inputs into the institutions of dispute settlement, on processes of dispute settlement, and on dispute resolutions both as outcomes of processes and outputs of institutions. Inputs of interest have included, on the one hand, parties and their representatives and, on the other, the disputes parties bring. Process has been broadly defined to include actions that occur within dispute settlement institutions and also organized patterns of behavior, such as Eskimo song duels, that may not be institution bound. Outcomes and outputs are typically confounded and operationalized as the decisions of institutions, although we know that in some settings these decisions do not necessarily determine party outcome.

The studies reported in this issue stem from a concerted, well-coordinated attempt to deal with the “hidden” dimension of disputing in the United States. The Civil Litigation Research Project (CLRP) was prompted by conclusions which have emerged in recent years from a variety of research traditions, all focused on issues of dispute settlement, or “dispute processing” as it has been relabeled. The hidden dimension of disputing was one of many issues which emerged from these disparate research traditions. Given the definition of the problem produced by earlier analyses, the decisions made by the CLRP investigators seem reasonable, and the results to date give some answers.

With each step forward, with each problem that we solve, we not only discover new and unsolved problems, but we also discover that where we believed we were standing on firm and safe ground, all things are, in truth, insecure and in a state of flux.

Karl Popper

(Popper, 1976: 87)

This article analyzes a survey of attorneys' motivations in choosing federal or state courts in diversity cases in four judicial districts. The study examines the importance of lawyers' perceptions of (1) local bias based upon residency, (2) the comparative efficiency and quality of state and federal courts, and (3) familiarity with and partiality for state or federal court procedures. It is shown that the rural versus urban setting of the court influences the perception of local bias and quality of the courts. Relative efficiency and differences in procedure between state and federal courts are also important factors affecting forum choice. The survey offers some insight into the potential impact of proposed reforms of the federal diversity of citizenship jurisdiction. The variation in motivations for forum choice among the districts provides little support for nationwide abolition of diversity jurisdiction.

This article develops an analytic framework for comparing dispute processing within a single institution and across different cultures, by focusing on the transformation of disputes. Case studies from diverse nonwestern and western settings are examined to show how disputes change as they are processed in response to the interests of various participants. Disputants, supporters, third parties, and relevant publics seek to rephrase and thus transform a dispute by imposing established categories for classifying events and relationships (narrowing), or by developing a framework which challenges established categories (expansion). Disputes may be expanded by adding new issues, by enlarging the arena of discussion, or by increasing the number and type of active participants. Thus, how the dispute is defined (language) and the roles played by various participants are critical features of the dispute. We focus on the agent of transformation, with special attention to the degree of audience participation, particularly in dispute expansion. We suggest the importance of expansion as a mechanism through which new rules emerge in the legal process, and through which social change is linked to legal change.

This article examines the behavior of civil litigants in a state general jurisdiction trial court over an extended period of time, 1820 to 1970. It focuses on whether the dispute resolution function of courts has diminished with social and economic development and rising litigation costs. The data consist of case records sampled at fifteen-year intervals. The samples are broken down into five case issues (domestic relations, torts, debts, nondebt contracts, and property) to determine the degree of change in the legal agenda. The rate of litigation (cases filed per 1000 population) is compared across issues, and disposition patterns over time are analyzed. The findings indicate that trial court processes have not totally converted to “rubber stamp” administration of routine petitions. Although the degree of judicial intervention into cases has changed, the court continues to play a significant role in the resolution of private conflicts.

This paper examines complaint processing in an attorney general's office of consumer protection. It describes how, in the implementation and routinization of a new statute, considerations external to the law or the individual case arise, transform, and begin to characterize law enforcement. The paper describes how the staff attempts to confine the office's work by creating statistical records of work done. These records are creations because the activities of the agency—investigation and resolution of consumer complaints—do not generate unambiguous criteria of completion. The office operates within practical criteria for determining when a case is finished. As the statistical records help to routinize the task of consumer protection, they become a source of bias, direction, and legitimation for law enforcement.