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Thinking About Law and Its Alternatives: Abel et al. and the Debate Over Informal Justice

  • J. M. FitzGerald


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1 See Calvin Trillin, Harvard Law, New Yorker, Mar. 26, 1984, at 70, where he describes it this way: “Critical Legal Studies is sometimes explained as a way of ‘decoding’ the legal system to show that it is incoherent where it presents itself as logical, and that it is loaded in favor of one class where it appears to be accessible to all, and that it operates not to produce clear doctrines but to mask essential contradictions”.

2 . Christie, Nils, Conflicts as Property, 17 Brit. J. Criminology 1 (1977).

3 David Sudnow, Normal Crimes: Sociological Features of the Penal Code in a Public Defender Office, 12 Soc. Probs. 255 (1962);Stuart A. Scheingold, The Politics of Rights (New Haven: Yale University Press, 1974); Robert Lefcourt, ed., Law Against the People (New York: Random House, 1971).

4 . See, e.g., Danzig, Richard, Toward the Creation of a Complementary, Decentralized System of Criminal Justice, 26 Stan. L. Rev. 1 (1973).

5 . Berman, Jesse, The Cuban Popular Tribunals, 69 Colum. L. Rev. 1317 (1969); Lubman, Stanley, Mao and Mediation: Politics and Dispute Resolution in Communist China, 55 Calif. L. Rev. 1284 (1967).

6 . Burger, Warren, Agenda for 2000 A.D.-A Need for Systematic Anticipation, 70 F.R.D. 83 (1976) (address delivered at the National Conference on the Causes of Popular Dissatisfaction with the Administration of Justice, Apr. 7–9, 1976, St. Paul, Minn.).

7 E. P. Thompson, Whigs and Hunters (New York: Pantheon Books, 1975).

8 Eugene D. Genovese, Roll, Jordan, Roll 25–49 (New York: Pantheon Books, 1974).

9 Richard Quinney, Critique of Legal Order: Crime Control in Capitalist Society (Boston: Little. Brown & Co., 1974).

10 See, e.g., Max Horkheimer, Dawn and Decline 71–72 (New York: Seabury Press, 1978).

11 In fairness, it is also true that much of conventional social science analysis of law and society is vulnerable to a similar criticism.

12 Talcott Parsons, The Law and Social Control, in William M. Evan, ed., Law and Sociology (New York: Free Press of Glencoe, 1962).

13 . Trubek, David M., Where the Action Is: Critical Legal Studies and Empiricism, 36 Stan. L. Rev. 575 (1984).

14 Jack Ladinsky & Charles Susmilch, Major Findings of the Milwaukee Consumer Dispute 9udy (paper presented at the conference, “When Consumers Complain,” June 10, 1982, Madison, Wis.).

15 Jeffrey FitzGerald & Richard Miller, The Use of Lawyers and Their Effectiveness in Civil Legal Disputes: A Cross-National Study (unpublished manuscript).

16 . Sarat, Austin, Alternatives in Dispute Processing: Litigation in a Small Claims Court, 10 Law & Soc'y Rev. 339 (1976).

17 . Schwartz, Richard D., Social Factors in the Development of Legal Control: A Case Study of Two Israeli Settlements, 63 Yale L.J. 471 (1954).

18 Trubek, supra note 13.

19 Lazerson shows how the landlords responded to this by pressing for another type of informal procedure, in which they fared considerably better.

20 Hubert L. Will, The Role of the Judge in the Settlement Process (Washington: Federal Judicial Center, 1977).

21 . Woll, Peter, Informal Administrative Adjudication: Summary of Findings, 7 U.C.L.A. L. Rev. 436 (1960).

22 Joel F. Handler, Controlling Official Behavior in Welfare Administration, in Jacobus ten Broek, ed., The Law of the Poor (San Francisco: Chandler Publishing Co., 1966).

23 Eugene Bardach & Robert A. Kagan, Going by the Book (Philadelphia: Temple University Press, 1982).

24 Roman Tomasic & Malcolm M. Feeley. eds., Neighborhood Justice: Assessment for an Emerging Idea (New York: Longman, 1982).

25 Jack Ladinsky, Stewart Macaulay, & Jill Anderson, The Milwaukee Dispute Mapping Projcct: A Preliminary Report, Dispute Processing Research Program working paper 1979–3 (University of Wiscon sin-Madison Law School, 1979).

26 Ladinsky & Susmilch, supra note 14.

27 M. P. Baumgartner, Aspects of Social Control in a Suburban Town (paper presented at annual meeting of the American Sociological Association, New York, 1980).

28 Leonard Buckle & Susan Thomas Buckle, Varieties of Informal Dispute Processing in American Neighborhoods: Some Reasons for Judicial Reform (1982) (unpublished draft manuscript).

29 Sarat, supra note 16.

30 John N. Hazard, Settling Disputes in Soviet Society: The Formative Years of Legal Institutions (New York: Columbia University Press, 1960).

31 Herman, supra note 5.

32 Lubman, supra note 5.

33 Fred Dubow, Justice for People: Law and Politics in the Lower Courts of Tanzania (Ph.D. diss., University of California-Berkeley, 1973).

The author acknowledges the assistance he has obtained from comments on an earlier draft of this paper by Howard Erlanger and Richard Abel. Richard Abel's comments were particularly helpful in ensuring that the presentation of the complex set of materials in the two volumes is as accurate as possible. The author remains solely responsible for the views and judgments expressed in this article, however.


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