¹ The opening shot in the Hurst revolution was the publication of his Growth of American Law: The Lawmakers in 1950. Perhaps the most influential of his many books was Law and the Conditions of Freedom in the Nineteenth-Century United States (1956). For a brief overview of the history of legal history see Friedman (1984); for a different slant, see Gordon (1984b). For another view of the influence of Hurst on longitudinal studies and on law and society theory in general, see Munger (1988).

² Hurst in Laurent (1959: xvii) reminds us that the data are relevant “not only to the history of the legal system itself, but also to the story of the law's living relation to general values and processes of the society.” In fairness to the neglecters and forgetters of Laurent's book, it should be pointed out that the book consists mostly of tables and not much analysis or explanation.

³ Toharia had been trained in law in Madrid and then earned a Ph.D. in sociology at Yale University.

⁴ This seemed at the time not only plausible but also a general phenomenon in the modernizing Western world. Industrialization would at first bring about an increase in litigation, but this would be followed by a period of stagnation and decline. The reasons were simple: A mature industrial society should disfavor litigation, which interferes with a vigorous, ongoing economic life; hence in such a society, slow, hidebound, expensive courts are actually functional. See Friedman (1976: 25, 33).

Gutiérrez (1979: 240–41), studying the courts of Costa Rica longitudinally for the period 1945–70, found an increase in litigation rates, but he predicted, on the basis of the theories just mentioned, that litigation was likely to decline as the country modernized.

⁵ See the discussion of the Macaulay thesis below. One might also mention the work of the Civil Litigation Research Project (CLRP), which also operated out of the University of Wisconsin, as an example of the general attitude in the law and society community toward litigation as such. CLRP tried to study the life cycle of disputes, that is, the way in which disputes arise and are dealt with in “real life”; only a few such disputes ever turn into lawsuits, of course, which was one of the issues that the project examined. On CLRP, see Trubek (1980–81a). One should mention as well the great research interest in what is known as “alternative dispute resolution.”

⁶ Some material on Scandinavian litigation rates had also appeared in Blegvad et al. (1973: 105–9).

⁷ Newspapers and magazines regularly reported various horror stories about the litigation explosion, and scholars wrote articles denouncing “hyperlexis” and similar atrocities. See, e.g., Manning (1977).

⁸ For a summary of the literature on this point see Galanter (1983a); Friedman (1985: ch. 2); see also Galanter (1986b).

⁹ The Family and Commercial Disputes Study, sponsored by the U.S. Justice Department and conducted by Arthur Young & Co., and Public Sector Research, Inc., attempted to “replicate on a national scale” the study by Friedman and Percival by examining state trial courts in five counties scattered about the country. Some of the data from this study are summarized in Lieberman (1984: 48 ff.). A memorandum by J.J. Perlstein dated January 21, 1981, also sums up the findings. The two main foci of the study were “changes in the frequency of filings in selected categories of cases” and “the courts' formal involvement in the disposition of particular actions,” that is, its actual role in dispute resolution. The findings were “mixed.” Some of the trial courts behaved very much like the two California courts studied by Friedman and Percival, but in certain regards others did not. See also McIntosh (1980–81).

Daniels (1985) found that only a small percentage of filed matters led to contested hearings on trials but that this pattern had held firm over time, which puts the findings for the Illinois counties he examined somewhat out of step with those in the other studies.

¹⁰ There is of course a large literature on plea bargaining; see, e.g., Mather (1979a). On the history of plea bargaining, see Friedman (1979); Heumann (1975).

¹¹ In the late 1970s, the findings of Toharia's study and of the American studies seemed to justify more sweeping generalizations than those findings do today; see Toharia (1987: 70) and McIntosh (1980–81: 846–47), who states that the rate of civil litigation in the St. Louis Circuit Court “exhibits a nonlinear relationship with socioeconomic development.”

¹² The Spanish figures were, however, the most dramatic. There were very modest increases in England and Wales, and striking increases in Belgium and France. In the Federal Republic of German, however, there was a slight decrease.

¹³ The evidence for post-World War II jury behavior and the size of awards comes most notably from studies sponsored by the Rand Corporation; see Shanley and Peterson (1983). On the late nineteenth-century situation, see Friedman (1987); another longitudinal study of tort actions is Munger (1987a).

¹⁴ They admit that the evidence for such a surge in contract cases is much weaker in state courts; however, see the data on Florida in Gifford and Nye (1987).

¹⁵ See also Friedman (1965) on the appellate caseload of the Wisconsin Supreme Court in three historical periods.

¹⁶ Toharia (1987: 137) himself, on the contrary, thinks of the findings of his second study as the temporary phenomenon. He feels that the best explanation for the rise in Spanish litigation in the 1970s is the “important and sustained economic crisis” of that decade. Thus, the “litigation explosion” in Spain in that decade is best looked at as “a transitory phenomenon”; when the crisis abates, the level of litigation will return to the patterns that had been established for almost a century.

¹⁷ I use this term rather than “legalistic,” which has pejorative overtones and in any event is quite misleading. “Legalistic” implies some kind of wooden, bureaucratic sticklerism, which in my view is absolutely false to American legal culture. By “legalized” I mean two things: First, relationships are subject to law or legal processes in various senses rather than defined as completely beyond the reach of such process; students' or prisoners' rights thus represent a higher stage of legalization than leaving students or prisoners absolutely to the tender mercies of authorities. Second, a process is “legalized” to the extent that it takes on some of the aspects of judicial process. For example, tenure decisions today are more “legalized” than they were two generations ago. There has been considerable national and international discussion of legalization. See, e.g., Werle (1982).

¹⁸ There is surprisingly little empirical study of civil rights litigation, but see Eisenberg (1982).

¹⁹ This is a surmise, a hypothesis, if you will. I do not mean to suggest, of course, that procedural justice is not a matter of importance to people; it most surely is, and there is a body of research on what people think of as procedural justice. See, e.g., Tyler (1988).