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Delivering Legality: Some Proposals for the Direction of Research

Published online by Cambridge University Press:  01 July 2024

Marc Galanter
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Abstract

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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.

Type
Research Article
Information
Law & Society Review , Volume 11 , Issue 2: Delivery of Legal Services , Fall 1976 , pp. 225 - 246
Copyright
Copyright © 1977 by the Law and Society Association.

Footnotes

This paper draws heavily on the analysis set forth in my article “Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Legal Change,” (1974). I would like to thank Richard Abel, Lester Brickman, and Richard Lempert for helpful comments and Frank Palen for assistance in preparing this paper.

References

1. These already exist, of course, in such matters as marriage, social security, etc. (Cf. the popular literature—e.g., Dacey (1965)—attempting to promote do-it-yourself in other areas). Halbach (1976:147) urges the development of standardized or partially standardized arrangements which private individuals can, if they wish, by a simple act of selection, utilize for transactions that now must be either individually tailored or go virtually unplanned. That is, the terms of potentially complicated, planned transactions, or major portions thereof, can be “prepackaged” in a series of statutory or other options rather than necessarily requiring the planning and drafting of elaborate, wholly individualized documents.

2. Proposals for deregulation abound, from dismantling administrative regulation of airlines to decriminalization of marijuana to elimination of estate administration. Cf. Halbach (1976:152).

3. Virtually the entire literature of the sociology of law might be cited on this point, but let me just mention a couple of outstanding case studies. See, e.g., Macaulay's (1966) study of the Dealer's Day in Court Act; Mayhew's (1968) account of an antidiscrimination commission; Aubert's (1966) study of the Norwegian Housemaid Law; Randall's (1968) study of movie censorship, and the voluminous literature on prohibition, e.g., Sinclair (1964). Cf. Edelman (1967). Massell's (1968, 1974) study of Soviet attempts to reshape family life in Central Asia suggests that the success is not assured by willingness to resort to high levels of coercion. A useful summary of the extensive literature on the impact of United States Supreme Court decisions may be found in Wasby (1970). Some suggestive generalizations about the conditions conducive to the penetration of new law may be found in Grossman (1970:545) and Levine (1970:599 ff.).

4. I do not mention arbitration separately since it is an omnibus category that might refer to developments under almost all the headings discussed below.

5. For a critical analysis of the extensive small claims literature, see Yngvesson and Hennessey (1975).

6. Thus Nader and Singer (1976:318) call for “alternative forums to courts for resolving disputes between people whose relationships are ongoing, and thus subject to mediated solutions, reserving the courts for the one-shot, win-lose type of dispute. …” See also Danzig and Lowy(1975).

7. For a comparative survey of the emergence of such “popular tribunals,” see Tiruchelvam (1973).

8. See, e.g., the thorough analysis of the now-defunct Carpet and Rug Industry Consumer Action Panel (CRICAP) by McDonald (1974).

9. Pub. L. No. 93-637, 88 Stat. 2183 (Jan. 3, 1975).

10. Information on media ombudsmen (e.g., newspaper action lines or television action reporters) is rather slim. See Levine (1975); Singer (1973); Cerra (1976). For an interesting cross-cultural perspective, cf. Ramundo (1965).

11. This is an application of Donald Black's (1973:128) useful distinction between reactive mobilization of the legal process (i.e., on the basis of citizen complaint) and proactive mobilization (i.e., in which officials proceed on their own initiative).

12. Cf. Homburger (1970). For a description of more “active” courts, see Kaplan et al. (1958:1443). Of course, even among common law courts, passivity is relative and variable. Courts vary in the extent to which they exercise initiative for the purpose of actively protecting some class of vulnerable parties or developing a branch of the law.

13. Nonet (1969:79) describes the California Industrial Accident Commission:

When the IAC in its early days assumed the responsibility of notifying the injured worker of his rights, of filing his application for him, of guiding him in all procedural steps, when its medical bureau checked the accuracy of his medical record and its referees conducted his case at the hearing, the injured employee was able to obtain his benefits at almost no cost and with minimal demands on Ins intelligence and capacities.

In the American setting, at least, such institutional activism seems unstable; over time institutions tend to approximate the more passive court model. See Nonet (1969: Chs. 6 and 7) and generally Bernstein (1955: Ch. 7) on the “judicialization” of administrative agencies.

14. Cf. Rosenthal's (1974a:96) observation that “a quick settlement is often in the lawyer's financial interest.” On the bias against elaborate preparation of the claims of one-shot plaintiffs see Ross (1970: 82); Carlin and Howard (1965:385).

15. Legal services are one vehicle through which differences in party capability have effect, but we cannot reduce those differences to differences in the supply of legal services. First, the capacity to use law effectively is not something supplied exclusively by professionals and entirely separable from the parties. Parties themselves can have different levels of capacity to utilize the legal services. For example, Douglas Rosenthal (1974a) found that superior results were obtained by “active” personal injury plaintiffs. A study of the California Small Claims Courts, in which lawyers were not permitted to appear, found that businesses that were frequent users “formed a class of professional plaintiffs who have significant advantages over the individual.” (Moulton, 1969: 1662) Further, there seems to be comparative evidence that major distinctions in party competence can exist quite apart from disparities in legal services. The reports of Kidder (1973, 1974) and Morrison (1974) on litigation in India suggest a distinction between the “experienced” or “chronic” litigant and the naive and casual one which seems to be quite independent of the organization of legal services.

16. Auerbach (1976) depicts the extent to which the elite bar, serving the organized sector, has dominated the profession's policies about the organization and delivery of legal services.

17. On stratification in the American legal profession, see Carlin (1962,1966); Ladinsky (1963); Lortie (1959); Auerbach (1976). But cf. Handler (1967).

18. Cf. Cramton (1975:1342):

If the client's interests are best served by negotiation and settlement, that course should be followed. But if litigation is necessary, it should be pursued to the hilt. An appeal from an adverse decision below should be taken when the interests of the client would be served. And participation in administrative or legislative proceedings may often be appropriate or necessary in order to advance or protect the client's interests.

19. For example, the legal aid attorney who prevailed in William v. Walker-Thomas Furniture Co., 350 F.2d 445 (D.C. Cir. 1965), reported that the case required 210 man hours of legal work. See Skilton and Helstad (1967:1480, n.38). At a modest hourly fee of $25, protection of Mrs. William's $1800 worth of purchases would have cost her $5250 in lawyers' fees alone. An even more daunting example is provided by the experience of A. Ernest Fitzgerald, the Air Force cost analyst who disclosed the multibillion dollar cost overrun in the C-5A transport. In the course of winning his six-year fight for reinstatement (with back pay) in his $31,000 per year job, he accumulated lawyers fees of more than $400,000:

[A] small army of Government lawyers was set to work against Mr. Fitzgerald—lawyers representing the Air Force, the Department of Defense, the Justice Department, the United States Attorney's Office and the Civil Service Commission. These lawyers delayed hearings, refusing to turn over documents, appealed every concession made, filed motions that required scores of time-consuming proceedings taking up time—and all the while Mr. Fitzgerald's attorneys were costing him $125 an hour.

[N.Y. Times, Jan. 2, 1976:8.]

It is reported (Green, 1975) that Mrs. Aristotle Onassis ran up lawyers' bills of $400,000 in successfully fending off the intrusive attentions of photographer Ron Gallella. (Upon her husband's refusal to pay, the law firm brought suit and eventually settled for $225,000.)

20. The following discussion concentrates on the aggregation of claims. Organization also permits the sharing of costs and the pooling of risks. In particular, it helps to reduce the risk of retaliatory action as is suggested by the example of labor unions.

21. For a perceptive discussion of the operating style and conditions of effectiveness of this kind of organization, see Rabin (1976:209 ff.).

22. Prior to 1914, individual authors, composers and publishers realized little in the way of royalties for the public performance of their compositions. It was impossible for individuals to maintain constant surveillance throughout the forty-eight states and to collect royalties for each performance of their musical compositions. It was also difficult for them to prosecute each establishment which performed their music without the payment of royalties. The problem of collecting royalties and protecting copyrights was met by joint action of the authors, composers and publishers. Where individual action could be sporadic and ineffectual, combined resources and vigilance and concerted threats of prosecution for copyright infringement enabled the copyright owners to force the many users to pay for the public performance privilege. [Complaint in United States v. ASCAP, Civil No. 42-245 (S.D.N.Y., filed June 23, 1947), quoted in Finklestein, 1954:284.]

Cf. the bringing of a private antitrust action, seeking triple damages and injunctive relief, by a Retail Druggists Association, “a nonprofit corporation, an assignee of more than 60 commercial pharmacies.” Abbott Laboratories v. Portland Retail Druggists Association, 96 S. Ct. 1305 (1976).

23. The recent unsuccessful attempt to form a publicly held, for profit corporation to finance public interest litigation is instructive. Between 1971 and 1976, attempts to establish Public Equity Corporation received considerable attention in the popular and financial press. See, e.g., Brooks (1971); Mechling (1975); Metz (1974); Stabler (1974); Hougan (1975). After several years of support by foundation grants, the firm's promoters were able to overcome resistance from the American Bar Association (which was suspicious of possible maintenance, champerty, and barratry), the S.E.C. (which was concerned with its high risk stock offering), and Ralph Nader (who was for a time disturbed by Public Equity's profit-making aspects). The venture foundered in February 1976 when it failed to attract a minimum investment of $720,000. See Cunniff (1976).

24. A governmental and post-hoc variation of this notion was proposed by Rosenberg (1971:813-14) to deal with high-volume, low-value disputes. He proposes “compensation without litigation”:

For example, why not create a Department of Economic Justice to dispense quickly remedies in cash or in kind to complaining customers who have been unable to get satisfaction from the merchant or manufacturer responsible for the defective product? … On a pilot project basis, I propose … to underwrite experimentally a system of delivering justice … [the] main features [of which] would be simple. When the customer presents his grievance, his statement will be taken down, he will sign his name, and on the spot will be given the relief due him, up to a limit of say, 200 dollars or so, in cash or in kind.

From the public viewpoint, the system could have advantages not only of economy but also of effectiveness. Through a national network of offices, the Department of Economic Justice would learn quickly if a manufacturer has been making defective television tubes or components on a grant scale; or thousands of unsafe brake linings; or too many permeable raincoats. Then it would be able to take the legal action appropriate to the situation—including wholesale (and hence, economically worthwhile) suits to recover amounts it had already paid out administratively, along with costs, interest, and other economic sanctions or cease and desist orders; or sterner sanctions if appropriate. This system would offer an efficient way of coordinating complaints and consolidating claims that have a common basis. It would also permit quality control of a more effective kind than isolated court suits do.

25. Perhaps the greatest tribute to the potency of organizations for the effective use of the legal process is to be found in Congress's prohibition of the Legal Services Corporation from spending any funds to organize, to assist to organize, or to encourage to organize, or to plan for the creation or formation of, or the structuring of, any organization, association, coalition, alliance, federation, confederation, or any similar entity, except for the provision of legal assistance to eligible clients. …[Legal Services Corp. Act, 42 U.S.C. 2296f(b)(6) (1974)]

26. See, e.g., Mayhew's discussion of the greater strategic thrust of group-sponsored complaints in the discrimination area (1968: 168-73).

27. Of course, organization, once achieved, opens up a wide range of options beyond the use of legal fora—boycotts, demonstrations, lobbying, and many other forms of concerted action.

28. Olson (1965:127) argues that capacity for coordinated action to further common interests decreases with the size of the group: “relatively small groups will frequently be able voluntarily to organize and act in support of their common interests, and some large groups normally will not be able to do so.” Where smaller groups can act in their common interest, larger ones are likely to be capable of so acting only when they can obtain some coercive power over members or are supplied with some additional selective incentives to induce the contribution of the needed inputs of organizational activity. On the reliance of organizations on these selective incentives, see Salisbury (1969) and Clark and Wilson (1961). Such selective incentives may be present in the form of services provided by a group already organized for some other purpose. Thus many interests may gain the benefits of organization only to the extent that those sharing them overlap with those of a more organizable interest. (Consider, for instance, the prominence of unions as spokesmen for consumer interests.)

29. See sources in note 10 above.

30. For example, the Fraud and Complaint Bureau described by Steele (1975), or the antidiscrimination commission described by May hew (1968).

31. Consider, e.g., the patterns of air pollution enforcement described by Goldstein and Ford (1971) or the Department of Justice position that the penal provisions of the Refuse Act should be brought to bear only on infrequent or accidental polluters, while chronic ones should be handled by more conciliatory and protracted administrative procedures [1(12) Env. Rep. Cur. Dev. at 288 (1970)]. Compare the reaction of Arizona's Attorney General to the litigation initiated by the overzealous chief of his Consumer Protection Division, who had recently started an investigation of hospital pricing policies:

I found out much to my shock and chagrin that anybody who is anybody serves on a hospital board of directors and their reaction to our hospital inquiry was one of defense and protection. My policy concerning lawsuits … is that we don't sue anybody except in the kind of emergency situation that would involve [a business] leaving town or sequestering money or records.… I can't conceive any reason why hospitals in this state are going to make me sue them. [N.Y. Times, April 22, 1973:39]

32. The literature on public interest law is vast. For some useful introduction, see, Yale Law Journal (1970); Lazarus (1974); Rabin (1976). Cf. Scheingold (1974). In spite of the considerable attention paid them, the public interest bar in 1975 consisted of 500-600 lawyers—including those retained by organizations like the Legal Defense Fund of the N.A.A.C.P.—out of a total of more than four hundred thousand. A survey conducted by the Council for Public Interest Law identified 90 tax-exempt private firms and 70 fee-supported firms that spend at least 10 percent of their time on public interest work (N.Y. Times, Feb. 3, 1976:47). Cf. Handler (1976:99). Of course, the “public interest” format can be used to augment the representation of “haves” as well as of unorganized “have-nots.” For an account of one such firm, see Weinstein (1975:39).

33. Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974).

34. Among the costs, of course, is dependence on lawyers. See Wexler (1970); Brill (1973); Rosenthal (1974a).

35. Suggestive leads are available in the anthropological literature, e.g., Nader and Metzger (1963); Hunt and Hunt (1968). In the American setting a pioneering study by Austin Sarat (1976) shows that choice between settlement, arbitration, and adjudication in small claims court is affected by party experience, past relations, and the expectation of future relations.

36. Cf. Yngvesson and Hennessey's (1975) observation on the nonsimplicity of small claims.

37. For a review of these findings, see Galanter (1975).

38. For example, efforts to secure broadened participation in the administrative process have succeeded mainly in stimulating additional action by groups that were already active. See Kloman (1975:67).

39. Cf. the campaign of two organizations, The Adoptees Liberty Movement Association and Orphan Voyage, to secure laws enabling adoptive children to find their natural parents (Dusky, 1975).

40. The N.Y. Times reports a meeting in Washington of “more than three hundred parents from groups throughout the country… in an attempt to persuade Government officials to investigate the Unification Church and other groups” (February 19, 1976:31).