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C H A P T E R 4

Law and Dispute Processing

Have you ever had a quarrel withyour parents? Did your parents everhave a problem with a neighbor, or perhaps with a plumber or auto mechanic who did shoddy work? Have you ever had a difference of opinion with a friend, partner (boyfriend or girlfriend), roommate, or any- one else you know? Have you ever had an argument in a bar or at a party? Have you had a problem with a landlord? When any of these events occurred, what did you do? Did you just disagree and let it go at that? Did you try to work it out? Did you seek the help of a third party? Did anyone go to court?

Many ways of addressing disputes exist, and the use of the legal system is one of these ways. As noted in Chapter 1, an important function of law is, ideally, to help settle the many problems that may occur in our society or those elsewhere. Some prob- lems may be too trivial for an attempt at a legal solution to make sense, but others may be sufficiently serious for one or both parties to a dispute to look to the law for relief. Such use of the law—adjudication—may indeed help settle a dispute, but it may also ironi- cally aggravate the problem rather than relieving it. This chapter examines adjudica- tion and other possible ways of dealing with disputes, discusses the factors that prompt societies and individuals to favor one method

Chapter Outline

The Disputing Process –Stages in the

Disputing Process –Methods of Dispute

Processing Explaining Dispute Processing Decisions

–Societal Factors –Individual Factors

Dispute Processing in the United States

–Dispute Processing and Litigiousness: Then and Now

–Legal Consciousness and Going (or Not Going) to Court

–The Litigation Crisis Controversy

–Alternative Dispute Resolution (ADR)

Summary Key Terms

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of dispute settlement over another, and then focuses on law and dispute processing in the United States.

THE DISPUTING PROCESS

Every society has disputes, and everyone in every society becomes involved in many disputes, some very minor and others much more serious, over their lifetimes. Many disputes involve two or more individuals: the students in the dorm room next to yours may play their music too loudly late at night; a married couple may fight a lot and begin thinking about divorce; siblings may contest a will after their remaining parent dies; in one of the many pre- modern societies studied by anthropologists, someone may steal sheep, crops, or other important goods. Other disputes involve various kinds of groups and organizations: a citizen group may challenge plans to build a “big box” store like Wal-Mart or seek to end mercury pollution of a nearby river; a department store may take action against someone with a long- standing unpaid bill; one corporation may accuse another corporation with copyright infringement.

As these examples indicate, disputes occur in many ways and for many reasons. They are found in even the most harmonious societies and the best of relationships. Whether we prefer the term “conflict,” “contention,” “dispute,” “disagreement,” “friction,” “quarrel,” “squabble,” or any other synonym, disputes arising from different views, perceptions, and conclusions are uni- versal. When they do arise, they must be addressed, even if this means just ignoring or glossing over the problem. Just as every society has disputes, so does every society have one or more customary ways of dealing with dis- putes. Just as individuals and groups become involved in many disputes over time, so must they decide what to do when a dispute arises. This process of dealing with disputes goes by many names in the literature on this subject, including “handling,” “management,” “processing,” “resolution,” and “settlement.” Whatever we call it, this process is an essential part of any society.

As Chapter 2 discussed, many anthropologists have stressed that law, or at least the equivalent of law, may be found in the ways that premodern societies process disputes. Even if these societies are too premodern to have courts, judges, and other legal trappings familiar to the Western mind, they nonetheless have regular procedures for handling disputes, and these proce- dures help them maintain social order just as law ideally helps maintain social order in modern Western societies.

This interest in disputes has led legal anthropologists to focus much of their attention on the disputing process in premodern societies. In many ways, this process looks very different from that found in modern societies, but in other ways, as we shall see, it may seem familiar. Perhaps most impor- tant for our purposes, an understanding of the disputing process in premodern

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societies provides an illuminating contrast to the use of law to settle disputes in modern societies. As people in the United States and elsewhere seem to becoming increasingly frustrated with the cost, slow pace, and other prob- lems of using the law to address disputes, perhaps we have much to learn from the societies that anthropologists have studied. Accordingly, the first part of this chapter examines what anthropologists have said about the dis- puting process in tribal societies. One goal here will be to see what lessons might be learned for appreciating the advantages and disadvantages of using the law when disputes arise in the United States and other modern societies.

Another goal will be to appreciate how a society’s disputing process reflects the culture and social structure of the society itself and, in so doing, to reinforce this book’s theme that law is a social phenomenon. As historian Jerold Auerbach (1983:3–4) has written,

The varieties of dispute settlement, and the socially sanctioned choices in any culture, communicate the ideals people cherish, their perceptions of themselves, and the quality of their relation- ships with others. They indicate whether people wish to avoid or encourage conflict, suppress it, or resolve it amicably. Ultimately the most basic values of society are revealed in its dispute-settlement procedures.

By understanding the disputing process, then, we better understand the society in which the disputing process occurs.

Stages in the Disputing Process

Following common practice, this book uses the term “dispute” to refer to a problem or disagreement between two (or more) parties that is handled by one or more of the methods of dispute processing discussed in the next sec- tion. However, some scholars have developed typologies that describe stages in the disputing process and in particular reserve the term “dispute” for a problem that escalates beyond an initial disagreement. Two popular typologies are worth describing here.

A typology by anthropologists Laura Nader and Harry F. Todd, Jr. (1978a) is the shorter (though no less influential) of the two and outlines three stages of the disputing process. The first stage involves a situation or disagreement that one party regards as unjust or unfair. Nader and Todd call this the grievance stage. The grievance may be real or only imagined, they note, but add that the “important thing” is that the party feels “wronged or injured” (p. 14). Once a grievance arises, it may fade away or stay under the surface if the aggrieved party does nothing about it, or it will escalate if the aggrieved party chooses to confront the offending party by indicating “resentment or feeling of injustice” (p. 15). If so, the grievance has now

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entered the conflict stage. If the two parties cannot resolve their conflict by themselves (through the methods of coercion or negotiation; see below), the disagreement then enters the dispute stage by becoming public with the involvement of one or more third parties. Thus, a grievance becomes a dis- pute if and only if a third party knows about the grievance and becomes involved in trying to resolve the grievance. Nader and Todd note that some grievances skip the conflict stage by proceeding directly to the dispute stage (as when a person files a lawsuit without ever telling the offending party about a perceived grievance), and they add that the process may reverse with a dispute deescalating to a grievance if the aggrieved party decides to give up. A dispute may also disappear altogether if the offending party makes amends to the satisfaction of the aggrieved party.

The other popular typology comes from sociolegal scholars William L. F. Felstiner, Richard L. Abel, and Austin Sarat (1980–1981). They begin with the concept of an injurious experience. This is a situation in which people are being hurt (in terms of their health, finances, or some other way) whether they realize it or not. Initially they might not realize they are being hurt, and this is the first stage, or the unperceived injurious experience stage. As an exam- ple, the authors cite higher cancer rates among people living downwind from a nuclear test site. These people are certainly being harmed long before their cancers emerge, yet this harm remains unperceived. When they do learn of their cancer, they now enter the perceived injurious experience stage by naming the problem. However, not all these cancer victims will necessarily connect their cancer to the nuclear test site. Those who do make this connec- tion now enter the grievance stage by blaming the problem on the nuclear test- ing. More generally, the grievance stage occurs when a person decides that another party (individual or organization) is responsible for the injury the person has suffered. The person must feel both that a wrong has been com- mitted and that the wrong should be remedied. If and when the aggrieved party communicates the grievance to the offending party, the problem then enters the dispute stage through a process of claiming.

Despite the differences between them (for example, the dispute stage in the latter typology is equivalent to the conflict stage in the first typology), the two typologies both remind us that an aggrieved party must make three key decisions: (1) whether a situation is unjust, (2) whether to confront the offend- ing party with the problem, and (3) whether to take the problem to a third party if the two disputing parties cannot resolve the problem. As we will see in the next section, many aggrieved parties decide not to confront the offending party at all, or, if they do, to proceed no further if a resolution cannot be reached.

Methods of Dispute Processing

Although there are innumerable kinds of disputes, there is a smaller, finite number of procedures for dealing with disputes once they arise. “Sue the bastard” is a term often heard in the United States, but litigation is in fact just

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one of seven ways of handling a dispute. As we shall see, the method a soci- ety tends to favor depends on several factors, including the society’s legal culture and structure of relationships. Each method has certain advantages and disadvantages, and whether a society favors one method or another depends on its assessment of whether the method’s advantages outweigh the disadvantages or vice versa. Within a given society, the method an individual favors also depends on several factors and the individual’s assessment of the method’s advantages and disadvantages. With this brief foundation in mind, we now turn to the methods of dispute settlement as identified and discussed by anthropologists and other scholars (Felstiner 1974; Gulliver 1979; Nader and Todd 1978a). In order of presentation, they are (1) lumping it, (2) avoidance, (3) coercion, (4) negotiation, (5) mediation, (6) arbitration, and (7) adjudication.

Lumping It. One way of dealing with a dispute is simply to ignore it by tak- ing your lumps, or lumping it. If there was a one-time matter that led to your grievance, you just let it go; if there is a continuing problem, you just decide to live with it the best you can. If the students in the dorm room next to yours are too noisy one night, you might decide to lump it by putting on your head- phones or using ear plugs. If your partner ticks you off one day with an insen- sitive comment, you might decide to let it go rather than respond in kind. If you just spent $85 at the grocery store and find when you get home that they forgot to pack the onion you paid for, you might decide to just forget about the onion rather than taking the time and spending the gas to drive back to the store to claim your onion. No doubt you can come up with many exam- ples in your own life where you decided to “lump it” when some problem occurred and you felt you had a legitimate grievance.

Several factors affect whether or not we decide to lump it when a dis- pute occurs. One factor, which might be evident from the example of the onion, is that problem is simply not important or serious enough to address. If the noise in the dorm room next door is a one-time event as the example above suggested, you might lump it, but if it becomes a continuing problem, then your grievance has become more serious and you will probably decide that you can no longer ignore it. If the grocery store clerk forgot to pack your onion, that cost you very little money and, after all, it is only an onion. But what if the item the clerk forgot to pack was an expensive bottle of cham- pagne that you had intended to use at a romantic dinner that very night? Between the expense of the champagne and your urgent need for it, lumping it will probably make no sense, and, assuming you have the time, you may well drive back to the grocery store to reclaim your bubbly.

Another factor that affects whether we decide to lump it when a prob- lem occurs is the extent of the power difference between the two disputants. If one of the two disputants has much less power than the other and thus may suffer various consequences if he or she does not lump it, then lumping is more likely to occur. Say, for example, that you are spending your summer

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serving food at an upscale restaurant. You are making very good tips, but the restaurant manager is obnoxious and condescending without doing any- thing, like sexual harassment, that is illegal. You realize that if you complain to the manager or to the restaurant owner about the manager’s conduct, you risk losing your job. Under these circumstances, you may well decide to lump it by choosing to live with the manager’s boorish behavior. Differences in physical prowess may also matter: a woman who is being beaten by her husband or boyfriend may decide not to seek help because she fears being beaten yet again if she tries to do anything.

Avoidance. A second way of dealing with a problem is to practice avoidance by ending the relationship that produced the problem or by physically removing yourself from the situation or location in which the problem is located. Whereas lumping it allows a dispute to continue by basically ignor- ing the dispute, avoidance deals with a dispute by ending it, or, more pre- cisely, by ending the relationship or situation producing the dispute. In the noisy dormitory room example discussed just above, avoidance would involve your moving to another room on the same floor, on a different floor, in a different dormitory, or off campus. In the grocery store example, avoid- ance would involve never shopping again at the store where the clerk forgot to pack your onion or champagne. In the restaurant example, avoidance would, of course, involve quitting your job. Separation and divorce are avoidance to deal with a bad marriage, and “breaking up” is the analogous avoidance for a nonmarital romantic relationship that is no longer working.

Several factors similar to those affecting lumping-it decisions again affect whether we decide to practice avoidance when a dispute occurs. If the problem is not very serious, we are not likely to undertake avoidance. In the dorm room example, you probably would not consider moving away unless the noise continued for many nights and no other method of dispute pro- cessing (see below) offered any hope. In the grocery store example, an unpacked onion is less likely than an unpacked bottle of champagne to prompt you to decide never to shop at the store again. One minor tiff is not apt to end a marriage or romantic relationship, but a more serious or contin- uing problem, such as a spouse having an affair, may well do so.

Another factor affecting avoidance decisions is the need for a relation- ship or situation to continue. In the restaurant example where you are earn- ing a lot of money but labor under a boorish manager, you are less likely to practice avoidance by quitting your job than if you had the same problem at a fast-food restaurant where you were making minimum wage. If you are deeply in love, you are less apt to end a romantic relationship once some problems arise than if your feelings are less intense. If the grocery store that caused your problem is the nearest store or offers consistently lower prices than other nearby stores, you are less likely to refuse to shop there again than if other stores were reasonable options. For several reasons, then, avoidance is often not a practical option.

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Note that some societies deal with a troublesome individual by forcibly removing the individual from the society. The extreme form of such avoid- ance is, of course, execution, a common practice in China (see Chapter 3) and one that is found only in the United States in the Western world. Many soci- eties have practiced forms of avoidance by banishing or shunning a per- ceived offender. As the previous chapter discussed, a few Native American communities began banishing drug abusers and other offenders earlier this decade in an effort to deal with rising problems of drug use and crime. The classic literary example of shunning is Nathaniel Hawthorne’s The Scarlet Letter, in which young Hester Prynne in seventeenth-century Puritan society had to wear the scarlet letter ‘A’ and was treated like a pariah for having committed adultery.

Coercion. Lumping it and avoidance are common ways of dealing with various disputes, but neither method attempts to resolve the dispute to the satisfaction of the aggrieved party. In this sense, the other party “wins” the dispute because the aggrieved party either lives with the dispute by lump- ing it or leaves the relationship or situation spawning the dispute. Although disputants may choose lumping it or avoidance for the reasons we have seen, many quite naturally do not desire either outcome and will prefer to actually address the dispute with one or more of the remaining methods of dispute processing.

For better or worse, a common such method is coercion. As its name implies, coercion (also called self-help) involves the use of threats or pressure to compel a change in someone’s behavior or thinking. The use or threat of phys- ical force (interpersonal violence) comes most readily to mind as an example of coercion, but other kinds of coercion exist and include ridicule, divulging a secret (as through gossip or “ratting out” somebody), and blackmail. Coercion may be an attempt to deal with a dispute, but by trying to force an outcome it does not address the underlying reasons for a dispute and may well aggravate the problem rather than alleviating it (Nader and Todd 1978a).

The likelihood of engaging in coercion depends on several factors; some relate to the circumstances of a dispute and others relate to characteris- tics of the disputants. One circumstantial factor is the seriousness of the grievance underlying the dispute. Just as a less serious grievance may lead a disputant to lump it, a more serious grievance may prompt an attempt at coercion, as it is more likely to produce anger, annoyance, and other emo- tions that underlie coercion. To return to our noisy dorm room example, one night of noise might be easy to ignore, but repeated nights are more difficult to ignore. As we saw, avoidance is a more likely outcome than lumping it under this circumstance, but so is coercion. You might turn up the volume on your own music and have a bout of “speaker wars,” but you might also threaten the offending residents next door with physical harm to their per- sons, their music equipment, or some other possession. It is difficult to imag- ine someone resorting to violence or other coercion just because a grocery

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store forgot to pack your champagne, but in theory, at least, such a response is more likely when an expensive bottle of champagne is at issue than a mere onion. It is also difficult to imagine a restaurant server with an obnoxious manager resorting to coercion, but it at least stands to reason that coercion is more likely if the manger ’s behavior is so obnoxious that your temper might flare.

Because interpersonal violence is a key topic in the field of criminology, sociologists, psychologists, and other scholars have tried to understand why such violence occurs. The literature on this subject is voluminous, and details are beyond the scope of this discussion. Generally, sociologists cite the importance of social background factors such as geographical location, gender, social class, age, and race for the use of interpersonal violence (Eller 2006; Holmes and Holmes 2004; Zahn, Brownstein, and Jackson 2004), while psychologists cite authoritarian personalities and other personality traits that make some individuals more likely than others to be aggressive (Car- rasco et al. 2006; Ehrensaft, Cohen, and Johnson 2006). These personality problems begin because of inadequate parenting and perhaps genetic and other biological factors and can persist into adolescence and beyond. In some individuals, aggressive tendencies are thought to be so extreme that they suffer from intermittent explosive disorder, which causes them to lash out in an uncontrollable rage. A recent study estimated that 7.3 percent of Amer- ican adults have experienced this disorder at least once in their lifetimes (Kessler et al. 2006).

Negotiation. Like coercion, negotiation is another method of trying to resolve disputes. Unlike coercion, negotiation does not seek to force an out- come. Instead, it involves discussions between the two disputing parties in which they try to persuade one another of their way of thinking about the grievance underlying the dispute. Sometimes, one disputant will persuade the other disputant to completely change the behavior or situation that led to the grievance, but often negotiation succeeds in resolving a dispute because the disputants are able to forge a compromise outcome in which both parties win a little and lose a little but can each be sufficiently happy with the result. Although we discussed lumping it, avoidance, and coercion before turning to negotiation, negotiation may well be the first method of dispute process- ing that a disputant attempts. If it fails to resolve the dispute, then one or more of the other methods may be the next recourse.

Negotiation is easier to contemplate and more likely to succeed in some situations than in others. In the noisy dormitory room example, many students bothered by the loud music would probably simply ask the music players to turn down the volume. The latter may do so immediately or ask whether it would be okay to play the music for another ten or fifteen min- utes until a set of songs ends, and the aggrieved students may then say that would be okay. In this ideal situation, the disputing parties have quickly negotiated an outcome that apparently satisfies both parties. Obviously, the

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loud music players may resist any such solution; if so, the aggrieved stu- dent(s) would then have to decide which method of dispute processing would next make sense. In the grocery store champagne example, negotia- tion would involve simply returning to the store, receipt in hand, and asking for your bottle of champagne. A problem might arise, however, if the grocery store does not believe that you failed to receive your champagne or if you no longer have your receipt. In either case, the negotiation is not so simple, and you may have to use your best persuasive powers to finally obtain your pur- chase. In the obnoxious restaurant manager example, negotiation would involve your talking directly with the manager and asking for a change of behavior. As noted earlier, many servers in this situation will be very reluc- tant to undertake this step, either because they dislike confrontations of this type or because they fear being fired. They may also feel that the obnoxious manager is unlikely to change her or his personality and thus that any such negotiation will prove futile.

As these examples suggest, at least three factors affect whether we are willing to try to negotiate a settlement of a dispute. First, some situations have certain circumstances that lend themselves more or less readily to negotiation. Second, and related, power differences between the disputants may matter: a disputant with less power may fear retaliation by the dis- putant with more power and thus be less willing to negotiate (and more likely to lump it). Third, some people are bolder or have other personality traits that make them more willing to try to negotiate (which, even if it goes well, does involve an element of confrontation).

Mediation. Mediation is the first of the methods discussed so far to involve a third party, a significant feature to scholars of dispute processing. Both dis- putants must agree to mediation in advance, and the mediator tries to help the disputants reach some resolution, usually through a compromise that both parties will regard as a win–win outcome. However, either party is free to decline any solution or change in thinking or behaving a mediator might suggest, and mediation often does not succeed in resolving a dispute. Medi- ation is a common and even predominant practice in many premodern soci- eties but is also found in modern ones. The mediator may be someone that both parties know and trust, a stranger who is considered particularly wise or perceptive and therefore likely to be a good mediator, or someone in a position of authority. Regardless of the mediator ’s relationship, or lack of same, to the disputants and any good qualities the mediator may have, it is essential that the disputants consider the mediator impartial. The mediator’s typical search for a compromise solution in turn reinforces the parties’ belief in the mediator’s impartiality.

In an influential essay, Torstein Eckhoff (1969), a Norwegian law pro- fessor, wrote that a mediator may use several strategies to help disputants reach an agreement. One strategy is to have the parties recognize their common interests and to deemphasize their competing interests. Another strategy is

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to come up with possible solutions that the disputants may not have previ- ously considered. Because the mediator is considered impartial, these possi- ble solutions may carry some weight with the disputants. A third strategy, which is possible only in certain circumstances, is to promise to help the par- ties in the future if they can resolve their dispute or threaten to take the side of one of the disputants if the other does not agree to a resolution. (Here one might think of the many movies or TV shows about organized crime in which a “boss” calls together the heads of two warring factions and simulta- neously encourages them to set aside their differences while threatening retaliation to any faction that does not do so.) However, this strategy is risky, Eckhoff added, because a party who is pressed to agree to the mediator ’s proposed solution may begin to regard the mediator as biased toward the other party. If the mediator’s impartiality is called into question for this rea- son, her or his effectiveness in helping the parties achieve a compromise solution is weakened.

We mentioned earlier that scholars regard the presence of a third party to be a significant dimension. That is because the involvement of a third party takes the dispute beyond the two disputing parties and, therefore, brings it to the attention of people other than the disputants themselves. In this way, the dispute becomes more public than it was before. The need to enlist the help of a third party also signifies that the disputing parties are incapable of resolv- ing the dispute by themselves, and they may not wish other parties to hold this perception. For these reasons, some disputants may prefer not to use mediation despite its possible help in resolving their dispute.

Like negotiation, mediation makes more sense and is more possible under some circumstances than under others. A married couple that is having problems may turn to a friend, relative, member of the clergy, or marriage counselor for help. The noisy dorm room example is another one in which mediation is possible. If the two parties, the student playing the loud music and the student finding it too loud, fail to negotiate a mutually satisfactory outcome, or if the aggrieved party simply does not want to bother with nego- tiation, they may turn for assistance to a dormitory officer, often called a resident assistant, who will then try to help the parties work things out. Medi- ation by an individual is less conceivable in the grocery example. If the store does not provide the customer with a bottle of champagne, it is unlikely that any individual could be called in to mediate. Instead, the customer may con- tact the local Better Business Bureau or Chamber of Commerce, with either organization then serving as a mediator. In the restaurant manager example, a likely mediator would be the restaurant owner if (and this might be a “big if”) the server were convinced of the owner’s impartiality.

Arbitration. Arbitration is a common method of dispute processing in many premodern societies but is also present in their modern counterparts. In the United States, arbitration is a common method for addressing disputes between labor and management in business, industry, and academia

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(O’Meara 2002). As a method of dispute processing, arbitration is similar to mediation in two ways. First, it involves a third party with whom the dis- putants consent to meet in an attempt to resolve their dispute. Second, this third party, an arbitrator, is expected to be impartial and also to consider all the facts and other circumstances of the dispute. However, arbitration differs from mediation in three other respects. First, an arbitrator devises her or his own resolution after considering the disputants’ claims, whereas a mediator works with the disputants to come up with a resolution. Second, the dis- putants agree beforehand to abide by the arbitrator ’s decision (hence the popular term “binding arbitration”), whereas either disputant in mediation is free to refuse a solution a mediator may propose. Third, the arbitrator ’s resolution is often a win–lose outcome, whereas the resolution reached via mediation is, as noted earlier, typically a win–win compromise solution. Thus, an arbitrator decides that one party is right and the other party is wrong, with the former winning the dispute and the latter obviously losing it.

Because arbitration involves a third party, it has the same implications for a dispute as discussed earlier for mediation. In particular, the dispute becomes more public than it was before, with the resulting perception that the disputing parties are incapable of resolving the dispute by themselves. As with mediation, these consequences may lead some parties to reject arbi- tration. An additional consequence may also lead to rejection of arbitration: the win–lose outcome that arbitration entails. Because the disputing parties realize that one of them will lose if their dispute becomes arbitrated, one or both may wish to avoid arbitration and instead try to work out their differ- ences via negotiation or mediation or force an outcome with coercion.

Adjudication. The final method of dispute processing is adjudication, in which the third party, the judge, “has the authority to intervene in a dispute whether or not the principals wish it” (Nader and Todd 1978b: 11). This is the key feature that distinguishes adjudication from arbitration. In other respects, adjudication is similar to arbitration in that the third party is expected to be impartial and, more important, imposes a win–lose outcome on the disputants. But whereas one or both disputants may decline arbitra- tion (or mediation) for the reasons discussed earlier, neither is free to decline adjudication once the adjudicative process has begun. Thus, if you are involved in a dispute with someone, and your antagonist brings a lawsuit against you, you are not free to decline to be sued. Instead, you have to respond with appropriate legal actions. A judge may eventually dismiss the suit, but only after you (or, assuming you have legal representation, your attorney) file the necessary papers and makes the necessary arguments to convince the judge that the suit should be dismissed.

Not every dispute qualifies for adjudication, and certain requirements must be satisfied for a case to be adjudicated. First, a case can be heard by a court only if the court has jurisdiction over the case because the case both occurs in a geographical location and involves a subject matter that a

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particular court is authorized by law to hear. For example, a dispute must involve a matter of federal law for a federal court to hear it; otherwise it must be heard by a state or local court. Second, the case must involve an issue or matter that is justiciable. Justiciability is a complex concept but basically means that the case involves an issue that is appropriate for the courts to hear. To take a silly example, if a professional baseball player sued an umpire for calling him out on a close play at home plate, a judge would almost cer- tainly dismiss the suit on the grounds that it did not involve a justiciable matter. To be justiciable, a case must involve an actual dispute between two parties rather than a hypothetical dispute and a dispute that is “ripe” rather than “moot.” In effect, this latter element means that a controversy must have actually developed and still be ongoing for it to be justiciable. If you sue a neighbor for building a fence on your lawn but then move away while the suit languishes in the courts, a judge may decide to dismiss your suit because the issue is no longer ripe.

The third requirement for adjudication is standing (sometimes called legal standing). For a party to bring a dispute to a court, that party must have standing to do so. This means that the party must be actually involved in the dispute or have a right or interest directly affected by the dispute. The requirement of standing has played a key role in environmental law, because endangered species, for example, obviously cannot sue on their own behalf. It might seem to make sense that environmental groups should be allowed to sue on the behalf of endangered species, but the standing requirement has sometimes made it difficult for the groups to do so (Echeverria 2003).

Adjudication is an important feature of modern societies, but it is also found in premodern societies that obviously lack courthouses and other legal trappings but still have procedures in which one or more people serve as judges to hear disputes and impose a decision. However, it is in modern soci- eties and especially in the United States that adjudication has aroused contro- versy because of its perceived costs in time and money. We return to this issue below in our focus on the United States, but consider, for example, a situation in which you are sued. In our complex legal system, you almost certainly will feel it necessary to hire an attorney, but legal representation can obviously be quite expensive. This fact may prevent you from hiring an attorney and force you to lose the suit, or may at least limit the fees you can afford to pay the attorney and thus the extent and quality of the legal help you get. For these reasons, adjudication can favor the party with greater financial resources, even though adjudication is often thought to level the playing field, as the familiar blindfolded statue of Lady Justice signifies (see http://www.statue .com/lady-justice-statues.html), by offering an impartial forum for dispute processing. As you probably realize, adjudication can also be very time con- suming, and victory may well go to the party—again often the one with greater financial resources—who can simply afford to outwait the other party.

Adjudication has at least one other cost that is also present in arbitration and that is captured in Eckhoff’s (1969:175) observation that the judge’s “task

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is not to try to reconcile the parties but to reach a decision about which of them is right.” Thus, adjudication results in a win–lose outcome in contrast to the win–win outcome ideally achieved by mediation. As a result, adjudication does not really address the causes of the dispute and may well worsen the relationship between the parties. In particular, say anthropologists, the losing party in adjudication is more likely than parties that undergo negotiation or mediation to dislike the outcome and to bear a grudge against the other disputant. Thus, whereas negotiation and mediation can help reconcile the disputants, adjudication may further estrange them and may worsen the sit- uation that led to the adjudication. Recall from the previous chapter that pre- modern societies often favor reconciliation over punishment. When they process disputes, many premodern societies thus tend to favor negotiation and mediation over adjudication because the former methods are more likely than the latter to produce the reconciliation these societies favor.

The expense, time, and estrangement that adjudication often involves has led various groups in the United States to promote alternative dispute resolution (ADR), which attempts to resolve disputes without resort to adju- dication. We discuss ADR below, but note here that it tries to achieve in American society what premodern societies ideally have achieved through their reliance on negotiation and mediation.

EXPLAINING DISPUTE PROCESSING DECISIONS

Sociolegal scholars have identified several sets of factors that help explain preferences for one or more of the methods of dispute processing just exam- ined over other methods. In doing so, they try to answer two related ques- tions: (1) Why do some societies favor mediation (or some other method) more than other societies? and (2) Why do some individuals favor one par- ticular method more than other individuals? Societal factors help answer the first question, while individual factors help answer the second question. We now turn to these two kinds of factors.

Societal Factors

Societies differ in certain aspects of their structure and culture, and these dif- ferences help explain differences among societies in their preferred methods of dispute processing.

The Structure of Social Relationships. Anthropologists stress the importance of the nature of social relationships in a society for its dispute processing preferences (Gluckman 1955; Nader and Todd 1978a). As Chapter 3 dis- cussed, people in the traditional societies studied by anthropologists tend to know each other very well and to value their close relationships. They are very group-oriented and thus tend to favor reconciliation and compromise outcomes in the settlement of disputes. This means that negotiation and

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mediation are more likely than adjudication to be the preferred methods of dispute processing.

As Nader and Todd (1978b:12) observe, “[T]he nature of the relationships in which litigants or disputants are involved will affect the manner in which they attempt to manage the problem.” Following this logic, a major reason for the preference of traditional societies for negotiation and mediation rests on the nature of their social relationships. In these societies, one individual will know another individual in multiple ways: he or she will be the individual’s relative by birth or marriage, a neighbor, a member of a hunting or gathering party, and so forth. Such societies are said to be characterized by multiplex relationships. Because any two individuals in such societies literally see one another every- day and interact in many roles, it is important that their relationship continue beyond any particular dispute that might develop between them. This empha- sis on enduring relationships in turn promotes compromise outcomes and thus negotiation and mediation as dispute processing preferences. Nader and Todd (1978b:13) summarize this dynamic as follows: “Relationships that are multi- plex and involve many interests demand certain kinds of settlement, such as compromise, which will allow the relations to continue.”

In contrast, large societies such as the United States are filled with people who do not know each other at all or know each other in only a relatively superficial context: an individual is your cashier at the local supermarket, your plumber, your server at a restaurant, and so forth, but nothing else. These soci- eties are said to be characterized by simplex relationships. If you have a dispute with these individuals, you probably do not care whether you continue to have any relationship with them afterward. Because these societies thus lack an emphasis on enduring relationships, they care less about compromise out- comes (and thus about negotiation and mediation) and are more likely to favor win–lose outcomes (and thus arbitration or adjudication).

Although multiplex relationships make negotiation and mediation more likely, they do not guarantee them for at least three reasons (Nader and Todd 1978b). First, the very intensity of multiplex relationships may give rise to especially intense disputes that cause the parties to lose any interest in continuing their multiple relationships and thus any interest in a negotiated or mediated outcome. Second, and on the other hand, a multiplex relation- ship may help keep an initial disagreement from rising to the level of a dis- pute that needs negotiation or mediation. Finally, when scarce resources (such as land or livestock in a premodern society) are at issue, disputants may decide that the importance of the scarce resource outweighs the impor- tance of the continuing relationship and thus seek a win–lose outcome through coercion, adjudication, or arbitration rather than a comprise out- come through negotiation or mediation (Starr and Yngvesson 1975).

Power and Inequality. In many small, homogeneous societies, some individ- uals have more power and influence than others, but most members are fairly equal in this regard, and most members live in the same economic

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circumstances, that is, poverty or near-poverty, or perhaps even on the edge of starvation. Other small societies have less equality of this type, with some lineages, or family groupings, ranking higher than others in terms of wealth, prestige, and influence. Overall, though, small societies are relatively unstratified, to use a sociological term, compared to large, heterogeneous societies like the United States. In these societies, many individuals have much wealth, power, influence, and other advantages, while the mass of the citizenry enjoy fewer resources of this type. Larger societies, then, tend to have more wealth and power inequality than small societies.

How and why does the level of stratification affect a society’s dispute processing preferences? As the earlier discussion of adjudication indicated, wealth and other resources can make a significant difference in the outcomes of adjudication. Individuals and groups with such resources can use the courts to their advantage and, more specifically, use the courts to the disad- vantage of parties without wealth and power. Thus, even though the law may sometimes act to equalize power differences as described earlier, Nader and Todd (1978b:21) observe that “the weight of law as equalizer appears light in comparison to the power derived by the already powerful from routine actions of law.” Recognizing this dynamic, the many more numerous power- ful individuals and groups in large societies will be inclined to “manipulate legal means for their exclusive advantage” (Nader and Todd 1978b:21) and to use adjudication. In contrast, because power is more evenly distributed in small societies, there is overall less inclination to use adjudication because there are fewer individuals with significantly greater power. Adjudication is less common in small societies, then, not only because they have multiplex relationships but also because they have relatively little stratification.

Legal Culture. A final societal factor is legal culture, which refers to a society’s general views about the law and specific dimensions of the legal system and its perceptions about using the law to address disputes (L. M. Friedman 1969; Nelken 2004). A key perception here is whether it is appropriate and even desirable according to a society’s cultural values to use adjudication when a dispute arises, or whether it is wrong to do so. The idea that a culture may consider it wrong for moral or other reasons to use the courts may be incomprehensible to many Americans, accustomed as we are to lawsuits and other kinds of litigation. However, the view that litigation is indeed wrong for moral or other reasons characterizes many traditional societies, partly because of their emphasis, discussed above, on enduring relationships. This view also characterized many communities earlier in American history, a point to which we return later in this chapter. Here, we briefly discuss one traditional society, a Sunni Muslim village in Lebanon, and one larger soci- ety, Japan, to illustrate how their legal cultures often prompt them to reject adjudication as a method of dispute processing.

Anthropologist John E. Rothenberger (1978) conducted field work in Qarya, a remote Sunni Muslim village in the Northern Lebanon mountains,

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during 1966 and 1967. The village had about 1,100 residents and an agricul- tural economy. It had a mayor, the mukhtaar, but no other form of govern- ment; the nearest national courts were almost an hour away by motor vehi- cle and the nearest police also a distant drive. Rothenberger (1978:164) found that the villagers strongly preferred negotiation and mediation, either by a family member, the mukhtaar, or another respected villager, over adjudica- tion by a national court, with 98 of the 105 disputes he studied processed in this fashion.

This strong preference derived from two beliefs. First, the villagers felt that their community would have little say in the resolution of a dispute if it ended up in a national court and that the Lebanese police and judges were too unpredictable. Second, they placed great emphasis on enduring relation- ships: “There is a clear recognition of the importance and necessity of ongo- ing relationships within the community. The villagers of Qarya have known each other all their lives and will continue to deal with each other for the rest of their lives. All but a very few of the villagers handle their affairs in a way that indicates recognition of this principle” (Rothenberger 1978:165). These two beliefs in Qarya’s legal culture, then, help explain why this small society favored mediation and negotiation over adjudication.

Note that Qarya’s emphasis on enduring relationships and distaste for adjudication derived from its small population size and resulting multiplex structure. This process raises the question of which factor, structure or cul- ture, is more important in explaining Qarya’s dislike of adjudication and, more generally, the similar distaste found in other traditional societies. Some scholars discount the importance of culture in this regard and say that the structure of relationships is the key factor (Kidder 1983), while other scholars highlight culture as the key factor (Bracey 2006). This is an important theo- retical debate for which there is no clear answer, and many scholars take an eclectic view in saying that both structure and culture matter for a society’s preference for mediation and negotiation versus that for adjudication.

Japan is certainly not a small society, but some scholars say it also has a legal culture that leads its residents to shun adjudication in favor of other methods of dispute processing. In a classic article, Takeyoshi Kawashima (1969) observed that Japan has relatively little litigation and a relatively low number of attorneys even though it is an industrial society. As an example, he cited two Japanese railroads that were involved in more than 500 traffic accidents in 1960. None of these accidents resulted in any litigation, and in only three of these accidents did the injured party hire an attorney. Kawashima argued that the time and cost of litigation could not explain Japan’s low rate of litigation, since other industrial societies have more liti- gation despite its time and expense. Although he acknowledged that Japan’s low monetary damages for traffic accident injuries may play a role in its lack of accident-related lawsuits, he wrote that a “more decisive factor” (p. 184) lies in Japan’s legal culture: “Traditionally, the Japanese people prefer extra- judicial, informal means of settling a controversy.” They do so because, as

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we have seen, litigation “admits the existence” (p. 185) of a dispute, high- lights conflict between the disputing parties, potentially jeopardizes a rela- tionship, and involves a right/wrong decision in which the disputants have no say.

These characteristics of litigation apply in other societies, but the Japanese culture, wrote Kawashima, prompts them to dislike adjudication so much that the Japanese tend to avoid the courts in situations where more Americans would be ready to litigate. Kawashima cited certain aspects of Japanese society and culture that underlie this distaste. First, the Japanese culture emphasizes respect for and deference to authority, and such respect and deference characterize most relationships; for example, a renter is expected to defer to a landlord and a seller is expected to defer to a buyer. At the same time, the higher-ranking party is expected to be gracious toward the lower-ranking party and to respond to any legitimate concerns. Because adjudication theoretically puts both disputing parties on the same footing and because it challenges the views or interests of the defendant party, litiga- tion is incompatible with the norm of deference. Second, the Japanese cul- ture emphasizes relationship harmony. As Kawashima (1969:186) put it, “There is a strong expectation that a dispute should not and will not arise; even when one does occur it is to be solved by mutual understanding.” For this reason, when disputes do arise, many Japanese will be rather quick either to apologize for or to forgive a perceived wrong.

This twin emphasis on deference and harmony leads the Japanese to think litigation is “morally wrong, subversive, and rebellious,” wrote Kawashima (1969:186). He added that the Japanese culture similarly affects contractual relationships, as a strong expectation exists that parties to a con- tract not become involved in any serious disputes, let alone a lawsuit. The Japanese are often even reluctant to insist on a contract before entering into a formal arrangement because doing so would imply a lack of trust and a con- tentious personality.

A vivid example of the Japanese aversion to litigation was seen in the aftermath of mercury poisoning by factories of some Japanese villages’ waterways during the 1950s and 1960s. Although many villagers eventually became sick and deformed and some died from eating contaminated fish, many victims refused to sue the companies and instead either did nothing (lumped it), accepted mediation by the national government, or relied on direct negotiations with the companies that polluted their waterways. A study of this experience attributed the reluctance to sue to several factors, including a fatalistic attitude and shame over the disease and physical defor- mities caused by the mercury poisoning. But another factor was the tradi- tional Japanese reluctance to litigate and the perception that anyone who did sue was acting selfishly and too assertively (Upham 1976).

Some scholars minimize the importance of Japanese culture in explaining its lack of lawsuits and instead point to other factors. Calling Kawashima’s thesis the “myth of the reluctant litigant,” one scholar attributed Japan’s

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low litigation rate to a lack of attorneys and judges and not to the cultural factors Kawashima highlighted (Haley 1978). The contrasting experience of the contaminated Japanese villages in the example just discussed is instruc- tive. Although the members of one village, Minamata, were very reluctant to sue, the residents of the other, Niigata, filed lawsuits in great numbers. This contrast, says sociologist Robert L. Kidder (1983), indicates that the Japanese as a whole are not reluctant to sue when the need arises and that Kawashima’s cultural argument is off target. How then to explain the differ- ence in the experience of the two villages? Kidder notes that Minamata was a “company town” in that the factory that polluted its waterway provided many jobs for the villages’ members, while Niigata lived some distance from the factory that polluted its river and otherwise had little connection with the factory. If so, he adds, the reluctance of Minamata victims to sue stemmed from two factors: (1) their fear that the factory’s corporate owner would fire employees or take other punitive actions (which it had already threatened to do) if the victims did sue and (2) the multiplex relationships that Minamata residents enjoyed with factory officials since they all lived in the same small area.

In further discounting the importance of culture, Kidder (1983) dis- cussed examples of the reluctance of Americans to sue or otherwise use the law when we might expect them to do so. One poignant example involved a flood of the Buffalo Creek, West Virginia mining community in 1972 that killed 125 people and left more than 2,500 others homeless (Erikson 1976). The flood was caused by the bursting of an artificial dam composed of mine waste that violated federal safety regulations. Although the mine company’s gross negligence led to much death and tragedy, many Buffalo Creek sur- vivors were very reluctant to sue the company. Many believed the com- pany’s claim that the flood was an unavoidable accident and trusted it to take care of them. When the company failed to come to their aid, some but by no means all of the survivors finally joined a lawsuit against the company. The remaining survivors accepted their fate and thought those who joined the lawsuit went too far. Citing this example, Kidder (1983:47) observed that Americans are not “trigger-happy about invoking the law” and thus are not so different from the Japanese after all. We return to this critique below in our discussion of the American legal experience but reiterate that many scholars think culture does matter in explaining societal differences in the willingness to litigate.

In an interesting sidelight, Japan’s litigation rate increased rapidly dur- ing the 1990s, some three decades after Kawashima (1969) wrote his classic article, even though it still remains relatively low in international compar- isons. It is not clear whether this increase reflects an ebbing of Japanese respect for authority and emphasis on harmony, or instead, as some scholars believe (Ginsburg and Hoetker 2006), an increase in the number of lawyers and, especially, procedural reforms that made it easier and more attractive to litigate.

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Individual Factors

Even if a society favors or opposes a method of dispute processing for the many reasons just discussed, it is also true that people within that society will differ in the methods they like or dislike. That is because people within a given society differ from each other in ways that affect their willingness to use one method or another. Our earlier discussion of dispute processing methods outlined some of these differences; in this section, we discuss this issue more systematically, if briefly, by focusing on individual-level factors that correspond to the societal ones just examined. For the sake of argument, we acknowledge that the importance and seriousness of a dispute obviously matter, but in the following discussion hold these dimensions constant to answer the following question: Given disputes that are equally important and serious, why are some individuals in a particular society more or less willing than other individuals to use certain methods of dispute processing?

The Nature of the Relationship. Our earlier discussion highlighted the importance of the relationship between two disputants for the methods of dispute resolution they favor. If they are involved in a close or multiplex relationship where they will ordinarily want that relationship to continue or at least not want to cause difficulties in future interaction, the aggrieved party will be less likely to adjudicate and more likely to try negotiation or mediation but also more likely just to lump it (Black 1976). If you have a problem with your plumber but the plumber is also your brother-in-law or sister-in-law, taking your plumber to court could cause all kinds of family problems that you would rather avoid. On the other hand, if the two dis- putants have only an impersonal, simplex relationship, the aggrieved party will be more likely to adjudicate or perhaps to practice avoidance. If your plumber is just your plumber, you do not care about an enduring relation- ship; accordingly, you might not call the plumber again, and you may even go to small claims court.

Note that a close or multiplex relationship might also prevent other uses of the law, since an individual’s expressed desire to use the law may indicate distrust in another individual. For example, what would happen if you pro- pose marriage to someone (or are proposed to), and the next words out of your mouth are that you want a prenuptial contract? What would your intended spouse think of you at that moment? What does your wish for a “prenup” imply? Why would your desire for a prenuptial contract lead to more hurt feelings in this regard than your desire, say, for example, for a contract with a carpenter you want to hire to work on your home? How does this scenario help you understand the importance of the nature of the relationship?

Power Differences in the Relationship. Our earlier discussion also high- lighted the importance of power differences in a relationship. If the aggrieved party has less wealth, power, influence, eloquence and the power

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of persuasion, or some other important resource than the offending party, the aggrieved party will be more likely to lump it or to practice avoidance than to address the dispute more proactively. Aggrieved parties in this posi- tion will do so either because they fear retaliation (e.g., being fired, to recall the boorish restaurant manager example) or because they perceive that the offending party will win the dispute if the aggrieved party does proceed proactively.

By the same token and for corresponding reasons, an aggrieved party with significant advantages in a relationship will be less likely to lump it or practice avoidance and more likely to use adjudication. As noted earlier, even though the legal system ideally puts disputants on an equal playing field before an impartial judge, in practice it favors the party with greater wealth and other advantages. Such parties are, moreover, likely to be “repeat players” in the legal system and thus to have more knowledge of how the law works and other legal advantages (Galanter 1974), increasing their will- ingness to use adjudication. (We return to this point in Chapter 7’s discus- sion of law and inequality.)

Finally, when the disputing parties are of roughly the same status and have equal resources, they are more likely to rely on negotiation or media- tion. Neither party has sufficient advantages to make adjudication an attrac- tive method; by the same token, neither party has sufficient disadvantages to make lumping it or avoidance the only viable options. In general, the level of resources a disputing party enjoys may make a difference from the very beginning of the disputing process. If, as discussed earlier, significant steps involve the decisions to blame an offending party and to confront the party, some people are more likely than other people to make these decisions because they have higher levels of education, greater wealth, more self- confidence, and other resources conducive to more proactive approaches in dispute processing.

Personality. A third individual factor affecting dispute processing prefer- ences is personality, or temperament, consisting of an individual’s cognitive and emotional traits (Heen and Richardson 2005). Some people tend to be rather meek and submissive, others tend to be rather assertive and even overbearing, and many of us fall in between these two extremes. When a dis- pute arises, those on the meek end of this spectrum are, all things equal, more likely than those on the assertive end to lump it or practice avoidance. By the same token, those on the assertive end will be more likely to practice coercion or to use adjudication.

Sociodemographic Factors. Social class and race/ethnicity have also been examined as possible factors that affect the willingness to litigate (Seron and Munger 1996). Early research relying on survey evidence found that the poor were less likely than wealthier people to use the courts when problems arose and attributed this difference to the poor’s lack of knowledge about the law

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and legal rights, their lower economic resources, and their sense of hopeless- ness induced by their poverty (Abel 1973; Carlin, Howard, and Messenger 1966; Levine and Preston 1970; Mayhew and Reiss 1969). Because people of color are disproportionately poor, they, too, were considered less likely to use the courts for similar reasons (Merry 1979; Moulton 1969).

However, recent research yields a more complex picture (Silbey 2005). One branch of this research confirms that the poor and people of color are indeed less likely to use lawyers and the courts but attributed this more to the kinds of problems these citizens experience rather than to the reasons just described (Engel 1984; Miller and Sarat 1980–1981; Silberman 1985). Relying on ethnographic fieldwork and intensive interviewing, a second branch of this research found low court use overall and few, if any, differ- ences by social class and race/ethnicity (Bumiller 1988; Greenhouse 1986; Merry and Silbey 1984). In view of these conflicting findings, class and race differences in litigation remain unclear; a cautious conclusion would be that relatively small differences do in fact exist for certain kinds of grievances and for reasons that remain to be fully determined.

The influence of gender on litigation has also been considered. Although many scholars think that until recently men “have dominated the civil litiga- tion arena” (Morgan 1999:68), the reasons for the earlier gender gap remain unclear. Some researchers argued that women were less likely than men to lit- igate because they had fewer resources such as time, money, and legal expert- ise (Gleason 1981). Others argued that women litigated less than men prima- rily because they were not working in the business and professional worlds that give rise to so many issues that end up in litigation (Morgan 1999:191).

Whatever the reason, the traditional gender gap in litigation seems to have narrowed and even disappeared for many types of grievances. Scholars attribute these changes to the increased education and other resources that women have gained in recent decades and to their greater involvement in the business and professional worlds (Morgan 1999). Moreover, the nation’s expansion of the legal rights of women through such measures as the Violence Against Women Act and Title IX, which prohibited gender discrimination in educational institutions, created litigation opportunities regarding denial of these rights that women have pursued many times since (Hoyman and Stall- worth 1986). Finally, studies of ordinary citizens’ litigation in the nation’s lower courts find that women are in fact more likely than men to seek court redress for family and neighborhood problems (see below). Thus, the question of gender differences in litigation in the contemporary era seems to hinge on the type of issue or problem rather than on broad gender differences per se.

DISPUTE PROCESSING IN THE UNITED STATES

Anthropological studies of the disputing process helped spawn a more gen- eral interest in the disputing process in modern societies. The United States has been the subject of many disputing studies during the past few decades

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by law and society scholars in several disciplines. A central task has been to explain Americans’ apparent interest in law, to understand the amount of lit- igation the United States has, to explain how Americans go about using or not using the law, and, perhaps especially, to explore the popular view that the United States is beset by a so-called “litigation crisis” involving a glut of frivolous lawsuits and runaway juries.

Dispute Processing and Litigiousness: Then and Now

In June 2006, actress Reese Witherspoon sued the tabloid magazine Star for writing that she was expecting her third child and that she did not want her new films’ producers to know about her pregnancy. Both allegations were false, Witherspoon said in the suit, which added that the second allegation harmed her reputation by making her sound deceitful (Reuters 2006). At about the same time, a public health interest group sued KFC (aka. Kentucky Fried Chicken) for using partially hydrogenated oils containing trans fats, which clog arteries and contribute to heart disease. The plaintiff, the Center for Science in the Public Interest, asked the District of Columbia Superior Court to order KFC either to stop using trans fat oils or to tell its customers that it uses the fats. KFC replied that its food was safe and that the lawsuit had no merit (Burros 2006). Meanwhile, environmental groups in Arkansas sued to stop a $300 million irrigation project that, they said, would impair the habitat of an endangered woodpecker, and they were heartened when a federal judge suspended the project pending further review (Demillo 2006).

You may or may not think these were the most important or serious lawsuits that were ever filed, but it probably does not surprise you that they were filed. If so, your lack of surprise probably stems from your perception that Americans sue all the time for all kinds of things, trivial and important alike. Whatever you might think of Reese Witherspoon as an actress and about the substance of her lawsuit, you probably do not think that the act of filing a lawsuit made her a bad, selfish person, and you probably think that she had every right to sue the tabloid. Even if you have never heard of the Center for Science in the Public Interest and think that people should be allowed to eat what they want, you probably also think that it had every right to sue KFC. And litigation has certainly been an important strategy for the environmental movement.

Your perception that these three lawsuits were unsurprising and even normal reflects the widespread belief that suing someone is as American as apple pie. According to this belief, the United States is said to be “a society profoundly rooted in law,” to cite political scientist Seymour Martin Lipset (1996:270) and, in particular, an especially litigious society in which all kinds of matters become legal issues. A famous observation from Alexis de Tocqueville (1994 [1835]:280), the perceptive nineteenth-century French observer of American democracy, captures this sentiment: “Scarcely any political question arises in the United States that is not resolved, sooner or

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later, into a judicial question. Hence all parties are obliged to borrow, in their daily controversies, the ideas, and even the language, peculiar to judicial proceedings.”

Many scholars since have echoed this belief. “The notion of justice with- out law seems preposterous, if not terrifying,” writes legal historian Jerold Auerbach (1983:3). “A legal void is especially alarming to Americans, who belong to the most legalistic and litigious society in the world.” Adds law professor Jethro K. Lieberman (1981:3), “Judicial decrees have changed the face of the social order, and Americans seemingly take to the courtroom at the merest whisper of an insult.” To the extent the United States is an especially litigious society, Americans’ litigiousness is attributed to several factors: (1) the nation’s simplex structure; (2) its cultural emphasis on individualism and success, both of which contribute to an affinity for the win–lose outcomes that adjudication achieves; (3) the distrust of government and respect for law as a protector of individual freedom that grew out of the colonial experience and was written into the Constitution and Bill of Rights (see Chapter 3); (4) a decentralized political structure in which power is fragmented among many political and legal bodies, thus encouraging litigation and other efforts to affect public policy; and (5) the granting of rights by the U.S. Supreme Court to African Americans and other disadvantaged groups during the 1960s and early 1970s, which furthered Americans’ perceptions that the courts are a source of justice (Kagan 2001; Lieberman 1981; Lipset 1996).

Whether or not Americans are especially litigious is a debate discussed later when we examine the litigation crisis controversy. Whatever the situa- tion today, many American communities earlier in U.S. history were defi- nitely not litigious. Historian Jerold S. Auerbach (1983:4–5) writes,

In many and varied communities, over the entire sweep of American history, the rule of law was explicitly rejected in favor of alternative means for ordering human relations and for resolving the inevitable disputes that arose between individuals. . . . Historically, arbitration and mediation were the preferred alternatives. . . . Sharing a suspi- cion of law and lawyers, [Americans] developed patterns of conflict resolution that reflected their common striving for social harmony beyond individual conflict, for justice without law.

Wishing to preserve their own traditions, fearing that litigation would disrupt their harmony by exacerbating conflict and by implying mutual mistrust, and mistrusting lawyers, these communities developed dispute processing methods that kept “courts and lawyers as remote as possible” (p. 5).

These methods were perhaps most salient in the early American colonies, whose residents, writes Auerbach (1983:20), “understood that legal disputation, with its adversarial imperatives, was destructive of the group solidarity upon which they depended for the fulfillment of their mission in the New World.” Much of these colonists’ aversion to “legal disputation”

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derived from their religious beliefs. In Puritan Massachusetts, religion was certainly all-important. Law was considered an “alien value system, anti- thetical to Christianity itself,” and litigation was considered “a form of self- aggrandizement contrary to the best interests of the community” (p. 22). Accordingly, “legal dispute settlement was explicitly discouraged” (p. 23), and the Puritans relied largely on arbitration, mediation, and negotiation, and, failing those, church intervention.

Outside New England, the Quakers of early Pennsylvania also shunned legal methods of dispute processing. Like Puritans, Quakers felt that conflict and contentiousness would threaten the harmony of their Christian society and favored dispute processing that would preserve social harmony. They thus developed a process that first involved negotiation, then mediation by one or two other Quakers, and then arbitration by other Quak- ers. If these methods all failed, the dispute then went to the local monthly meeting, or church, which assigned arbitrators. A disputant who refused to honor the arbitrators’ judgment could then be disowned by the monthly meeting. This entire process, writes Auerbach (1983:30), “was designed at every stage to suppress conflict.” Quakers’ disputes with non-Quakers did enter the courts, but even here “the pressure for harmonious resolution was evident” (p. 30), with arbitration always available as an alternative.

The aversion to litigation also characterized the early colonies’ mercan- tile economy. When disputes involving merchants needed resolution, mer- chants preferred commercial arbitration over litigation because it was faster and less expensive and more attuned to their needs and interests. They also feared that litigation would make their disputes more public and open mer- cantile trade to outside intervention.

Eventually, however, courts and litigation became more popular in colonial communities and among colonial merchants alike by the beginning of the early eighteenth century. As the colonies grew, the sense of community weakened and relationships became more simplex, to use our earlier term, with strangers moving into colonial towns and merchants and customers no longer knowing each other outside their economic relationship. The law thus became a common meeting ground for the resolution of disputes as the colonists became more willing to embrace a “legal process [that] encouraged the clash of individual differences amid constant jostling for private advan- tage” (p. 34). This development had an important consequence, writes Auer- bach (1983:35): “Paradoxically, law encouraged contentiousness while chan- neling it. The mixed benefits provided by litigation made colonists uneasy even as they went to court more frequently.” As the colonies grew, then, they became less multiplex and more simplex, and their dispute processing changed accordingly as the importance of enduring relationships lessened. As Auerbach (1983:41) notes, “Arbitration and mediation had been appro- priate for neighbors and parishioners, but the disagreements of strangers, who lacked any basis for mutual trust, were for lawyers and judges to resolve.”

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Although courts and adjudication began to take hold in the new nation, they did not become dominant everywhere and in every era. In par- ticular, utopian communities that arose during the early eighteenth century in New England and the Midwest disliked litigation for reasons similar to those held by the early colonial communities just discussed. Some of these utopian communities gathered because of their religious beliefs and others because of their political beliefs, but both types embraced communal har- mony as an underlying principle and feared that state law would undermine this harmony. Disputes were addressed in these communities by peer pres- sure and moral persuasion and the threat of expulsion. If these did not work, disputes would be heard by the entire society. Although almost all of these utopian communities lasted at most a few decades, their aversion to legalism again reminds us that the United States has not always been a litigious society.

Another reminder occurred about a century after the utopian commu- nities first appeared when a new wave of immigrants came to the United States in the early nineteenth century. Although they quickly settled into the various neighborhoods of large cities on the eastern seaboard and elsewhere, they strove to hold onto their old ways even as they slowly but surely began to adopt the culture of their new nation. Not surprisingly, dispute processing and the law became one venue in which this struggle became manifest. As Auerbach (1983:69–70) writes,

New immigrants had good reasons to resist, at least temporarily, lit- igation and the judicial process. They often dwelled in communities where personal relationships were intricately social and enduring, not impersonally contractual and transitory. . . . The newcomers understood that the delicate equilibrium of continuing community relationships would be upset by the narrowing of issues, the desig- nation of winner and loser, and the abrupt, abrasive finality of a legal verdict. Control over conflict was crucial for preserving com- munal values from the corrosive effects of assimilation.

Their aversion to litigation led several of these immigrant communities— those from Bulgaria, Greece, Italy, and Turkey—to rely on arbitration by a padrone, a wealthy, powerful individual in their neighborhoods who ran many businesses and provided many jobs and much housing. His influence over their lives meant that his decision in the disputes he arbitrated would be followed. Eventually, however, padrones began to lose their power, and their arbitration of disputes gave way to litigation in American courts. Other immigrant communities that never had padrones also began to turn to litiga- tion in place of internal methods of dispute processing, in part because they wanted to act like Americans.

Three immigrant groups resisted this trend. One group was the Scandinavian communities in Minnesota and North Dakota; for these immi- grants, reconciliation was an important cultural norm, and they feared that

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litigation and the involvement of attorneys would aggravate disputes rather than reconcile them. Chinese and Jewish immigrants were two other groups that resisted the turn to litigation. The former favored mediation by elders and other revered individuals, while the latter favored arbitration; both groups disliked litigation because they valued harmony, because they wanted to keep their cultures free of American influence, and because they feared that the legal system was racially biased against them.

Evidence of such bias readily existed. In 1854, for example, the California Supreme Court ruled that Chinese witnesses could not testify against white defendants because the Chinese were “a race of people whom nature has marked as inferior” (quoted in Auerbach 1983:74). Although all three immi- grant groups resisted litigation for all these reasons, they, too, eventually began to turn to the law for dispute resolution. As they became more assimi- lated over time and as their values changed, they became more willing to liti- gate: “The Americanization process, with its overriding emphasis individual achievement, encouraged adversarial competitiveness and communal frag- mentation” (Auerbach 1983:93). As this happened, immigrants’ informal methods of dispute processing gave way to American legal formalism.

Legal Consciousness and Going (or Not Going) to Court

Earlier, we mentioned a recent line of research involving ethnographic field- work and intensive interviewing. Some of these studies have taken place in small towns across the country and thus may be considered community studies, while other studies have involved selected groups of individuals, such as welfare recipients and people who have experienced sexual harass- ment or racial discrimination in the workplace or other venues. Regardless of the scope of the research, studies of this type have tried to understand how Americans’ legal consciousness—their everyday understandings of and experiences with the law—have shaped their willingness to use lawyers and courts and also how law and other aspects of society have shaped legal consciousness. As such, legal consciousness also encompasses people’s ideas about justice, power, and rights and how these ideas affect their everyday lives and, especially, their reactions to grievances and disputes (Engel and Munger 2003; Ewick and Silbey 1998; Marshall 2005b; Merry 1990; Nielsen 2004a; Silbey 2005).

An early study of legal consciousness that never used the term was Stewart Macaulay’s (1963) classic discussion of the reluctance of businesses to use formal written contracts when they initiate agreements with each other. Although you might be surprised by this finding, Macaulay wrote that many businesses actually prefer “handshake” agreements because an insis- tence on a written contract would imply a lack of trust and threaten the enduring relationships that businesses have with one another. They also feel that formal contracts would make their arrangements less flexible and more complex. When disputes arise between businesses even when there is

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a contract, many prefer to handle the dispute without involving lawyers and without threatening to sue, again because they wish to preserve their long- term business relationship. As one purchasing agent put it, “If something comes up, you get the other man on the telephone and deal with the prob- lem. You don’t read legalistic contract clauses at each other if you ever want to do business again. One doesn’t run to lawyers if he wants to stay in busi- ness because one must behave decently” (p. 61). Thus, the related desires for a good reputation and for continuing relationships with other companies help explain why law is often avoided in the business world.

Legal Consciousness and Everyday Life. One of the most notable recent stud- ies of legal consciousness is Patricia Ewick and Susan S. Silbey’s (1998) The Common Place of Law: Stories from Everyday Life. They interviewed a random sample of 430 New Jersey adults about their thoughts and reactions to law and other authority (e.g., hospital administration) in their everyday lives. The subjects’ rich descriptions of their lives enabled the authors to develop a typology of three types of legal consciousness. Some people, they found, have a before the law consciousness because they respect the law and even hold it in awe. These people tend to turn to the law only when especially severe prob- lems arise and can become frustrated by its complexity when they do so. Other people are with the law because they are quite ready and willing to use the law to achieve their self-interests. They view law as a game in which the rules may be manipulated if necessary to win and in which the most skilled players have the greatest chances of winning. The third type of legal con- sciousness is against the law. People with this consciousness distrust the law and other authority and react with various violations of norms that the authors call “daily acts of individual resistance” (p. 183). Examples of such acts include pilferage, the use or threat of violence, delays, and small acts of deceit. For example, one elderly man in a high-crime Newark, NJ, neighbor- hood told the authors that the police always ignored his calls to them until one day he used a higher-pitched voice to sound like a woman when he called them. This time they responded quickly. Another interviewee, 17, said she falsely reported being 18 in order to receive emergency room treatment at a hospital without her abusive parents having to be contacted.

Legal Consciousness Among the Working Class. Sally Engle Merry (1990) studied legal consciousness among largely working-class residents of two Massachusetts towns during the early 1980s. Like many other people, these residents had various problems with family members and other relatives, lovers and other close friends, and neighbors: a neighbor would be noisy, a husband would be violent, a teenaged child would be disobedient. They sometimes decided to seek legal redress for these problems either by calling the police or by going directly to court and talking with a court clerk or other official they encountered. Typically they had tried to resolve the problem in other ways that proved futile and thus went to court “reluctantly and only as

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a last resort” (Merry 1990:3). Once they did so, they found that the dispute escalated for the reasons discussed in our earlier section on methods of dis- pute processing.

They also found another harsh reality: legal officials typically consid- ered their interpersonal problems to be “garbage cases” that did not belong in court. This result, wrote Merry (1990:2), surprised and disappointed these citizens, who went to court “because they see legal institutions as helpful and themselves as entitled to that help. They see the court as an institution which has a responsibility to protect their fundamental rights to property and safety, rights they acquire as members of American society. Moreover, they think that settling differences by legal rules and authorities is more civ- ilized and reasonable than violence.” Given their strong belief that their issues belonged in court and their expectation that the law would recognize their rights, these litigants were taken aback when they did not receive the legal help they anticipated.

Another unexpected outcome of going to court related to the issue of power. On the one hand, going to court empowered the litigants in relation to the person with whom they were having a dispute, however petty or seri- ous. On the other hand, going to court meant that the court would now con- trol what happened with the dispute. As Merry (1990:2) put it, “People who take personal problems to court become more dependent on the state to manage their private lives. Recourse to court strengthens the hand of the plaintiff against his or her neighbor, relative, or friend, but at the same time it leaves her dependent on the court for support.” Thus, going to court was ultimately a disempowering experience for these plaintiffs.

Contributing to this disempowerment were several other realities. First, they found legal proceedings difficult to comprehend. Second, they often were unable to meet with a judge and instead had to content them- selves with a court clerk or other court personnel. As Merry (1990:3) observed, “It is easy to get into the door of the courthouse but far more diffi- cult to arrange a hearing in front of a person in a black robe.” Third, any penalties handed down against defendants tended to be relatively light. In general, Merry found that women litigants who brought charges of violent abuse against their husbands or boyfriends were particularly disadvan- taged, as courts refused to take their claims seriously and as the act of going to court antagonized the men who were beating them. For these and other reasons, going to court changed the legal consciousness of the working-class plaintiffs in Merry’s ethnographic study. In particular, they began to think that the courts were “ineffective, unwilling to help in these personal crises, and indifferent to the ordinary person’s problem” (Merry 1990:70).

In other respects, Merry’s book-length study shed important light on some of the litigation issues discussed earlier in this chapter. First, she found that the less educated, working-class people she studied had a strong sense of their legal rights and of their entitlement as American citizens to seek redress in the courts. Second, she found that few of these citizens actually

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used the courts despite the many problems they had, as most sought to resolve the dispute in nonlegal ways and turned to the courts only reluc- tantly. Third, she found that working-class citizens were more likely than wealthier ones to use the courts for the family and neighborhood problems, while wealthier people use the courts for other types of problems such as real estate and consumer problems. This last point exemplifies the finding in recent research, discussed earlier, that the involvement of the various social classes in courts depends more on the types of problems they experience than on differences in legal consciousness, material resources, and other such dimensions.

A final set of findings in Merry’s study concerned gender. Women in her study were much more likely than men to bring family and neighbor- hood problems to court. The reason for this, she wrote, was that women have less power than men in the troubled relationships that lead them to go to court: “In this social world, relative power depends to a large extent on strength, willingness to use violence, and economic resources. Women are usually less well endowed with these qualities than are men. They turn to court because they feel vulnerable and because they hope it will provide a powerful ally, but it is not a first choice” (Merry 1990:4).

Legal Consciousness and Offensive Speech. Another notable study of legal consciousness and litigation is Laura Beth Nielsen’s (2004a) book about the reactions of people in three Northern California cities to offensive public speech, including racist and sexually suggestive speech (aimed at women and gays and lesbians) but also begging. Public comments that are sexually suggestive or racist are quite common in American society and no doubt elsewhere as well. One woman reported to Nielsen what a man once said to her: “I love that smile. I would have liked to have been there this morning when your man put that smile on your face. What did he do to put that smile on your face? I’ll bet he (expletive) you so long you’ll be smiling all day.” A lesbian reported, “When I am walking down the street with my girlfriend we get lots of comments like, ‘Try me and you’ll never go back’ or ‘I can show you things that she can’t.’ ” An African American woman reported a man’s shout to her: “Monkey for a dollar!” (Nielsen 2004a:1).

Most people in today’s society, and especially the recipients, would con- sider comments like these to be highly offensive. But they are uttered in an American society that ordinarily values and protects freedom of speech, including speech that many find offensive. This protection provides people uttering such speech a “license to harass” that is the title of Nielsen’s book and also the point of departure for her study. Among other topics, her book exam- ined the willingness of three groups of people—white women, white men, and people of color—to have the law limit or ban offensive public speech. This examination thus touched on one aspect of their legal consciousness.

Not surprisingly, Nielsen found that the white women and people of color in her study were much more likely than white men to experience

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offensive public speech. All three groups agreed that such speech is indeed offensive, but they also agreed that it should be permitted in American society. However, they differed in the reasons they gave for believing it should be permitted: Whereas white men opposed offensive speech laws because they favored the principle of freedom of speech, white women and people of color opposed these laws for other reasons, including the belief that the laws would be ineffective and difficult to enforce and the fear that any such laws would be used to restrict their own speech in different contexts. In this way, wrote Nielsen, the study of offensive public speech illustrates the different types of legal consciousness that these groups hold: “It is clear that the rela- tive social status of the target of offensive public speech makes a difference in how different types of offensive public speech are legally managed” (p. 12).

Nielsen drew two other conclusions that are relevant for some of the litigation issues discussed earlier. First, because the people she interviewed were generally opposed to legal restrictions on offensive public speech, she joined Merry (1990) in concluding that Americans are far less litigious than commonly depicted. Second, she noted that the law generally does not limit the type of offensive public speech, sexually suggestive and racist com- ments, aimed at women and people of color, respectively, but it does limit the type of public speech, begging, aimed most often at white men and also opposed by merchants and other businesses. In this way, Nielsen concluded, the law reflects and reinforces social class, racial, and gender bias.

Legal Consciousness and Sexual Harassment. Some of the themes of the books by Merry and Nielsen are echoed in Phoebe A. Morgan’s (1999) study of sexually harassed women. Today’s legal system theoretically provides extensive legal redress to women who suffer sexual harassment in the work- place and elsewhere. The rate of sexual harassment claims filed with the fed- eral Equal Employment Opportunity Commission rose by about 12 percent annually from 1980 to 1994, and sexual harassment certainly is an issue with which many people are familiar from news coverage and popular media depictions on TV and in film. Despite this new awareness and the opportu- nity for legal action, however, in practice, only about one-sixth of sexually harassed women take such action (Marshall 2005b; Morgan 1999).

Why do so many decline to file suit? Morgan interviewed thirty-one sexually harassed women. All the women had considered filing a lawsuit, but only four eventually did so. A major factor in their decisions regarding litigation was their family relationships as wives and/or mothers, specifi- cally “how litigation might affect those to whom they were most closely tied” (Morgan 1999:86). Some filed suit because they thought it would bring their families needed financial resources, but others declined to file suit because they feared that legal action would be too stressful for their families. Women with children and unsympathetic husbands especially held this fear. “For such women,” Morgan wrote, “litigation pits the need to meet familial responsibilities against personal longings for formal justice” (Morgan 1999:87).

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Thus, these women’s family relationships and responsibilities played a major role in their decisions to seek or not seek legal redress for the sexual harassment they had experienced.

Legal Consciousness and Disability. A final study illustrates how the idea of legal rights can affect individuals’ legal consciousness. David M. Engel and Frank W. Munger (2003) interviewed sixty people with disabilities (either people with learning disabilities or those confined to a wheelchair) about their views of their legal rights and about their everyday behaviors and experiences after the passage of the Americans with Disabilities Act (ADA) in 1990. Everyone in their study had suffered disability-based discrimina- tion, but no one had ever sued. Even so, the authors found that the ADA had helped improve the self-image of many of their interviewees while also giv- ing them a sense of entitlement to equal treatment. As a result, some pursued career paths that they otherwise might not have pursued if the ADA had not been enacted. The authors found that their interviewees received better treatment in their workplaces after the ADA was passed. To the extent the ADA had these benefits, they accrued more to the interviewees who were white and middle class than to those who were African American or lower class. Gender affected the choice of careers but not the extent of benefits that otherwise occurred.

Rights Consciousness. The Engel and Munger study is part of a larger body of research and theory on Americans’ perceptions of their legal and civil rights, or on their rights consciousness (Nielsen 2004b; Scheingold 1974). In general, this research finds that Americans have a strong sense of their rights as reflected in the Declaration of Independence’s assertion of the rights to “live, liberty, and the pursuit of happiness” and in claims of the Southern civil rights movement and other social movements of the last several decades. It also finds that Americans believe aggrieved groups are entitled to pursue their rights through the legal and political process.

At the same time, however, this research also finds that Americans with perceived grievances do not usually pursue their rights through the legal and political process, as most such people practice lumping it or avoidance for reasons discussed in the preceding pages: they may believe that pursuit of their rights will be futile, expensive, or time-consuming; they may lack the self-confidence or material resources to pursue their rights; they may not trust the legal and political systems to hear their claims impartially; or they may fear that litigation will aggravate a situation and make them look like selfish individuals (Bumiller 1988; Galanter 1983). As Engel and Munger (2003:3) summarize this research, it finds that

Americans usually deal with legal problems by absorbing per- ceived wrongs without overt response. Americans seldom con- sult lawyers when they believe themselves to be the victims of

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rights violations, and lawyers seldom bring lawsuits on behalf of those who consult them. . . . From this perspective, America is a nation of “law-avoiders.” Potential claims of rights tend to be repressed, wrongdoers are often free to repeat their transgres- sions without fear of legal reprisal, and relatively powerless indi- viduals suffer the consequences of an inability or unwillingness to invoke the law to protect their interests.

Thus, a large body of research finds a large divide between what Amer- icans believe about rights and what they actually do, or fail to do, about their rights (Trubek et al. 1983). In related areas, this research also finds that when people do end up in court, they often care more about being treated impar- tially and fairly, with dignity and respect, and about being allowed to have their say, than about the actual outcome of the case (MacCoun 2005; Tyler and Huo 2002). In short, they care about whether they have received procedural justice (see Chapter 3) (Tyler 2004). When they perceive they have received procedural justice in all these respects, they are more satisfied with their legal involvements.

The Litigation Crisis Controversy

Since the 1970s, many observers have said that the United States is suffering a litigation crisis characterized by a markedly increasing amount of litiga- tion, much of it involving frivolous cases; clogged courts that make the pro- cessing of cases extremely expensive and time-consuming; and, perhaps especially, runaway juries that render verdicts in the millions of dollars for claims that did not merit such huge sums (Huber 1988; Kagan 2001; Olson 2002; Sykes 1992). A Newsweek article as far back as 1977 led with the provocative headline, TOO MUCH LAW? and featured a large drawing of a swarm of people trying to cram into, and at the same time falling out of, a courthouse (Footlick 1977). The article began by summarizing two cases: a frivolous lawsuit in which frustrated fans of a professional football team filed a lawsuit to try to overturn a referee’s decision that had cost their team the game, and a much more noteworthy case involving Karen Ann Quinlan, a comatose woman on life support whose parents asked a court to let her die. The article then went on to say,

For good or ill, Americans have come to rely on the courts to solve their problems to an unprecedented degree. . . . The mounting influence of law and lawyers on modern life constitutes one of the great unnoticed revolutions in U.S. history: the ever-increasing willingness, even eagerness, on the part of elected officials and private citizens to let the courts settle matters that were once settled by legislatures, executives, parents, teachers—or chance. (p. 41)

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A list of actual cases, some very important and some less important, then followed, involving such issues as: whether an employer can refuse to hire anyone the employer does not want to hire; whether a school may restrict the hair length of its male students; whether a factory should be permitted to dump waste in a lake; whether a hockey player should be subject to criminal prosecution for hitting an opponent; and whether a woman has a legal right to an abortion. The article then noted a sharp increase in the number of federal and state civil cases since 1960, much of this stemming from the fact that “events that would have seemed inconceivable as legal matters a few years ago are finding their way into the courts” (Footlick 1977:45). Reflecting the article’s concern, a case in San Francisco Small Claims Court a year later involved a man who wanted compensation from a woman for standing him up on a date. After he drove fifty miles to pick her up, she told him she did not want to go out with him after all. The plaintiff wanted reimbursement of $38 (worth about $120 today) for his expenses (San Francisco Chronicle 1978).

A quarter-century later this purported litigation crisis again won head- lines as political conservatives and business leaders led a call earlier this decade for “tort reform” that would limit the kinds of issues juries would be allowed to hear and, especially, the financial amount of the awards and dam- ages they could give to defendants they found liable. Much of this campaign focused on medical malpractice, as President George W. Bush gave a series of speeches in early 2005 that called for Congress to limit malpractice awards to reduce what he called “junk lawsuits” (Pear 2005:A1). Although the Congress never did pass the malpractice legislation the President wanted (Stolberg 2006), it did pass legislation that limited the ability of state courts to hear class action lawsuits. Although the votes in both houses were not close, they were nonetheless criticized by civil rights, consumer, environmental, and labor groups who feared the legislation would “provide new protections for unscrupulous companies,” according to a news report (Labaton 2005:A1).

These efforts came in the wake of successful tort reform efforts at the state level during the 1990s, when about two-thirds of the states enacted limits on awards in malpractice or other tort cases. Much of the motivation for these new limits came from a few cases in which juries awarded millions of dollars for trivial injuries. In Alabama, for example, a jury in 1999 awarded $581 mil- lion to a family who claimed that a company had overcharged them $1,200 for two satellite dishes. Five years earlier, a Georgia jury awarded $50 million to a plaintiff who claimed that he had been overcharged $1,000 on a car loan, and two years before that a plaintiff won $4 million after suing the auto company BMW for secretly repainting the car he had bought; the U.S. Supreme Court later reduced this award to $50,000. The satellite dish case prompted the Georgia legislature to sharply limit punitive damages by juries (Firestone 1999).

Legal Legends and News Media Coverage. These cases from Alabama and Georgia were just three of many examples of “bizarre jury verdicts and huge damage awards” (Glaberson 1999a:D1) that have won news headlines

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during the last few decades. However, many of these cases have proven to be urban legends (or, to be more precise, legal legends) that either never hap- pened or were distorted in their retelling (Galanter 1998; Glaberson 1999a; Haltom and McCann 2004).

One of the most notorious such cases involved a plaintiff who spilled McDonald’s coffee on herself and won $2.9 million from a jury in 1994. Although this case received much publicity as a frivolous lawsuit with an absurd jury award, the news coverage generally omitted some important facts that might have cast the case in a different light. First, the plaintiff suf- fered third-degree burns over 6 percent of her body that required skin grafts and kept her in a hospital for more than a week and partially disabled for two years. Second, McDonald’s coffee was at least 20 degrees hotter than other restaurants’ coffee, and more than 700 people had told McDonald’s in the previous decade that they had been burned by its coffee. When a judge reduced the plaintiff’s jury award to about one-fifth of its original amount, this event received much less news coverage than did the original award itself.

This example reflects a more general problem in news media coverage of lawsuits (Bailis and MacCoun 1996; Haltom and McCann 2004). The legal legends typically receive heavy coverage, as do the relatively few cases, such as medical malpractice awards, that end in multimillion-dollar awards. This coverage paints a grim but false picture of a nation besieged by law and law- suits and runaway juries. For example, in 1989 the New York Times reported on many cases in and around New York City, and the average award in the cases that won the Times’ attention was $20.5 million. However, many more cases did not win the Times’ coverage, and their average verdict was $1.1 million (Glaberson 1999a). Thus, media coverage of lawsuits gives the public and policymakers an exaggerated idea of the damages that the bulk of lawsuits really provide. Media coverage also exaggerates the degree to which plaintiffs win tort suits. Political scientists William Haltom and Michael McCann (2004) studied 3,500 articles in the nation’s leading newspapers of tort cases from 1980 to 1999. In these cases, plaintiffs won 78 percent of the time, even though plaintiffs win only about 50 percent of all cases (see below). Thus, media coverage suggests that plaintiffs win much more often than they actually do win.

Social Science Evidence on the Litigation “Crisis.” Aided by media coverage, the idea of a litigation crisis characterized by runaway juries and soaring lit- igation has become accepted wisdom among citizens and public officials alike. However, social science research finds that this problem is greatly exaggerated (Daniels and Martin 1995; Galanter 1983; Haltom and McCann 2004; Kritzer 2004). Cases like the satellite dish suit in Alabama do occur and gain much publicity, but they are the exceptions rather than the rule. Puni- tive damages by juries are, in fact, rare in comparison to the total amount of litigation, and fairly small when they are awarded (Glaberson 1999a).

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According to a federal report, for example, of the 12,000 civil cases dis- posed of by trial in the nation’s seventy-five largest counties in 2001, plain- tiffs won only 55 percent of the time (including only one-fourth of the time in medical malpractice cases), and they won less often in jury trials than in bench trials (when only the judge decides the verdict). When they did win, their median award was only $37,000 from juries and $28,000 from judges. Only 6 percent of victorious plaintiffs won punitive damages (meaning that punitive damages were awarded in only about 3 percent of all trials), and their median punitive award was only $50,000. Indicating that juries are not overly generous, they awarded punitive damages only about as often as did judges, and their punitive awards were not significantly higher than those from judges. Only 8.4 percent of victorious plaintiffs won more than $1 mil- lion in total damages, and only 18 percent won more than $250,000. In related findings, the percentage of plaintiffs who won punitive damages in 2001 was the same as in 1992, and the amount of punitive damages was lower in 2001 than in 1992 (Cohen 2005; Cohen and Smith 2004).

Another study also found that juries and judges are equally likely to award punitive damages (each in about 4 percent of all trials) and to award similar amounts (Eisenberg et al. 2002). These findings led the study’s lead author to observe, “Policy is being determined on the notion that there are these crazy jurors out there that need to be reined in by legislatures and courts. The evidence is that juries are not out of control’’ (Glaberson 2001:A9). A later study by the lead author and colleagues of 11,610 civil cases won by plaintiffs again found that juries and judges awarded punitive dam- ages at similar rates (juries, 5 percent; judges, 4 percent); juries awarded punitive damages more often than judges in nonbodily injury cases and less often in bodily injury cases. This last finding ran counter to “conventional wisdom . . . that juries, not judges, should be the relative pushovers for injured plaintiffs” (Eisenberg et al. 2006:291).

Haltom and McCann (2004) point to additional evidence against the lit- igation crisis thesis. First, the number of liability suits has not been soaring, as tort reform critics maintain. Although such suits rose by 58 percent from 1975 to 1997, they actually declined by 9 percent after 1986. Thus, they rose for about a decade and then declined for about the next decade. Second, most people who suffer disabling injuries in their workplaces or elsewhere never sue; a large study found that only 4 percent of these potential litigants hired an attorney and only 2 percent filed a lawsuit. Third, most people who suffer injuries from medical malpractice also do not sue, with one study finding that only 16 percent of patients who suffered serious, permanent injuries took legal action. Thus, the authors conclude, “Americans’ modal response to injury is to do little or nothing” (p. 82). In this regard, the reluc- tance of injured people to sue reflects Americans’ general reluctance to go to court as discussed in the previous section on legal consciousness.

A recent study of medical malpractice cases from 1988 to 2002 in Texas, one of the few states for which appropriate data are available, also provides

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evidence against the litigation crisis thesis (Black et al. 2005). The authors found that “malpractice claims and payments were stable over the period for which we have data” (p. 209) and that jury awards did not rise during this time. These and other findings led the authors to further conclude that “no crisis involving malpractice claim outcomes occurred” (p. 210) and that only a “weak connection” (p. 210) exists between malpractice claims costs and malpractice insurance costs.

In sum, the body of evidence on jury awards and the amount of litiga- tion suggests that the litigation “crisis” is not really a crisis after all (Galanter 1993). Moreover, the evidence discussed in this and the previous section on legal consciousness also suggests that the litigiousness of Americans has been exaggerated, as they only rarely litigate even when they have sufficient griev- ances. Comparative data support this conclusion. Although accurate interna- tional data on litigation rates are difficult to obtain (Blankenburg 1994; Boyle 2000), they indicate that U.S. litigation rates are not dramatically higher than those in other democracies (Galanter 1983; Kritzer 1991). Moreover, historical studies of U.S. litigation rates indicate that these rates have periodically risen and fallen and that current rates in the state courts are not higher than earlier rates (Friedman 1989; McIntosh 1990). At the state level, then, where more than 90 percent of all cases occur, it does not appear that the litigation “explo- sion” cited by tort reform advocates has actually occurred.

Another recent study again supports this conclusion (Seabury, Pace, and Reville 2004). The authors examined forty years of jury verdicts in tort cases in San Francisco County and Cook County, IL (greater Chicago). Dur- ing this period, the number of jury verdicts in San Francisco actually declined by 70 percent and remained stable in Cook County. The average jury award did rise during this period in both locations but at a lower rate than real income. Moreover, the increase that did occur stemmed primarily from a decrease in automobile cases and an increase in medical malpractice cases and in patients’ medical expenses. The authors concluded, “Our results suggest little evidence to support the hypothesis that juries are awarding substantially higher awards on average, though they may be doing so for certain kinds of cases” (p. 23).

If there is a litigation crisis because juries are “out of control,” we would expect that judges would attest to this in surveys of their opinions. To the contrary, surveys of judges find that they are generally satisfied with the performance of juries in civil trials (Dwyer 2002). A 2000 survey of Texas state trial judges and all federal trial judges found that most had a very favorable opinion of civil juries (Pusey 2000). More than 80 percent said that juries were impartial as they decided their verdict; 96 percent said that they agreed with jury verdicts most or all of the time; and 90 percent said that juries are able to understand the various issues that arise in cases.

Although a legal crisis thus does not appear to exist, two-thirds of the states, as noted earlier, passed tort reform measures during the 1990s to limit the ability to sue and/or the size of punitive damage awards. For better or worse,

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these measures have had their effect, but they have also prevented plaintiffs who suffered serious injuries because of gross negligence from receiving ade- quate compensation. According to a 1999 news report, this result has led critics to charge that “the ‘reform’ label is being used to force the most extensive cut- back in the legal protections for citizens in this century” (Glaberson 1999b:A1).

In Texas, a leader in the tort reform movement, a jury awarded $42.5 million in a case in which it found an oil refinery negligent in the death of a worker who died in an explosion; citing a new state law that limited puni- tive damages, the judge reduced the award to $200,000. The judge’s decision prompted a juror in the case to remark, “$200,000 is just pocket change. They’ll just write this off” (Glaberson 1999b:A1). Texas’s tort reform effort was aided by its state Supreme Court in several rulings. In one case decided by the court, a father won $250,000 from a jury after his daughter was mur- dered by a psychotic patient, the daughter ’s husband, who was released from a hospital without proper medication. The court invalidated the award, and the father received no compensation. He later said that the court’s deci- sion sent the wrong message to psychiatric hospitals: “If they can get by with that, they can get by with anything. If that can happen, what good is your court system?” (Glaberson 1999b:A1).

To try to get around the new limits on punitive damages, some plain- tiffs’ attorneys developed a strategy of convincing juries to provide pain- and-suffering awards for emotional and psychological harm in addition to compensation for lost wages, healthcare costs, and other expenses. In a sexual harassment case, a Michigan woman won a $20 million pain-and-suffering award that was widely interpreted as the equivalent of a punitive award. The woman had worked in a Detroit auto assembly plant and for years had been subject to pornographic materials and vulgar comments. In one inci- dent, a photo of a penis was taped to her toolbox. Her attorney said the harassment led to a suicide attempt and hospitalization (Liptak 2002).

Some evidence also suggests that in states that have limited pain-and- suffering awards, juries have responded by providing greater economic damages, as their total awards are roughly equal to those in states without such limits. However, it is possible that attorneys in these states are simply choosing to represent clients with high-paying jobs and thus significant loss income, while those in states without pain-and-suffering limits are taking on clients with lower-paying jobs (Liptak 2005). Research that controls for the career path of the client would thus be needed to determine whether juries in states with pain-and-suffering limits are indeed responding with higher economic damages.

Alternative Dispute Resolution

Dissatisfied with the cost, slow pace, and other problems of adjudication, the United States began two or three decades ago to adopt arbitration, media- tion, negotiation, and other alternative dispute resolution (ADR) measures

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in cases involving divorce, small claims, and other disputes. Divorce attracted much early attention as a dispute that would benefit from ADR (Mansnerus 1994), and several states now require that spouses wishing to divorce receive mediation to try to save the marriage. Arbitration is also a common procedure used to process labor-management disputes, and media- tion and arbitration are increasingly being used in small-claims courts around the country (Wissler 1995). In New York City, about 85 percent of small-claims court cases are resolved by these two methods (Zane 2005). ADR’s development has been so widespread that it is often referred to as the ADR movement.

A rapidly growing literature addresses the features and techniques of ADR and discusses its advantages and disadvantages (Grenig 2005; Mar- shall, Picou, and Schlichtmann 2004; Nolan-Haley 2001; Ware 2001). Propo- nents say ADR has several advantages over adjudication. First, it saves time and money. Second, it helps avoid the escalation of conflict that often accom- panies adjudication and may even aid in reconciling the disputing parties. Third, because ADR is more informal and less rigid than adjudication, it is better able to consider the disputants’ personal needs and other nonlegal and nonfactual aspects of a case. Fourth, this informality also leads dis- putants to be less stressed and more satisfied with the procedures than they would be with adjudication.

Critics dispute some of these points and also indicate certain problems in the use of ADR. While generally acknowledging the first three points on time and money, escalation, and informality, they question whether ADR necessarily results in more satisfied disputants than adjudication. Their skepticism on this issue rests on research findings that disputants who go to trial in fact “tend to view the trial process favorably” (MacCoun 2005:177) whether or not they win their cases. Thus, litigants who use adjudication appear to be as satisfied with the processing of their disputes as those who use ADR.

In a related point, some scholars also question whether ADR can suc- ceed in resolving disputes as well as it does in the traditional societies stud- ied by anthropologists, whose research on dispute processing helped inspire ADR’s growth. Anthropologist Sally Engle Merry (1982), whose study of legal consciousness was discussed earlier, notes several features of media- tion in small societies that contribute to its effectiveness. First, it usually occurs soon after a dispute arises, before the disputants’ positions have had time to harden. Second, it occurs in public, allowing onlookers to voice their views of the disputants’ conduct. Third, many hours or days of mediation may be needed before a settlement is reached. Fourth, after a settlement is reached, the outcome, including compensation, is put into effect as soon as possible, again often in front of onlookers. Fifth, mediators are usually respected, influential members of the community instead of unknown out- siders, and they are usually also familiar with disputants’ personal back- grounds. Both their community stature and their personal knowledge of the

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disputants enhance their mediation skills. Sixth, the mediator and onlookers use informal social control mechanisms, including gossip and ridicule and possible violence, to pressure the disputants to reach a compromise.

Although all these features help make mediation effective in premod- ern societies, Merry (1982) says they do not characterize mediation in the United States. In this country, mediation usually takes place long after a dis- pute arises, allowing positions to harden, and it occurs in private. Thus, the pressure of public opinion that is so important in small societies is lacking in U.S. mediation. As well, the mediator is typically a stranger to the disputants and has no particular community stature; both these aspects reduce the mediator ’s effectiveness. Moreover, because the disputants usually are not part of the same network of kin and friends, they lack social incentives and pressure to reach a settlement. Instead, many mediation programs rely on the threat of court intervention to produce a settlement. To the extent this is true, mediation ironically recreates some of the problems with adjudication that led to the rise of mediation and other ADR programs. Because media- tion also lacks due process, she adds, it may increase government control over individuals without legal protections.

Anthropologist Laura Nader (2002:139) argues that the growth of ADR since the 1970s reflects a larger shift in the United States “from a concern with justice to a concern with harmony and efficiency.” ADR became popu- lar, she says, in part because many judges and public officials were dismayed by the increase in litigation stemming from the expansion of civil rights, women’s rights, and other legal rights during the 1960s and 1970s and by lawsuits against businesses. Because ADR lacks the adversariness that enabled litigation to advance these rights, Nader says, ADR resembles “a pacification scheme, an attempt on the part of powerful interests in law and in economics to stem litigation by the masses, disguised by the rhetoric of an imaginary litigation explosion” (p. 144). As should be evident, Nader thinks that ADR is less able than litigation to address the root causes of social prob- lems and to achieve social justice. She is also critical of mandatory media- tion, which she says is secretive and lacks legal protections and, in divorce cases, is disadvantageous for women because it ignores their lack of power in a marriage.

Other scholars extend this last concern to the use of ADR in divorce and paternity cases in which violence has been an issue (Fisher, Vidmar, and Ellis 1993; Grillo 1991; Rimelspach 2001). According to these scholars, mandatory mediation in such cases suggests that domestic violence is a rela- tionship problem rather than a real crime and sends the wrong message to the abuser that his conduct is not criminal. Moreover, in the small, private setting in which such mediation occurs, the abuser may continue to try to control the woman, who may fear for her safety simply by being near him. In addition, successful mediation requires that both parties honestly try to com- promise, yet in a battering relationship the abuser will normally be quite reluctant to do so. Moreover, the woman who is being abused may not be the

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best advocate for her own interests, as the fear and intimidation she feels at home is likely to continue during the mediation process. Finally, if the woman has been living apart from her abuser and in a location unknown to him, mediation may provide him the means to discover where she lives.

Proponents of mediation in these cases say that mediators are trained to handle their special circumstances and that divorce is much better treated through mediation than through the adversarial legal system, which can escalate an already bad situation (Rimelspach 2001). Thus, mediation may lessen a woman’s abuse, while litigation may worsen it. As this overview illustrates, mediation in divorce cases continues to arouse much controversy, and further research is needed to understand how it may help or hurt the sit- uation of women whose husbands are abusing them.

Summary

1. Every society has disputes that occur in many ways and for many rea- sons, and every society has accepted ways of processing disputes. In general, an aggrieved party must make three decisions that are key to the disputing process: (1) whether a situation is unjust, (2) whether to confront the offending party with the problem, and (3) whether to take the problem to a third party if the two disputing parties cannot resolve the problem.

2. Several methods of dispute processing exist (1) lumping it, (2) avoidance, (3) coercion, (4) negotiation, (5) mediation, (6) arbitration, and (7) adjudi- cation. Mediation, arbitration, and adjudication all involve a third party, a significant feature to scholars of dispute processing. The involvement of a third party takes the dispute beyond the two disputing parties and, there- fore, brings it to the attention of people other than the disputants them- selves. In this way, the dispute becomes more public than it was before.

3. A key feature of adjudication is that it involves a win–lose outcome instead of the compromise outcome ideally achieved by mediation. As a result, adjudication does not really address the causes of the dispute and may well worsen the relationship between the parties. Many pre- modern societies favor negotiation and mediation over adjudication because the former are more likely than the latter to produce the recon- ciliation these societies favor.

4. Several sets of factors seem to explain the preferences of societies for one form of dispute processing over another. Anthropologists stress the importance of the nature of social relationships in a society for its dis- pute processing preferences. Small societies have relatively few people who tend to know each other very well and to value the close relation- ships they have. For this reason, they favor reconciliation and thus compromise outcomes in the settlement of disputes. Because large,

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industrial societies thus lack an emphasis on enduring relationships, they care less about compromise outcomes and are more likely to favor arbitration or adjudication.

5. Many scholars also think that a society’s legal culture matters for its choice of dispute processing procedures. Legal culture refers to a soci- ety’s general views about the law and about specific aspects of the legal system and its perceptions about using the law to address disputes. The view that litigating is wrong characterizes many traditional soci- eties and also characterized many communities earlier in American history. Japan has also been considered a society whose legal culture disapproves of litigation, but some scholars minimize the importance of Japanese culture in this regard and instead point to other factors.

6. Several individual-level factors also help explain why some individuals within a given society are more or less likely than other individuals to lit- igate. These include the nature of the relationship, the extent of power dif- ference in the relationship, and personality traits such as assertiveness.

7. Early research found that the poor were less likely to use the courts, but recent research finds a more complex situation. One branch of this research says the poor and people of color use the courts less primarily because of the kinds of problems these citizens experience. Another branch of research that uses community and ethnographic studies finds low court use overall and few, if any, differences by social class and race/ethnicity.

8. Although many scholars think that until recently men litigated much more than women, the reasons for this earlier gender gap remain in dispute. Whatever the reason, the traditional gender gap in litigation seems to have narrowed and even disappeared for many types of grievances. Scholars attribute these changes to the increased education and other resources that women have gained in recent decades, their greater involvement in the business and professional worlds, and the nation’s expansion of the legal rights of women.

9. Many communities earlier in U.S. history were loathe to litigate. Wish- ing to preserve their own traditions, fearing that litigation would dis- rupt their harmony by exacerbating conflict and by implying mutual mistrust, and mistrusting lawyers, these communities developed dis- pute processing methods that avoided litigation. They included Puri- tans and Quakers in colonial America, several utopian communities during the early 1800s in New England and the Midwest, and immi- grant communities in the nation’s large cities during the early 1900s.

10. Contemporary studies of legal consciousness have tried to understand how Americans’ everyday understandings of and experiences with the law have shaped their willingness to use lawyers and courts and also how law and other aspects of society have shaped legal consciousness. These studies find that Americans are reluctant to litigate for a variety of reasons.

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11. Research on rights consciousness finds that Americans have a strong sense of their rights as reflected in the Declaration of Independence and in claims of the social movements of recent decades. It also finds that Americans believe that aggrieved groups are entitled to pursue their rights through the legal and political process, even though most Americans with grievances do not do so.

12. The United States is said to have a litigation crisis, characterized by an increasing amount of tort suits and other litigation and by extremely high jury awards. Media coverage of court cases contributes to percep- tions of a litigation crisis. However, an extensive body of research finds that the amount of litigation is not increasing at a rapid pace in the state courts and that extremely large jury awards are rare. This body of research thus challenges the perception of a litigation crisis.

13. Alternative dispute resolution (ADR) has become popular in the United States during the last few decades. Proponents say that it saves time and money, helps avoid the escalation of conflict that often accompanies adjudication, considers disputants’ personal needs, and increases their satisfaction with the resolution of their case. Critics say ADR may not increase disputants’ satisfaction, and they question whether ADR can succeed in resolving disputes as well as it does in the traditional soci- eties studied by anthropologists.

Key Terms

Adjudication Alternative dispute

resolution Arbitration

Avoidance Coercion Legal consciousness Legal culture

Lumping it Mediation Negotiation

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