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The Construction and Deconstruction of a Disputes-Focused Approach: An Afterword

Published online by Cambridge University Press:  02 July 2024

David M. Trubek
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Abstract

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With each step forward, with each problem that we solve, we not only discover new and unsolved problems, but we also discover that where we believed we were standing on firm and safe ground, all things are, in truth, insecure and in a state of flux.

Karl Popper

(Popper, 1976: 87)

Type
Part Two-The Civil Litigation Research Project: A Dispute-Focused Approach
Information
Law & Society Review , Volume 15 , Issue 3-4: Special Issue on Dispute Processing and Civil Litigation , 1981 , pp. 727 - 747
Copyright
Copyright © 1981 The Law and Society Association.

Footnotes

*

In the process of writing this paper, I benefited from discussions with the staff of the Civil Litigation Research Project, and my colleague, Mark Tushnet. An opportunity to discuss these matters at the Third Amsterdam Seminar on Legal Sociology, organized by Erhard Blankenberg, futher clarified my thinking. Richard Abel, Kristin Bumiller, William Felstiner, Heleen Ietswaart, and Austin Sarat made valuable suggestions which I have tried to incorporate. The ideas expressed here reflect my personal views and should not be attributed to the Civil Litigation Research Project or any of the other participants in it.

References

1 The CLRP surveys included questions designed to ascertain that a perceived problem had become a dispute and that the dispute was involved in any litigation that occurred. See Grossman et al. (1981b).

2 Individual cases might be excluded from the CLRP sample for one of three reasons. Some cases were excluded because of over-sampling: in the New Mexico survey, for example, some student loan cases were excluded for this reason. Other cases were excluded on procedural grounds: cases that were remanded, ancillary, or transferred out of the sampled court. In addition, in the federal court sample, cases were excluded when terminated for lack of jurisdiction. A third group of cases were excluded because their subject matter was unlikely to involve a dispute—either in theory or in practice. This group included matters such as probate, name changes, bankruptcy, garnishment, and prisoner petitions. See also Grossman et al. (1981a).

3 The CLRP Lawyer Survey revealed that of those lawyers (N=1214) involved in pretrial settlements, 73 percent (N=887) indicated no judicial role, while 27 percent (N=327) indicated that the judge or hearing officer played some role in the negotiations.

4 In the CLRP sample, only six percent of the cases went to trial. In 22 percent there were some pretrial motions. In most cases (N=78 percent) lawyers surveyed reported some settlement negotiations.

5 Of course, there is always an additional risk that the presence of the researcher will alter decisions the parties make. It is not hard to imagine situations in which inquiries by the researcher about dispute decisions could lead parties to reconsider and change their decisions. (Imagine if you ask disputants why they didn't use a lawyer, and this cues a decision to do so!) This problem of reactivity is always present, and must be guarded against. It is less serious in retrospective studies like those CLRP has conducted, in which the events studied are all in the past, and the disputes theoretically terminated, but it could become acute if we are able to initiate the kind of prospective “panel” studies suggested by several authors (Kritzer, Felstiner et al., Coates-Penrod).

6 This preliminary and admittedly inadequate sketch of conflict resolution and repression in the landlord-tenant area represents an effort to integrate insights from critical legal theory and the sociology of law. It draws on ideas developed by Arnaud (1973), Balbus (1973), Gabel (1980), Hay (1975), Horwitz (1977), Kennedy (1976; 1979; 1980), Klare (1978), Macaulay (1979), Simon (1978), and Stone (1981).

7 The most comprehensive account of the way the law and the profession constrain dispute possibilities is contained in Macaulay's (1979) study of lawyers and consumer protection law. Stone's (1981) study of the relationship between labor law doctrine and dispute processing is similarly suggestive.

8 What Kidder seems to find objectionable in the pressure cooker model, therefore, is that each individual is treated as an isolated atom which may or may not collide with other atoms and create a dispute. When these collisions occur with sufficient frequency, the pressure is relieved by social processes of dispute resolution. Problems exist only when the valve is too tight to relieve the pressure; then we need more courts, more efficient systems for dispute resolution, etc. The disputes focus, say the critics, looks at the number of collisions and compares them with the capacity of the valve. But it fails to see that the valve itself determines the number and nature of the collisions that may occur.

9 For an effort to relate developments in the processing of individual disputes to broader social and political phenomena, see Ietswaart (1981).

10 Of course, there is another critique of the “gestalt” emerging from disputes studies that is symmetrical with Kidder's yet leads to radically different conclusions. Look at David Engel's views on the overall issue of disputes and conflict. Engel criticizes disputes research for focusing, as the anthropologists have, on the “trouble case.” These, he says, are the situations in which social relationships have broken down. By looking at these to the exclusion of working social relations, Engel says, the disputes focus highlights what is unusual and aberrant, not what is typical and normal. By doing this, we tend to picture society as isolated atoms in collision, rather than seeing it as a whole, integrated by working normative systems which maintain harmony. This approach, he suggests, makes society seem more conflicted than it is, and grossly overstates the role of formal law and courts in maintaining order.

For references cited in this article, see p. 883.