1 “Sander County” is, of course, a pseudonym. The Sander County Court is a trial court of general jurisdiction handling not just civil cases but criminal cases as well. This study, however, focused on the civil case load.Google Scholar

2 E.g., Suzann R. Thomas-Buckle & Leonard G. Buckle, Doing unto Others: Disputes and Dispute Processing in an Urban American Neighborhood, in Roman Tomasic & Malcolm M. Feeley, eds., Neighborhood Justice: An Assessment of an Emerging Idea 78 (New York: Longman, 1982); Jack Ladinsky, Stewart Macaulay, & Jill Anderson, The Milwaukee Dispute Mapping Project: A Preliminary Report, Disputes Processing Research Program Working Paper (University of Wisconsin Law School, 1979); Sally Engle Merry, Going to Court: Strategies of Dispute Management in an American Urban Neighborhood, 13 Law & Soc'y Rev. 891 (1979).Google Scholar

3 . Merry, , supra note 2, does attempt to relate litigation to disputing strategies at the neighborhood level. Other relationships between courts and conflict in a community are explored in Barbara Yngvesson, Court and Community in Two New England Towns (Paper delivered at the annual meeting of the Law and Society Association, Denver, June 3, 1983), and in Carol, J. Greenhouse, Nature Is to Culture as Praying Is to Suing: Legal Pluralism in an American Suburb, 20 J. Legal Pluralism 17 (1982).Google Scholar

4 . See, e.g., Joel, B. Grossman & Sarat, Austin, Litigation in the Federal Courts: A Comparative Perspective, 9 Law & Soc'y Rev. 321 (1975); Lawrence, M. Friedman & Robert, V. Percival, A Tale of Two Courts: Litigation in Alameda and San Benito Counties, 10 Law & Soc'y Rev. 267 (1976); Wayne McIntosh, 150 Years of Litigation and Dispute Settlement: A Court Tale, 15 Law & Soc'y Rev. 823 (19801981).Google Scholar

5 From the civil cases filed over this two-year period, 20% were randomly selected from each of the 12 administrative categories of civil cases for 1975 and 1976. The administrative categories were: (1) law (claim over $15,000), (2) law (claim $15,000 or less), (3) chancery, (4) miscellaneous remedies, (5) eminent domain, (6) estates, (7) tax, (8) municipal corporations, (9) mental health, (10) divorce, (11) family, (12) small claims.Google Scholar

6 . Population is sometimes described as a surrogate for the number of potentially litigable disputes in society, which can be compared to the number of disputes actually litigated in order to calculate a “litigation rate.” There are, of course, serious conceptual problems associated with this approach. It is misleading to reify societal conflict in nonjudicial contexts as if it could be split into tangible, quantifiable units (disputes) that are treated as equivalent to litigated cases for purposes of statistical analysis. Further, even if the comparability of unlitigated disputes and litigated cases were not a problem, there is some question whether population is an appropriate surrogate to be used. See David, M. Engel, Legal Pluralism in an American Community: Perspectives on a Civil Trial Court, 1980 A.B.F. Res. J. 425, 431–37; Richard Lempert, More Tales of Two Courts: Exploring Changes in the “Dispute Settlement Function” of Trial Courts, 13 Law & Soc'y Rev. 91, 96 (1978).Google Scholar

7 . David, M. Engel & Eric, H. Steele, Civil Cases and Society: Process and Order in the Civil Justice System, 1979 A.B.F. Res. J. 295, 312–14.Google Scholar

8 . See Galanter, Marc, Why the “Haves” Come Out Ahead: Speculations on the Limits of Legal Change, 9 Law & Soc'y Rev. 95 (1974).Google Scholar

9 See Engel, supra note 6, at 434–35.Google Scholar

10 Friedman & Percival, supra note 4.Google Scholar

11 . Id. at 277 n.26.Google Scholar

12 These figures do not include sealed family cases, for which no information was available. Since the only cases that were sealed involved either adoptions or petitions for marriage license orders, however, it is plausible to assume that the parties in such cases (which constituted 4.0% of the total civil docket) were individuals rather than businesses or governmental parties. Not included in the figures cited in the text are cases involving no defendants (10.7% of the civil cases in which parties were known), cases brought by the administrator or executor of an estate (0.5% of civil cases in which parties were known), and a single case in which a professional union was defendant (0.3% of civil cases in which parties were known).Google Scholar

13 The significance levels given in figure 3 and in other figures are based on the chi-square test of independence. Since most of the data are at the nominal level of measurement, I have included the value of Cramer's V, which is a measure of association based on the chi-square statistic and can vary from 0 to 1 in tables of all dimensions. In some figures the expected cell frequency, under the assumption that the rows and columns are independent of each other, is low for several cells. For these figures the significance level given is probably overly conservative; that is, it overstates the probability that the observed association could be produced by chance.Google Scholar

14 See Infra fig. 3.Google Scholar

15 An important variation on this pattern involved cases brought by collection agencies, who often were strangers to the debtor. Nonetheless, even in cases of this kind, the litigation grew out of a hitch in a prior transaction or relationship, and the plaintiff who was a “stranger” stood in the shoes of a creditor who was already known to the defendant.Google Scholar

16 See infra discussion at 873.Google Scholar

17 For a detailed analysis of personal injury cases and community ideology in Sander County, see David M. Engel, The Oven Bird's Song: Insiders, Outsiders, and Personal Injuries in an American Community, 18 Law & Soc'y Rev. (forthcoming 1984).Google Scholar

18 The wording of the fact situation presented to community observers, which was altered to protect the privacy and anonymity of the actual parties who participated in this study, was:. The Johnson's five-year-old daughter, Jane, was playing with some friends on the sidewalk in front of the Johnson's home. A local construction company had dug a ditch beyond the sidewalk. There were no barricades or ropes around the ditch. Jane fell in and cut her arm. The injury required stitches and left a four-inch scar. Supplementary questions probed (among other things) variability of problem perception and response to the problem among individuals of different income levels, Latinos versus Anglos, and long-time residents versus newcomers. Community observers were asked to respond to these various fact situations by citing specific events or cases in the community.Google Scholar

19 The head of the local collection agency did, however, report that he sometimes encountered such questions in his own efforts to obtain payment of overdue accounts (e.g., from patients who questioned why they should pay an office visit fee to a doctor who did no more than refer them to another practitioner) The wording of this fact situation was as follows: Max hired Barry for $100 to set up a fence around a building owned by Max. After Barry set up the fence, Max sent him a check for $75. Barry wrote to Max and requested the remaining $25, but Max has not paid him. Supplementary questions probed variability of perception and response to the problem when services were performed for the local branch of a national soft drink company as contrasted with services performed for Max as an individual, Barry as a relatively wealthy individual versus Barry as a relatively poor individual, Barry as a man versus Barry as a woman, Barry as Anglo versus Barry as Latino, or Barry as long-time resident versus Barry as newcomer. As in the personal injury case, community observers were encouraged to respond to these various fact situations by describing and discussing comparable events or cases in the community.Google Scholar

20 The head of the local collection agency, however, maintained that lumping, or at least postponement of collection, was prevalent among local doctors. See infra discussion at 828.Google Scholar

21 The current director of the collection agency insisted that he was far less prone to litigate than the person who ran the agency during the period 1975–76, when the cases in the docket sample were filed. If the policy of the collection agency had changed in this respect, it could not be proven or disproven by the data gathered in this study. The former director of the collection agency was not available to be interviewed, but the current director was familiar with his policies and practices.Google Scholar

22 See Engel, supra note 6, at 444.Google Scholar

23 . See, e.g., Friedman, & Percival, , supra note 4; McIntosh, , supra note 4; Craig Wanner, The Public Ordering of Private Relations Part Two: Winning Civil Court Cases, 9 Law & Soc'y Rev. 293 (1975).Google Scholar

24 Many of the sealed cases, which included adoptions and petitions for marriage license orders, may have been handled in this manner, too.Google Scholar

25 As Jacob observes, “Garnishments were an effective way to contact debtors when all other methods failed. When their wages were withheld, most debtors contacted creditors and made new arrangements to pay their debts.” Herbert Jacob, Debtors in Court: The Consumption of Government Services 100 (Chicago: Rand McNally & Co., 1969).Google Scholar

26 The three primary categories of case outcomes in table 4 are derived from the longer list of more specific case outcomes in table 3: (1) “outcome for plaintiff” includes ex parte petition granted, estate probated without contest, default judgment for plaintiff, summary judgment for plaintiff, and judgment at trial or hearing for plaintiff; (2) “outcome for defendant” includes default judgment for defendant, involuntary dismissal before trial, involuntary dismissal at trial, and judgment at trial or hearing for defendant; and (3) “agreed outcome” includes consent judgment and voluntary dismissal.Google Scholar

27 See, e.g., Note, The Persecution and Intimidation of the Low-Income Litigant as Performed by the Small Claims Court in California, 21 Stan. L. Rev. 1657 (1969); David Caplovitz, The Poor Pay More: Consumer Practices of Low-Income Families (New York: Free Press, 1967); Wanner, supra note 24; Federal Trade Commission, Economic Report on Installment Credit and Retail Sales Practices of District of Columbia Retailers (Washington, D.C.: Government Printing Office, 1968).Google Scholar

28 It should be emphasized that “agreed outcome” in this section is not equivalent to “two-party non-adversarial processing” in the preceding section. The former refers to outcomes, while the latter refers to the process by which outcomes were obtained. Thus, e.g., adversarial processing (classified as “adjudicated contest” in the preceding section) might result in a consent judgment (classified as “agreed outcome” in this section).Google Scholar

29 Cases involving represented defendants and unrepresented plaintiffs are not considered here because such cases were too few in number to permit comparisons of this kind.Google Scholar

30 Comparisons of this kind are obviously limited in the sense that the cases in each of the representation configurations may not be equivalent. The decisions of plaintiffs and defendants about when to hire lawyers may be based in part on the strengths or weaknesses of their cases. Thus, differences in outcomes among the various representation configurations may result as much from intrinsic differences in the cases themselves as they do from the influence of lawyer involvement.Google Scholar

31 Once again, it should be remembered that sealed family cases were not included in the analysis.Google Scholar

32 See supra discussion at 821–22.Google Scholar

33 . Aubert, Vilhelm, Competition and Dissensus: Two Types of Conflict and of Conflict Resolution, 7 J. Conflict Resolution 26 (1963).Google Scholar

34 . I have argued elsewhere that such transformations are significant enough to frustrate efforts to compare litigated cases to nonjudicial “disputes” on a one-to-one basis, as if such entities rather than the underlying strata of social relationships were the appropriate subjects of analysis. For a thoughtful discussion of the transformation of disputes, see Mather, Lynn & Yngvesson, Barbara, Language, Audience, and the Transformation of Disputes, 15 Law & Soc'y Rev. 775 (19801981).Google Scholar

35 . At the time of the study, the relevant portion of § 1001 of what was then chapter 68 of the Illinois Revised Statutes read as follows: “neither husband nor wife may sue the other for a tort to the person committed during coverture.” In a later amendment, effective in 1981, the statute was revised to permit spouses to sue one another for intentional torts to the person, but not torts of negligence (III. Rev. Stat. ch. 40, ¶ 1001 (supp. 1982).Google Scholar

36 Historically, tortlike remedies were sometimes built into divorce decrees in the form of alimony payments that took into account the wrongful conduct of one of the spouses. See Homer H. Clark, Jr., The Law of Domestic Relations in the United States, 442, 446 (St. Paul, Minn.: West Publishing Co., 1968). However, as we have seen, alimony was seldom, if ever, awarded in Sander County, so even a tortlike “damage award” for personal injuries involving husbands and wives in divorce actions was effectively precluded.Google Scholar