See Attachment
92
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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Chapter 4 • Law and Dispute Processing 93
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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94 Chapter 4 • Law and Dispute Processing
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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Chapter 4 • Law and Dispute Processing 95
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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96 Chapter 4 • Law and Dispute Processing
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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Chapter 4 • Law and Dispute Processing 97
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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Chapter 4 • Law and Dispute Processing 99
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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100 Chapter 4 • Law and Dispute Processing
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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Chapter 4 • Law and Dispute Processing 101
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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Chapter 4 • Law and Dispute Processing 103
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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104 Chapter 4 • Law and Dispute Processing
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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Chapter 4 • Law and Dispute Processing 105
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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106 Chapter 4 • Law and Dispute Processing
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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Chapter 4 • Law and Dispute Processing 107
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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108 Chapter 4 • Law and Dispute Processing
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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Chapter 4 • Law and Dispute Processing 109
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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110 Chapter 4 • Law and Dispute Processing
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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Chapter 4 • Law and Dispute Processing 111
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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112 Chapter 4 • Law and Dispute Processing
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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Chapter 4 • Law and Dispute Processing 115
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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Chapter 4 • Law and Dispute Processing 117
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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Chapter 4 • Law and Dispute Processing 119
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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Chapter 4 • Law and Dispute Processing 121
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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Chapter 4 • Law and Dispute Processing 123
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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124 Chapter 4 • Law and Dispute Processing
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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Chapter 4 • Law and Dispute Processing 125
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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126 Chapter 4 • Law and Dispute Processing
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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Chapter 4 • Law and Dispute Processing 127
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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128 Chapter 4 • Law and Dispute Processing
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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Chapter 4 • Law and Dispute Processing 129
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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130 Chapter 4 • Law and Dispute Processing
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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Chapter 4 • Law and Dispute Processing 131
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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132 Chapter 4 • Law and Dispute Processing
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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Chapter 4 • Law and Dispute Processing 133
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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Assignment Grading Rubric
Course: LS308 Unit: 4
Copyright Kaplan University
Unit 4 – Writing Assignment
As discussed in Chapter 4 of the textbook, anthropologists Laura Nader and Harry F. Todd, Jr.
developed a typology describing stages in the dispute process. Chapter 4 also discusses a different
typology describing stages in the dispute process created by socio-legal scholars William L. F.
Felstiner, Richard L. Abel, and Austin Sarat. For this written assignment, please write a 3 page paper
addressing the following:
1. Identify and describe the three stages in the dispute process as developed by Nader and
Todd.
2. Provide an example of each stage in the dispute process for
Nader and Todd’s typology.
3. Identify and describe the stages in the dispute process developed by Felstiner, Abel, and
Sarat.
4. Explain the differences and/or similarities between Felstiner, Abel, and Sarat’s typology and
Nader and Todd’s typology.
For this assignment, you will rely heavily on the textbook. However, in addition to your text, please
research one additional source to support your paper. Cite to all sources using APA format.
In addition to fulfilling the specifics of the assignment, a successful paper must also meet the
following criteria:
Length of the paper should be 3 pages, excluding cover page and references.
Viewpoint and purpose should be clearly established and sustained.
Assignment should follow the conventions of Standard American English (correct
grammar, punctuation, etc.).
Writing should be well ordered, logical and unified, as well as original and insightful.
Your work should display superior content, organization, style, and mechanics.
Appropriate citation style should be followed.
Submit the memo to the Unit 4 Dropbox by the end of Unit 4.
Submitting your Writing Assignment
Put your project in a Word document. Save it in a location and with a name that you will
remember. When you are ready to submit it, click on the Dropbox and complete the steps
below:
Click the link that says “Submit an Assignment.” In the ‘Submit to Basket’ menu, select Unit 4:
Assignment.
In the “Comments” field, include at least the title of your project.
Click the “Add Attachments” button.
Follow the steps listed to attach your Word document. To view your graded work, come back
to the Dropbox or go to the Gradebook after your instructor has evaluated it. Make sure that
you save a copy of your submitted assignment.