We reach, then, not a simple conclusion (law = class power) but a complex and contradictory one. On the one hand, it is true that the law did mediate class relations to the advantage of the rulers; not only is this so, but … the law became a superb instrument by which these rulers were able to impose new definitions of property to their even greater advantage. … On the other hand, the law mediated these class relations through legal forms, which imposed, again and again, inhibitions upon the actions of the rulers. [Thompson, 1975:264]

As always in social life, the heart of the mystery lies in the relationship between the struggle for power and the beliefs people hold about what is good for them and what they are capable of achieving. That relationship is the cave into which we must follow the enigma. [Unger, 1976b:242]

This paper visualizes legal services as one of various alternative paths to delivering legality (i.e., the benefits which access to law confers upon actors). It challenges the assumption that deficiencies in access to law can be most effectively remedied by providing the services of lawyers. It suggests that in some cases there are excessive costs of delivering legality through the medium of legal services and that in other cases legal services are insufficient without some admixture of other factors. Among the alternatives considered are (a) modification of rules systems (e.g., no-fault schemes, simplified transactions); (b) modification of institutions for applying rules (e.g., departures from the court model by making institutions simple, mediative, proactive, private, etc.); (c) enhancement of the capabilities of the parties (personal competence, organizational capacity to utilize legal services, etc.). It is argued that lack of capability of parties poses the most fundamental barrier to access and that upgrading of party capability holds the greatest promise for promoting access to legality. Evidence is adduced for the proposition that organizational structure is a key factor in determining the ability of parties to utilize the legal system. Alternative ways in which various interests can attain the benefits of organization are considered. Finally, research possibilities associated with these themes are sketched.

The two articles that follow contribute to the mapping of dispute behavior in contemporary society. Hannigan (1977) describes how a newpaper action line, or ombudsman, handles consumer disputes. Best and Andreasen (1977) report the findings of their survey of consumer experiences and what consumers did about the problems they encountered. These essays represent complementary approaches to the study of how people and institutions respond to common consumer disputes. I will begin by indicating where they fit into the evolving tradition of sociolegal research and how they add to our still redimentary understanding of dispute behavior.

Research concerning racial discrimination within the criminal justice system has focused largely upon the police and the courts. There is reason to believe, however, that differential treatment may be more common in less visible proceedings. This research addresses that possibility through an examination of the cases of 243 prisoners who appeared before a parole board from October 1, 1970, through September 30, 1971. There is no evidence of direct racial discrimination. There is evidence, however, that the board differentiated between black and white prisoners in selecting and weighting information when deciding parole. Compared to white prisoners, black prisoners had an additional criterion to meet in order to be paroled—participation in institutional treatment programs. The imposition of this additional criterion indirectly resulted in racial inequities. Black parolees who were treatment participants served a significantly longer portion of their sentence than did white treatment participants. The few black prisoners who were paroled without participating in treatment served a shorter proportion of their sentence than other prisoners. These few black prisoners were older, more likely to be property offenders and had slightly more prior convictions than black treatment participants. These findings are interpreted as indicating a bias against racial militancy.

This study examines the factors that determine the probability that a very common form of deviant behavior, shoplifting, will be detected, reported, and sanctioned. Data obtained both from self-reported crime, and from experiments in which researchers actually shoplifted goods from supermarkets and department stores with the authorization of their executive officers but without the knowledge of store employees, indicate that enforcement of the norm is highly selective. Less than 10 percent of all shoplifting is detected, and customers appear unwilling to report even flagrant cases. Even with an announced policy of full reporting and prosecution, only 70 percent of the shoplifting detected is reported, and only 55 percent is sanctioned. Foreigners, adults, and blue-collar workers are disproportionately represented among those sanctioned.

These findings challenge the common assumption that norms backed by legal sanctions are highly effective. One reason may be that the division of labor between stores, which detect, and police and prosecutor, who sanction, completes the differentiation of moral and legal norms, subverting the effectiveness of both. The results also highlight the misleading nature of criminal statistics, which purport to measure crime but in fact describe the behavior of detecting and enforcing agencies.

After a good deal of thought I have decided not to respond directly to Professor Trubek's exhaustive review of The Dialectics of Legal Repression, but will rather leave it to readers of my book to determine for themselves the adequacy of his description, analysis, and evaluation of the material contained therein. However, insofar as Professor Trubek also refers briefly in his essay to my “more recent,” and until now unpublished, work, it seems appropriate to present a sample of this work, especially since Trubek himself argues that it entails a “major refinement” which “allows Balbus to explain what remains unexplained in The Dialectics.” Indeed, in certain respects the following essay constitutes an autocritique of the theoretical analysis in my book, and a comparison of the two will thus permit the reader to assess indirectly the extent of my agreement with Trubek's critique. At the same time, what follows also constitutes an implicit and, at times explicit, critique of Trubek's own effort to elaborate and apply an alternative to my position, the effort he calls “critical social thought about law.”

The traditional emphasis on individual legal problems and their solution through “access” to legal services is seen here as being inadequate to produce general change in economic and political institutions. The concept of access is explored in the forms of freedom of information, prepaid legal services, and extralegal group action; examples of each are given.

Institutional reform, it is suggested, can be brought about by creating a balance of power between consumers and large institutions. A “checkoff” system is described and put forward as a means of organizing consumers to use the evidence of individual complaints to advocate institutional change, something that legal services, as presently structured, do not do. Monopolies such as the utilities and the post office would be required by state law to solicit voluntary contributions from their customers to support a consumer action movement—“a piggyback ride so they can organize themselves.”

The interrelationships between group legal services and these piggyback consumer groups are pointed out: the accumulation of individual case evidence and the promotion of cooperative institutions that would provide legal representation as one of their satellite services. These lawyers could press for government reform of procedural restraints on consumer class actions.

Possible conflicting interests between conservative sponsoring consumer groups and their progressive legal service staff are recognized and ways to avoid them are discussed. One solution offered is to permit lawyers a broader range of activities by relaxing the legal profession's self-restrictions. Law schools are urged to reevaluate what they should teach and to require more analysis and investigation of government and corporate structures in their clinical education. This would ensure a starting point for the continuation of reform in the legal system.

This paper reports the results of a survey of 282 clients of Sound Off, a Canadian newspaper ombudsman. The data suggest that the newspaper ombudsman works best as a communication “facilitator” but is less effective as a dispute “mediator.” Furthermore, this service was found to be of least benefit to the socially advantaged who appear to use it to pursue more difficult problems. Nevertheless, 73 percent of the respondents indicated that they would use this “action line” service again if the need arose.

The title states the article's subject: the problems and possibilities of evaluating the competence of lawyers. It attempts to: (1) survey what has been written about the subject, commenting on the strengths and limitations of alternative approaches; (2) suggest those activities of lawyers which most influence the effectiveness of their performance and what competence means as to them; (3) indicate what are the principal problems inhibiting better performance evaluations and some ways to try to deal with these problems; and (4) propose some research tasks which may improve our capability as systematic and relatively objective evaluators.

The literature exhibits approximately five approaches to evaluating lawyer competence. Two are indirect: (1) measurement of competence by a lawyer's training and/or his or her performance on a certification examination and (2) assessment based upon a lawyer's status or reputation. These approaches are of limited value where, as in most present instances, there is no proven relationship between such measures and actual competent performance. The other three approaches focus on performance. The first judges performance in terms of successful and unsuccessful outcomes in advocacy. The second judges performance in terms of the avoidance of negligence. The third involves a more systematic and detailed evaluation of the ways lawyers carry out certain activities central to the services they offer. The article suggests how this last approach can be most effectively developed. In spite of the formidable problems raised by attempts to evaluate lawyers, the author is optimistic that such evaluation is possible and can be productive.

A survey of consumer reactions to common purchases was conducted in 1975. Consumers perceive problems with many products and services, and voice complaints concerning about one-third of those problems. Third-party complaint processors play a very small role in buyer-seller disputes. Household status and type of problem influence perception of problems and choice of action or inaction. Satisfactory resolutions occur in somewhat more than half of voiced complaint cases. To increase voicing and fair handling of complaints, procedural changes at the buyer-seller level are suggested; to improve treatment of complaints that are not resolved at the buyer-seller level, improvements in community small claims courts are suggested.

This paper analyzes the role of local political leaders in channeling the impact of national development programs on the processes of dispute handling in Zinacantan, a Maya Indian community in the highlands of Chiapas, Mexico. Although the development programs have caused individual Zinacantecos to become more aware of the benefits they might obtain by appealing to remedy agents outside of the Indian community, few cases are taken to Mexican authorities because Indian leaders, who have a vested interest in handling the disputes of constituents, have sought to preserve the popularity of traditional conciliatory procedures by altering the types of settlements they suggest to disputants. As a result, traditional conciliatory procedures are flourishing, but the substance of the settlements reached through such procedures has begun to change toward conformity with codified state and national laws where those laws conflict with traditional Indian custom.

We noted with considerable interest Leon Robertson's article (1976), in a recent issue of this journal, dealing with statistical measures of the effectiveness of helmet and daytime headlight laws for motorcyclists. For some time, proponents and opponents of such legislation have been trading enthusiastic arguments and impassioned denials, often including misleading statistical presentations. The result has been that most followers of this debate are left with their personal views and little in the way of substantive support for either side. Robertson uses what appear to be promising data bearing on the safety controversy but, in our view, he does not perform the analyses required to clear the muddled waters and he seriously misinterprets the statistics he employs.

There is a record of concern about the quality of legal services. And there is a record of the attempt to ensure quality through restricting the admission of persons to the practice of law. But beyond this, there is no “system” for, nor for that matter, any theory about, assuring the quality of legal services. This paper proposes such a system, and at the same time offers a theoretical framework for its development. And this is done despite the fact that it is highly unlikely that any such system will be utilized in the near future.

The paper develops its theoretical base, and its concrete proposals, from an extended examination of the systems of quality assurance which have been developed for medical care services. Given a sufficient degree of similarity between the medical care and legal service systems, analogical analysis is used.

The paper concludes that a quality assurance system can be fashioned for the provision of legal services, even though such a system is likely to remain a theoretical construct for the foreseeable future.

The comment by the Cohens on my article, “An Instance of Effective Legal Regulation” (1976), consists mainly of speculation about the fatality distributions and questions regarding the adequacy of the statistical models that I used to test for deviation from random fluctuation. Such speculation is unwarranted, and particularly so when the issue is public policy affecting human life. A point by point examination of the Cohens' comments indicates that they are without merit.