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Litigation in the Federal Courts: A Comparative Perspective

Published online by Cambridge University Press:  01 July 2024

Joel B. Grossman  and
Austin Sarat
Joel B. Grossman
Affiliation:
University of Wisconsin, Madison
Austin Sarat
Affiliation:
Amherst College
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Extract

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

Type
Research Article
Information
Law & Society Review , Volume 9 , Issue 2: Litigation and Dispute Processing: Part II , Winter 1975 , pp. 321 - 346
Copyright
Copyright © 1975 The Law and Society Association

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Footnotes

*

An earlier version of this paper was delivered at the 1974 Annual Meeting of the American Political Science Association. The authors wish to acknowledge with gratitude the efforts of Gary Bunch, Daniel Dunn, Max Ellis and James Robert Kirk in collecting, coding, and processing the data used in this paper. Lawrence Baum, Bliss Cartwright, Mary Grossman, Robert Kidder, Marc Galanter, Jack Schlegel and Richard P.Y. Li read the manuscript and made many excellent suggestions. Indispensable financial support was provided by the Graduate Research Committee and the Center for Law and Behavioral Science at the University of Wisconsin.

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