The present Spanish regime is not a democratic one if by democracy we mean a political situation which:

Rather, it has been characterized as authoritarian, using that term to describe a distinct genus besides democracy and totalitarianism. Generally, political democracy and judicial independence tend to be associated, the former being considered a necessary though not sufficient precondition for the latter. Thus, one might be inclined to expect contemporary Spain to display a strongly politicized and ideologically uniform judiciary. The first section of this paper will suggest, however, that this is far from being the case: recent survey data from a national sample of Spanish judges testify to the existence of a remark-able degree of ideological diversity among the members of the Spanish judiciary. Such a pattern is explained in the second section of the paper as the correlate of the considerable degree of independence from the political system which the Spanish judges seem to enjoy with respect to their selection, training, promotions and everyday activities.

This paper analyzes who wins and loses in the civil trial courts in Baltimore, Cleveland and Milwaukee. Research was conducted during 1971 and 1972 when a total of 7,800 civil court cases were examined and summarized from the case folders and dockets of courts of first instance with general jurisdiction in Baltimore, Cleveland and Milwaukee. Cases were selected randomly, sampling without replacement, from the 1965 and 1970 records of cases filed from those court records which were open to public inspection (records of paternity suits and adoptions, for instance, were not available). Cases were coded by: (1) the type of legal action initiated; (2) the outcome; (3) the names and addresses of all litigants; (4) the names of law firms and attorneys; (5) the date of filing; (6) the date of last recorded docket entry; (7) the number of court proceedings docketed; (8) the amount of money in dispute; (9) the amount of money awarded as damages; and (10) the census tract of each litigant.

For Émile Durkheim, crime and punishment were integral features of organized social life. He considered the study of crime and punishment essential to the sociological enterprise precisely because these “social facts” revealed the inner workings of society and the mechanism through which societies change. In The Rules of Sociological Method Durkheim argues (1938:70) that “crime is … necessary, it is bound up with the fundamental conditions of all social life,” and that “it is no longer possible … to dispute the fact that law and morality vary from one social type to the next, nor that they change within the same type if the conditions of life are modified.” Because he viewed law as a reflection of basic social arrangements, Durkheim grounded his theory of social change in an analysis of comparative legal types. He assumed (1933:68) that “since law reproduces the principal forms of social solidarity, we have only to classify the different types of law to find therefrom the different types of social solidarity which correspond to it.” In his central theoretical work, The Division of Labor in Society (1933), Durkheim linked the changing nature of legal controls (repressive to restitutive) to transformations in the nature of social solidarity (mechanical to organic).

Man is an ingenious social animal. Institutionalized responses to interpersonal conflict, for instance, stretch from song duels and witchcraft to moots and mediation to self-conscious therapy and hierarchical, professionalized courts. The dispute processing practices prevailing in any particular society are a product of its values, its psychological imperatives, its history and its economic, political and social organization. It is unlikely that any general theory encompassing all of these factors will be developed until there have been many piecemeal attempts to understand something of the influence of each.

An impression widely held has it that American criminal courts are caught in a crisis. The manifestations of this presumably critical condition are well-known: ever-expanding workloads; indigent defendants held for weeks, months, and sometimes years of pre-trial confinement; officials and attorneys preoccupied with the mechanics of “plea bargains” instead of the intricacies of trials; protracted delays in settling some cases; disposition of other cases by means of arbitrary and prejudicial techniques; pervasive inequalities in sentencing decisions, and so on.

During the last five years, these symptoms have received attention from a number of respected journalists (James, 1971; Downie, 1972; Jackson, 1974). Criminal courts and their ailments have come under extensive study by several recent government commissions (President's Commission, 1967; Skolnick, 1969; National Advisory Commission, 1973). Social scientists have also shown increasing interest in these problems (Skolnick, 1967; Blumberg, 1970; Mileski, 1971; Levin, 1972; Mather, 1974).

This essay attempts to discern some of the general features of a legal system like the American by drawing on (and rearranging) commonplaces and less than systematic gleanings from the literature. The speculative and tentative nature of the assertions here will be apparent and is acknowledged here wholesale to spare myself and the reader repeated disclaimers.

I would like to try to put forward some conjectures about the way in which the basic architecture of the legal system creates and limits the possibilities of using the system ;as a means of redistributive (that is, systemically equalizing) change. Our question, specifically, is, under what conditions can Iitigation be redistributive, taking litigation in the broadest sense of the presentation of claims to be decided by courts (or court-like agencies) and the whole penumbra of threats, feints, and so forth, surrounding such presentation.

Little is known about the factors influencing the frequency of civil litigation. Courts do not seek their clientele actively. Rather, they wait for litigants to bring cases to them. The determinants of litigation thus have to be sought primarily outside the courts: they have to be sought by analysis of the frequency of all conflicts which are relevant to legal regulation. Conflict of itself does not produce a civil suit: there has to be some initiative to bring the issue before the court. Although we do not know the total population of all law-relevant conflicts (that is, all conflicts which might possibly be regulated by law), we may safely assume that there is a selection process which sifts out all but a small proportion of all potential conflicts. Here, conditions within the courts (among others) enter: the more expeditiously civil suits are handled, the less costly, the more accessible courts are to lay people, the more readily they will take their issues to court.

During the first half of this century, most research on deterrence suggested that punishment had little effect on behavior. These findings tended to confirm the ideological position of most sociologists, who generally assumed that criminal behavior was not and probably could not be controlled by legal sanctions. However, recent developments indicate that this assumption is in error. First, laboratory research (e.g., Banduara, 1969:292-353; Bandua and Walters, 1963) has demonstrated that under certain conditions, punishment can effectively and efficiently control behavior, and that such control can be obtained through vicarious reinforcement. Second, and more important, research since 1960 by both economists and sociologists, generally more sophisticated than earlier work, suggests that legal sanctions often play a significant role in preventing criminal behavior. (See, for example, Chambliss, 1966; Gibbs, 1968; Tittle, 1969; Logan, 1972; Chiricos and Waldo, 1970; Tittle and Rowe, 1974; 1973; Jensen, 1969; Waldo and Chiricos, 1972; Phillips and Votey, 1972; Phillips, 1973). Thus the issue for future research is no longer whether legal sanctions ever deter criminal behavior, but the specification of the conditions under which they have such an effect. This paper seeks to develop some hypotheses to guide future research on these conditions.

Courts, unlike most other political institutions, depend almost exclusively on the actions of others to initiate proceedings which comprise their agendas of decision-making. Formal rules and custom proscribe the independent searching out of cases by American courts. These courts may, in a sense, invite litigation by the way they handle certain kinds of issues, but they must await the development of real “cases and controversies;” and, more importantly, they must await private choices which may or may not bring these cases and controversies to court. Recent years have brought some recognition of the importance of such private choice-making activity in setting the boundaries of the policy-making roles which the courts can play. As Donald Black (1973:126) argues, “[t]he day to day entry of cases into any legal system cannot be taken for granted. Cases of alleged illegality and disputes do not move automatically to legal agencies for disposition and settlement.”

In a recent article in these pages Professor W.L.F. Felstiner (1974) made a substantial contribution to the literature on dispute processing by analyzing the role of avoidance as a means of ending disputes, and by correlating the ubiquity of this technique with differing forms of societal organization. In brief, his insight—richly developed in the article—is that the tendency to walk away from contentious situations is greater in “technologically complex, rich societies” than in “technologically simple, poor societies.” This is because the organization of richer societies minimizes the importance and the intertwining (multiplexity) of family and other group ties and maximizes social, occupational and geographic mobility. In contrast, citizens of poorer societies are bound closely to the individuals in their communities and thus have a greater need and capacity for resolving—rather than walking away from—disputes with those individuals.

The demise of the “upper court myth” (see Frank, 1969: 222-24) and the resultant realization of the importance of the “trial” court has spurred research into the dispositional processes of criminal courts. In the forefront of the results yielded by these efforts is a model of case disposition very different from the familiar Perry Mason courtroom interaction, a model predicated on negotiated dispositions rather than adversary combat, in short, a plea bargaining model.

Plea bargaining can be defined as the process by which the defendant relinquishes his right to go to trial in exchange for a reduction in charge and/or sentence. The pervasiveness of plea bargaining is suggested by the fact that roughly only 10% of all criminal cases go to trial.

I have suggested (1974) that in societies such as the United States, where non-governmental institutionalized mediation and adjudication of interpersonal disputes are infrequent, some of the slack may be absorbed by avoidance. I implied that avoidance would generally have lower costs in the United States than in societies where such mediation and adjudication are widely available. Danzig and Lowy (1975: 676-682) argue that I have underestimated the costs of avoidance in the United States. They may be right. In any event, avoidance can be analyzed more precisely than it was in my original paper (see 1974: 70, 76, 79-80, 83-84). This response will try to provide such an analysis, including a more complete breakdown of avoidance costs. It will suggest why I appraise avoidance costs differently than do Danzig and Lowy. It will also re-evaluate some of the variance in avoidance costs between different societies. Finally, it will discuss avoidance and Danzig and Lowy's proposed neighborhood mediation.

In my contribution to the first part of this collection I suggested that the character and impact of litigation might be best understood if, rather than starting from consideration of rules or of institutional processes, we began by looking at the parties and their relation to dispute institutions. I introduced a simple distinction between those actors in society who have many occasions to utilize the courts (in the broad sense) to make (or defend) claims and those parties who do so only rarely. Parties who have only occasional recourse to the courts I called one-shotters (henceforth, OS) and parties engaged in a large number of similar litigations over time repeat-players (RPs). I then argued that an RP might be expected to play the litigation game differently from an OS and that the RP would enjoy a number of advantages in the litigation process. Briefly, these advantages include: ability to structure the transaction; expertise, economies of scale, low start-up costs; informal relations with institutional incumbents; bargaining credibility; ability to adopt optimal strategies; ability to play for rules in both political forums and in litigation itself by litigation strategy and settlement policy; and ability to invest to secure penetration of favorable rules.

Reported opinions are a rich source of dispute data. Ideally they answer a wide variety of questions: who are the parties, what do they want, where have they gone for redress, how was the dispute processed, when was it resolved? Many of these questions can be answered with case data, but caution is required. Disputes leaves trails and traces in many places. Judicial opinions capture part of the story (namely, the official response to specified claims on a particular occasion), but they are spotty dissiers.