The Law and Society Reader II

Erik Larson, Patrick Schmidt

• Publisher: NYU Press
• Year: 2014
• ISBN:
  9781479878734
• Topic: Droit
• Subtopic: Théorie et pratique du droit

Law and society scholars challenge thecommon belief that law is simply a neutral tool by which society sets standardsand resolves disputes. Decades of research shows how much the nature ofcommunities, organizations, and the people inhabiting them affect how lawworks. Just as much, law shapes beliefs, behaviors, and wider socialstructures, but the connections are much more nuanced—and surprising—than manyexpect.

Law and SocietyReader II provides readers an accessible overview to the breadth of recent developmentsin this research tradition, bringing to life the developments in this dynamicfield. Following up a first Law andSociety Reader published in 1995, editors Erik W. Larson and Patrick D.Schmidt have compiled excerpts of 43 illuminating articles published since 1993in The Law & Society Review, theflagship journal of the Law and Society Association.

By its organizationand approach, this volume enables readers to join in discussing the key ideasof law and society research. The selections highlight the core insights anddevelopments in this research tradition, making these works indispensable forthose exploring the field and ideal for classroom use. Across sixconcisely-introduced sections, this volume analyzes inequality, lawyering, therelation between law and organizations, and the place of law in relation toother social institutions.

PART I

Inequalities

Most readers of this volume either have or will at some point experience renting an apartment or house. When renting, you almost certainly sign a lease agreement. Some renters may have a dispute with the property owner about the rent due or condition of the housing. Housing law influences how people experience such situations: What does the law require and encourage each party to do, now and later? Does the law give one party an advantage? Is it worth talking to a lawyer, much less taking the dispute to court? As noted in the introduction to this volume, law and society scholarship has its roots in a progressive academic tradition and an era in which political leaders sought to harness law to remedy social problems, such as reducing conflict between renters and owners or improving housing quality. Accordingly, law and society scholarship has long sought to understand how law is intertwined with social, political, and economic inequality.

If we understand inequality as structured or patterned differences between groups or individuals, we could ask questions about who benefits from law and how such differences come to be. A narrow explanation could attribute any differences in legal outcomes to differences in material resources. From this perspective, legal inequalities merely reflect other inequalities: those with more financial resources (such as property owners) can purchase superior legal services and may benefit from greater access to justice than those with fewer resources (such as tenants).

Sociolegal scholars, however, have demonstrated that legal inequalities do not come down merely to differences in resources. A fundamental insight is that law operates as a system: it has organized procedures and enduring connections to other elements of society. These organizational and structural features of law produce legal inequalities by influencing not only the inputs into the legal system, but also how the legal system processes cases to reach decisions. At the same time, this research tradition emphasizes that the legal system is a social system: it is not merely an automatic case-processing machine, but requires the active participation of people and organizations at all stages of decision making. For example, we take interest in how the owner-tenant relation is itself a legal relation and whether and how tenants, owners, courts, regulators, and others become involved in housing disputes.

Classical perspectives in the sociology of law show how the structure and organization of law associate with broader patterns of power and authority. (For more detailed, yet accessible, overviews, see Sutton 2001 and Deflem 2008). Max Weber recognized that legal systems develop as part of a larger pattern of changes in the social relations between rulers, officials, and those subject to rule. Weber pointed to the increasing role of rational bureaucracy—an official administration governed by written rules that establish authority and that direct operations—in shaping social and political life, particularly as its rules relate to law. Law that is itself more governed by written rules could be more predictable but also prove frustrating to those seeking to achieve goals not recognized by the formal legal system. An ascendant rational legal system grows more independent of other sources of power to influence decision making about important social and political issues. Accordingly, Weber’s legacy emphasizes the importance of understanding how the internal operations of law relate to power and how tensions between the formal rules of law and particular substantive ends that people want to achieve can affect social and political outcomes. Returning to the example of rental property, legal bureaucracy has myriad effects on housing: inspection and licensing procedures could define certain requirements for a space to be a bedroom, jurisdictions may establish specialized housing courts, and statutes may include provisions that automatically are part of any residential rental agreement even if not in an actual lease (such as rules concerning the return of a security deposit).

A trajectory of academic traditions (sociological jurisprudence, legal realism, and normative theory), however, asks scholars to examine how law itself acts in practice. Rather than provide a detailed lineage of these ideas, we focus on the similar foundational premises they left sociolegal scholars. The consequences of legal action (laws, court decisions) merit consideration, particularly because law can serve as a means of seeking social change. These consequences are not simply a function of legal doctrine, but also reflect how the legal system is connected to society. Finally, if law can respond to societal needs and demands, questions about who has access to law and how their voices enter into legal decision making deserve attention. For instance, reform efforts may seek to regulate rental housing as part of a community. Such ordinances may have different consequences if they take the form of establishing minimum standards of habitability or if they restrict the number of unrelated adults who may live in a single rental unit.

During the early years of law and society research, social scientists increased attention to the critical social science legacies derived from the writings of Karl Marx. Extending beyond social class, a new generation of scholars examined how the legal system intertwined with gender and racial inequalities. Although this critical tradition has consistently shown the importance of material resources, it also pays attention to the role ideas play in connecting law with inequality. Dominant ideas could influence notions of justice, assumptions of what is natural, and which issues were considered important to address. Related to rental housing, law may give greater priority to the property interests of mortgage lenders during a foreclosure rather than a tenant’s housing interest. Additionally, the rise of background screening may limit the availability of rental housing for people with criminal records, disproportionately affecting minority group members (Thacher 2008).

These traditions highlight how the legal system is connected to other parts of society while also retaining some independence from society, showing how the legal system might both reflect and produce inequalities. The articles in this section show how sociolegal scholars have built on these intellectual legacies in the study of inequality. Because the selections provide exposition of some of the classical insights and debates in law and society research, we merely preview the themes here. One theme is how law’s operation could affect inequalities. Galanter’s (1974) article asked how the legal system could systematically benefit some parties based on their different approaches to litigation and inspired subsequent scholars to examine how the structure and organization of law might benefit particular parties. A second line of research takes us inside legal decision making to examine how discretion might both reflect and reproduce inequalities. Finally, a persistent question facing law and society scholars is whether the power of law can be harnessed for progressive social change. Revisionist scholars, such as Rosenberg (2008), warned that legal strategies may have characteristics that fundamentally limit social change, although this perspective has generated significant debate. Together, these questions and the articles addressing them ask us to consider both the power of law as a force in society and the influence of society in the operation of law.

DOES LAW BENEFIT THOSE WITH THE MOST RESOURCES?

1

Do the “Haves” Still Come Out Ahead?

JOEL B. GROSSMAN, HERBERT M. KRITZER, AND STEWART MACAULAY

In [“Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Legal Change,” Marc] Galanter (1974) attempts to explain the outcome of trial court litigation in essentially structural terms. He discusses “the way in which the basic architecture of the legal system creates and limits the possibilities of using the system for redistributive change.” Galanter divides parties into “one shotters” and “repeat players.” A one shotter is a person, business, or organizational entity that deals with the legal system infrequently. The one shotter’s claims are too large (relative to their size) or too small (relative to the cost of remedies) to be managed routinely and rationally, but a one shotter’s interest in winning a particular case is very high.

A repeat player, on the other hand, has had, and anticipates having, repeated litigation. Repeat players have low stakes in the outcome of any particular case and have the resources to pursue their long-term interests. They can anticipate legal problems and can often structure transactions and compile a record to justify their actions. They develop expertise and have access to specialists who are skilled in dealing with particular types of cases or issues. They enjoy economies of scale and encounter low start-up costs for any particular case. For example, an automobile manufacturer may anticipate challenges to a particular part or system and thus develop legal strategies and invest in research to defend itself. Legal strategies can be modified and developed from one case, or group of cases, to the next. Repeat players can also benefit from informal relations with (and “educate”) institutional incumbents such as judges, hearing examiners, and court clerks. The credibility and legitimacy that flows from repeated contacts may help to sustain a repeat player’s claims.

Repeat players may not settle a particular case when a one shotter would do so. If they give in too easily in one case, it may affect the demands made in the next case. Yet they can play the odds and maximize gain over a series of cases even while suffering maximum loss in some. Seldom will one case be critically important. As a result, they consider questions of precedent over the long run and are able to “play for rules.” Repeat players may settle (often with low visibility) cases where they expect unfavorable verdicts or rule outcomes. They can trade symbolic defeats for tangible gains. One shotters, by definition, are necessarily more interested in immediate outcomes.

Abridged from Law & Society Review 33, no. 4 (1999): 803–10.

Galanter also focuses on litigation configurations. One shotters may sue one shotters. Such cases often are between parties who have some ongoing relationship and who are disputing over some indivisible good. Cost barriers will ration access to the legal system in many of these cases. Repeat players may also sue each other. The sanctions of long-term continuing relations (which they wish to maintain), however, tend to minimize such cases. Mediation, arbitration, and settlement may be better options. When repeat players are contesting issues of principle or individual rights, however, some authoritative resolution may be necessary and the risks or costs of defeat may have to be endured. Likewise, governmental units may find it difficult to settle high-visibility cases because of the unfavorable publicity likely to be generated. Of course, there are also disputes between repeat players who have no relationship to protect.

Perhaps the remaining two litigation patterns in Galanter’s matrix are more interesting. Repeat players may sue one shotters. Sometimes these cases take the form of stereotyped mass processing, bearing little resemblance to full-dress, adversarial litigation. Creditors seek default judgments, attachment of wages, property title confirmations, and so on. Traffic violations are processed routinely. Only a bare few are contested. A court in such cases serves more as an administrative office registering previously determined (or highly predictable) outcomes rather than as either an adjudicator or a locus for bargaining in the shadow of the law. Criminal prosecutions and administrative sanctions also fall into this category. Plea bargains and some settlements have to be approved by a judge, but the outcome is essentially determined elsewhere. The great bulk of litigation falls into this category. No particular case raises major public policy or legal concerns. Taken together, such cases reflect the increasingly bureaucratic attributes of a mass society set against an ideology of liberalism.

Finally, one shotters may sue repeat players. The one shotter may seek outside help to create leverage against an entity or organization with much greater power and resources. For example, a consumer is displeased with repairs to an automobile; an employee seeks redress from adverse working conditions or disputes a job termination; a tenant seeks to compel a landlord to make repairs to a dwelling. In such cases, according to Galanter, the advantages of repeat players are maximized. Although some one shotters do win such lawsuits (especially when they are supported by a third party that is itself a repeat player, such as the EEOC [Equal Employment Opportunity Commission], tenants’ union, or an environmental group or agency), the configuration of the parties and their disparate resources suggests that repeat players will prevail in a large majority of these cases.

Galanter also talks about how the nature of U.S. legal institutions increases the advantages of repeat players. Claims handling institutions are largely passive and reactive; the plaintiff or moving party must mobilize them and overcome cost barriers to access. Some of these barriers can be reduced by devices such as fee shifting and contingent fee arrangements, but access burdens still remain. Our adversarial system still assumes that the parties are endowed equally with economic resources, investigative opportunities, and legal skills, but that is rarely the case. Most U.S. legal institutions are also characterized by overload that inevitably affects the balance of advantages and favors those with resources. Overload often leads to delay, which is time consuming and discounts the value—or likelihood—of recovery. A litigant must have the resources to keep the case alive. Overload also induces institutional actors to place a high value on clearing dockets, which leads to discouraging full-dress adjudication in favor of bargaining and negotiation, settlements, routine processing, and diversion that are more likely to favor repeat players. In addition, it encourages judges, administrators, and legislators to adopt restrictive rules to discourage litigation.

The “Haves” article does not assert a class or power elite analysis (although it is often wrongly claimed that it does). Galanter does not say that members of the dominant class, or organizations with great wealth, always win in litigation. Rather, he focuses on the structural advantages of repeat players, and he concedes that one shotters without power may be able to gain many of the advantages of a repeat player if they can engage the support of organizations or lawyers who regularly handle similar cases. The contingent fee, punitive damages, and benefits of specialization and participating in networks of those who regularly handle cases of a particular type may all help one shotters acquire some of the advantages possessed by repeat players. Indeed, much that is called tort reform involves challenging the structural devices that allow individuals to hire lawyers who can supply the advantages of repeat playership.

From a law and society perspective, such observations raise questions about the distribution of legal and political power in a democratic society, the symbolic uses of law, and the impact of the structure of the litigation system on outcomes and the relationships of the legal with other social systems.

Galanter’s essay, as all work, reflects its times. “Haves” was written in an era of liberal reform. Courts and legislatures were expanding individual rights. Legislatures funded legal services programs. Civil rights and consumer protection statutes provided that some of those who won cases could recover attorneys’ fees. Law was thought to be a prime catalyst for social change. Thus, Galanter ends on an optimistic note by considering how legal reform could expand the advantages of repeat playing to individuals so that they can effectively vindicate their rights.

Times change. The goals became the decrease of governmental power and entitlements, increased personal responsibility, and a reduction in the regulation of wealth and property in favor of greater reliance on the market. Individual rights liberalism has been strongly challenged by civic republicanism and similar communitarian perspectives. There may have been an overemphasis on a “rights strategy” and the efficacy of rights in securing social change. Yet whatever its limits, a structure of rights is often a necessary component of change. In the United States, these rights, and judicial protection for them, are being steadily eroded by a spate of Supreme Court decisions.

On the other hand, the worldwide growth of democracy and the spread of constitutionalism and multinational judicial structures outside the United States seem to be leading to a greater emphasis on rights and their protection by courts.

2

The Rule of Law and the Litigation Process
The Paradox of Losing by Winning

CATHERINE ALBISTON

Litigation is a process rather than a choice between two alternatives. Courts intervene in this process not only by encouraging settlement but also through intermediate decisions that may not entirely resolve a case. Indeed, although most cases settle, many do so after some sort of court intervention. These points of intervention, like strategic settlement, also present opportunities to shape the developing law. The ways in which the litigation process and party-driven biases together might affect the evolving law have not been explored, however.

It should also be recognized that not all “law” is created in the same manner. Although Galanter’s (1974) argument may make sense for judicially created common-law rules, his proposition deserves a closer look in the context of social reform legislation designed to address a social problem or protect the interests of the disadvantaged. Arguably, these remedial statutes strengthen the position of one-shot players (OS) relative to repeat players by transferring the rule advantage to the one-shot player. Thus, through one transaction, legislation may overcome the incremental legal advantages accumulated through strategic settlement behavior. Accordingly, at least in the early actions brought under a social reform statute, one might expect one-shot players to hold their own against repeat players.

On the other hand, legislation granting a new substantive right represents both the end of a long political struggle and the beginning of the battle for meaning in the courts. The ultimate scope and power of these statutes depend not only on their language, but also on opinions generated by the common-law process of the judicial determination of rights in individual disputes. This interpretation process presents another opportunity for repeat players to “play for the rules” and influence the ultimate meaning of a statute.

In this article, I explore the litigation process in the context of employment litigation regarding the rights conferred by a federal employment statute, the Family and Medical Leave Act of 1993 (FMLA). I examine the pattern of adjudicated outcomes in published federal court opinions in the five years following the statute’s enactment.

I look at the entire process of litigation, rather than focusing on outcomes in only one rule-making opportunity, such as appellate opinions. In addition, I examine the early published opinions regarding a single individual right, nationally recognized, at both the trial and appellate level, rather than comparing appellate opinions regarding disputes in diverse jurisdictions under many different laws. By doing so, I examine Galanter’s claims where one would most expect the law to protect the one-shot player: cases arising under a remedial statute granting individual rights.

Abridged from Law & Society Review 33, no. 4 (1999): 869–910.

I conclude that the perceived failure of remedia...