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Mobilizing Private Law: An Introductory Essay

Published online by Cambridge University Press:  01 July 2024

Richard O. Lempert
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The mobilization of law may be thought of as the process by which legal norms are invoked to regulate behavior. In the area of private law, mobilization has two distinct aspects. The first is the process by which existing disputes become engaged in the legal system. In theory this means that disputes are transferred from an arena where their resolution and the enforcement of resolutions depends on the relative power of the parties as enhanced or constrained by nongovernmental normative systems to an arena where disputes are resolved by reference to governmental (legal) norms and resolutions are enforced by the power of the state. In practice the separation between the governmental and nongovernmental spheres is rarely complete. Legal norms may influence the way in which parties resolve their disputes even when there is no threat that the matter will be taken to law, and both the parties' resources (Galanter, 1974, 1976) and nongovernmental norms“ clearly affect the way disputes are resolved in the legal system.

Type
Research Article
Information
Law & Society Review , Volume 11 , Issue 2: Delivery of Legal Services , Fall 1976 , pp. 173 - 189
Copyright
Copyright © 1977 by the Law and Society Association.

Footnotes

I would like to thank Professors Thomas Green and Richard Abel for their helpful comments on earlier versions of this paper.

References

1. I think the reader will understand the way the term “legal norms” is used here if legal norms are defined simply as “rules embodied in laws.” For those who wish a more technical, less circular definition, I would define legal norms as: rules that explicitly or implicitly authorize or direct the government to take or refrain from taking action that will render a mode of behavior more or less costly to the actors. Legal norms are likely to be effective only when there is some probability that the government will act as authorized or required. Thus, the efficacy of legal norms depends in part on the mechanisms that exist for bringing behavior sufficient to occasion government action to the attention of the government.

2. Professor Donald Black, in an interesting and important article (1973), has defined the concept of “mobilization of law” as “the process by which a legal system acquires its case.” Since this article, more than any other, has attracted the attention of legal sociologists to this area of theoretical concern, it is with some reluctance that I have advanced a definition of the concept different from Black's. However, I am convinced that Black's definition is unsatisfactory. Not only does it require that the term “case” be very broadly conceived, but it also suffers from Black's definition of law as “governmental social control.” According to Black's use of the term, it would appear that the FBI was mobilizing law when it attempted to foment trouble between various black nationalist groups or when it engaged in judicially unauthorized breaking and entering. I prefer a concept of legal mobilization which excludes such activity. There are real and important differences between governmental power that is exercised in accordance with legal norms and governmental power exercised in opposition to legal norms or without reference to them. E.P. Thompson makes this point nicely in the conclusion to his study Whigs and Hunters (1975: 258-269). Also the term “cases” in Black's definition of mobilization, while broadly conceived (it includes, for example, offenses reported to the police), is in certain respects too narrow. For example, Black states that a contract becomes a case only when a suit is filed. I would argue that the law may be mobilized at an earlier stage than this. If the parties, through their attorneys, settle a contract dispute on the basis of the attorneys' judgments of what a court would do if faced with the case and with the threat of suit constantly in the background, law, in my opinion, has been mobilized.

3. Parties may, for example, adopt the procedural norms of the legal system to set up a system designed specifically to minimize or eliminate the prospect that a dispute will be taken to law. They may also engage in such borrowing even where it is clear that the actions of one party, no matter how arbitrary, would not give the other party a legal cause of action (see, e.g., Evan, 1962; Selznick, 1969).

4. The clearest example of this occurs in instances of jury nullification. This can happen and, indeed, is probably more frequent in private law cases than in criminal law cases. An example of legal norms commonly “nullified” are the tort rules requiring a defendant's verdict when there has been any contributory negligence and forbidding the “quotient verdict” (see Kalven, 1958).

5. Note that the out-of-court settlement of some disputes turns on the invocation of lawyers more than it does on the invocation of law. It is the ability of the lawyer to force certain expenses on the other party, regardless of legal norms, which gives a claim what is appropriately called its “nuisance value.” But even this nuisance value depends on the existence of a legal system and the lawyer's ability to start it in motion. So it is the potential invocation of the law which gives the claim its value even though it is clear that if the law were invoked the moving party would not get the remedy he purports to seek. In theory, professional ethics will keep an attorney from mobilizing or threatening to mobilize legal processes in situations where legal norms deny the possibility of a colorable claim.

6. Obviously the two are closely related. Absent a real threat that law might be mobilized, there would be little incentive to seek this kind of advice.

7. One of the “papers” is actually the edited transcription of a speech given by Ralph Nader.

8. Marks cites his Shreveport study (Marks et al., 1974) for the interesting proposition that the sense of entitlement to legal services will in many instances be as important to the client as the actual fact of representation. The study suggests that the availability of legal services made individuals more willing to assert themselves in situations where legal services were potentially useful. This increased assertiveness led to more satisfactory outcomes without any need for legal assistance. Further research is needed to determine if this result holds generally and, if so, to specify its implications.

9. Thus it may be a crime not to report a felony or to hide the perpetrator of a crime, and it is technically a crime to demand compensation in return for not mobilizing public authorities to deal with a public law violation or physically to punish a public law violation in a private capacity. Of course, subgroup norms may proscribe the mobilization of public law in certain circumstances, and public authorities often cooperate in substituting private compensation for public prosecution (e.g., dropping bad check charges if the check is made good).

10. The law is a valuable resource in that the state pays much of the cost of delivering those benefits which Marc Galanter in his paper subsumes under the rubric “legality.” Particularly valuable is the coercive power of the state which is put at the disposal of the successful private litigant.

11. See the discussion of the work by Mayhew, and Mayhew and Reiss, in Marks (1976: 192, 196).

12. Black's empirical work relating directly to legal mobilization has been with the police (1970, 1971). When the focus is on the police it makes more sense to divide all cases into two types, government or citizen initiated, than it does when the focus is on the mobilization of private law.

13. See Ladinsky's paper in this volume (1976:207), and the studies he cites. Note that all the cited studies relate to the use of lawyers by individuals. We know almost nothing about how organizations come to define problems as legal and to acquire legal services. We do know that the definition of a problem as legal is not necessarily followed by a decision to acquire legal services. The businessmen studied by Macaulay (1963) knew their contracts had legal significance but in the typical case declined to use the law to resolve their disputes.

14. The police and prosecutor play a similar role when private complainants seek to invoke the criminal law.

15. One of the bases for contention between those who prefer to deliver legal services to the poor through staffed law offices and those who prefer Judicare programs is the asserted difference in the willingness of attow-neys in the two systems to take an expansive view of what the law can do to alleviate client problems.

16. There are, of course, other dimensions to cost than the purely financial. Prospects of delay may be a cost which will influence a decision to take a dispute to law. Psychological costs may also be very important. Thus the location and decor of law offices, as well as the perceived attitudes of those within them, may influence the mix of clients who seek legal service and the problems the clients bring.

17. According to Galanter these benefits include: protection, security, remedies for a variety of grievances and claims, securing accountability of officials, participation in decision making, feelings of justice, fairness, employment of facilitative rules to accomplish specific purposes, and the provision of frameworks for reliance.

18. See the data from studies by Mayhew and Steele reported by Galanter in the final portion of his paper.

19. The instrumental motives behind legal mobilization account for decisions to invoke only part of the available law. Thus one calls the police to quell a disturbance, but once the disturbance is quelled one tries to avoid a decision to press charges. Summoning police is an inexpensive form of legal mobilization that achieves the immediate goal desired. Pressing charges takes time, may cost money if trial occurs during working hours, and may be counterproductive if it disrupts a valued relationship or leads the defendants or their friends to create new disturbances.

20. Substantive legal change is one way to reduce the need to mobilize law. Galanter uses the example of a law requiring the early vesting of pensions. Where pensions are vested it will be less costly for an employee to walk away from a dispute with his employer by quitting, or to accept an employer's decision to fire him. If an employee had substantial unvested pension rights, they would provide an incentive to litigate disputes with the employer that might result in the termination of those rights.

21. As has been suggested, these institutions may deliver attorneys' services, allow attorneys to operate more cheaply, or eliminate the need for attorneys. Small claims courts are a common example of this third type.

22. Proactive agencies may also be created with the responsibility of searching out law violations. Private law remedies may persist along with public law activity. Thus the FDA attempts to prevent dangerous drugs from reaching the market but, if it fails, individuals injured may have a cause of action for their damages. It should be pointed out that legal disputes involve two or more parties. Thus a change which makes it easier for one party to mobilize the law may increase the need for other parties to use the law as a defense. This may increase the total demand for legal services and make the acquisition of legal services more costly for all but the favored individuals.

23. First the expectations of the individual will be important for they will determine whether a lawyer's services will be sought. Then it will usually be the lawyer's expectations that are important, for they will determine the choice of what law, if any, is to be invoked.

24. Several of these advantages appear much more likely to accrue to onetime plaintiffs than to one-time defendants. I would suggest that one-time defendants facing repeat players are considerably more disadvantaged than one-time plaintiffs. Plaintiffs, after all, know what they are up against and would not bring suit without some promise of success.

25. Rosenthal (1974) notes that in personal injury cases attorneys usually profit more from settling cases early than from litigating them, although clients usually profit more in the latter situation.

26. Conflict is inherent if the organization is concerned with promoting the general interests of a class of clients as well as the specific interests of individuals

27. Social scientists are beginning to develop a body of research clarifying impacts attributable to attempts to mobilize law. Unfortunately, most of this research is more concerned with demonstrating that apparently successful attempts to mobilize the law have only limited efficacy—the so-called “gap” problem of legal impact research—than they are with specifying the factors that limit the effectiveness of legal mobilization. It is the latter that is the interesting theoretical question (see Abel, 1973). Gap researchers have demonstrated that the receipt of an official normative statement sanctioning one's preferred position and, in theory, entitling one to mobilize the sanctioning apparatus of the state does not mean that the goal for which the law was mobilized will be achieved. A reason for this is that even after judgment, activation of the state's enforcement apparatus, another stage in the mobilization of law, remains problematic. Those subject to sanctions may be unable to respond to the sanctions decreed—here we use the term “judgment proof”—or they may be able to evade the application of sanctions. Moreover, those charged with enforcing sanctions are subject to the same institutional deficiencies that afflict all bureaucracies. These limits apply, of course, after litigation is complete. Nader (and Galanter) are more concerned with the problems of mobilization before and during the course of litigation.

28. The converse of this is also true. The need to proceed legally to achieve certain ends often places substantial constraints on what the socially powerful can or will do. For a very nice statement of this point see Thompson (1975).