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Dispute Processing and a Longitudinal Approach to Trial Courts

Published online by Cambridge University Press:  01 July 2024

Lynn Mather
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Abstract

This article suggests ways to integrate the insights and findings of two rather distinct fields: docket-based, longitudinal studies of trial courts and studies of dispute processing. In particular, I argue that longitudinal research on courts would benefit enormously from the incorporation of concepts and data on dispute processing. For example, instead of taking court cases as the starting point for study, longitudinal research should explore the multistage and transformative nature of disputing. Historical data should also be collected on the nature of the relationships between opposing litigants, on the roles played by participants other than the litigants (lawyers, supporters, audiences, third parties), and on the nature of processes within courts and within alternative community institutions for handling disputes. Longitudinal research can also contribute to our understanding of dispute processing by showing how current processes have been shaped by past use, and how changes in institutions and legal doctrine have influenced the definition and processing of disputes. I also discuss the weaknesses shared by some of the research in both fields, such as a greater concern for process than for outcome, a tendency to ignore political aspects of litigation, and an overemphasis on individual disputing behavior. I conclude by suggesting that longitudinal research on trial courts should pay greater attention to change in ideas about law and to shifting conceptions of right and wrong, cause and responsibility, and problem definition.

Type
Part III: New Theory for Longitudinal Trial Court Research
Information
Law & Society Review , Volume 24 , Issue 2: Special Issue: Longitudinal Studies of Trial Courts , 1990 , pp. 357 - 370
Copyright
Copyright © 1990 The Law and Society Association.

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References

1 See, e.g., Llewellyn and Hoebel (1941), Nader (1969a), Gulliver (1963), and Nader and Todd (1978).

2 Compare, for example, the definitions of Nader and Todd (1978: 14–15), Gulliver (1979: 75), Abel (1973: 227), and Miller and Sarat (1980–81: 527–29).

3 Other categorizations of stages in the disputing process are provided by Silberman (1985) and Boyum (1983), but compare Cooter and Rubinfeld (1990). I have some trouble with the distinction between “naming” and “blaming,” since definitions of problems, as social and linguistic constructs, tend to join facts and norms (Mather and Yngvesson, 1980–81; Comaroff and Roberts, 1977). Thus the very act of naming incorporates the blaming. Or, as Silberman (1985: 4) writes, “there is no reason to believe that the cognitive and evaluative aspects of such events are separable.”

4 For further discussion of these and other factors, see Sarat and Grossman (1975) and Nader and Todd (1978). Silberman (1985) shows how certain factors may have a greater effect at one stage of the disputing process than at others.

5 The continuing relations argument is found in some of the earliest and most significant works in the law and society field. Macaulay (1963) showed that people in business avoid contract law in planning exchanges and seldom use legal sanctions to settle disputes, believing that such intervention would disrupt the ongoing business relationships. Nader (1965), Gulliver (1963), Collier (1973), and other legal anthropologists found that among kin groups or within small, face-to-face societies people prefer to resolve disputes through informal, compromise-oriented procedures to preserve harmony within the group. Gluckman (1955) made this point in terms of multiplex as versus single-interest relationships, arguing that disputants with multiplex relations use processes that emphasize conciliation and that are directed toward the maintenance of continuing relations. Sociologist Black (1970) pointed to the importance of relational distance on the mobilization of law based upon his finding that offenses were less likely to be labeled crimes if they occurred between closely related people such as family or friends; he later expanded this argument in his 1976 book.

6 See Sarat and Grossman (1975), McIntosh (1983), and Munger (1988).

7 Audience expectations may significantly constrain or influence the actions of those involved in the dispute, a point perhaps illustrated by Burstein's (1987) research. His comparison of equal opportunity litigation by four minority groups shows greater federal resources for support and a more favorable win-loss ratio in complaints of racial or sexual discrimination than in complaints of discrimination based on religion or national origin. Although the law is the same for all four groups, I would argue that the audience is not; that is, both a broad public and a relevant public have been far stronger and more attentive to racial and sexual discrimination than to discrimination on other grounds.

8 To use the language of strategy, the litigation process should not be seen as one continuous bargaining game (as suggested by Cooter and Rubinfeld, 1990) but rather as a sequential series of bargaining games under different institutional structures and with different sets of participants and preferred solutions. Depending upon the interaction and roles played by litigants, lawyers, other supporters, the audience, and the judge, the feasibility of arriving at different alternatives may change, thus presenting a series of games.

9 For critical discussions of dispute processing see Fitzgerald and Dickins (1980–81), Lempert (1980–81), Kidder (1980–81), Cain and Kulcsar (1981–82), Merry and Silbey (1984), and Menkel-Meadow (1985).

10 Some dispute processing research has specifically attempted to incorporate a dynamic view of conflict management in society. Emphasis on transformation in the normative framework used to define a dispute provides a linkage between the micro picture of individual disputing and the macro view of law, social order, and social change (Mather and Yngvesson, 1980-81).