1 We should make clear at the outset that our references to “civil justice” or the “civil justice system” are not to be confused with the civil law systems found in Western Europe, Latin America, and elsewhere. Our terminology is meant only to distinguish civil cases and institutions from those associated with the criminal law in the Anglo-American legal tradition.Google Scholar

2 The term “system” (as in “civil system” and the “criminal system”) appears frequently in the traditional legal literature and has, through long usage, acquired a commonly understood meaning. When we use the term in this essay, we intend that it carry this traditional meaning. In our analysis of civil case processing, we have also been cognizant of a more specialized theory of “systems” developed relatively recently in the social and natural sciences. Systems theory has had a far-reaching and pervasive influence not confined to any particular scientific discipline. In our discussion, the influence of general concepts and insights provided by systems theory should be apparent. In particular, we have drawn on the concept of a system as (a) composed of parts interrelated in particular ways, (b) characterized by specific patterns of mutual interaction among such parts, and (c) continually changing internally in reaction to external forces and moving toward new forms of equilibrium while retaining consistent and recognizable structural features. While these general concepts have been useful in formulating and communicating our model of the civil justice system, we do not attempt to deal with the technical complexities of systems theory nor do we incorporate by reference any of the sometimes conflicting schools and interpretations it has spawned. Further, we view the civil justice system as a dynamic and flexible structure fully capable of being changed and improved, whether through internal processes or through carefully considered external initiatives, a view not shared by some interpretations of systems theory.Google Scholar

3 There have been legal and sociolegal studies of parts of the civil justice system, including such substantive areas as divorce, personal injuries, consumer problems, mental health, debtor-creditor relations, and the like. Studies of procedural matters have been concerned with such subjects as jury trials, small claims courts, court delay and backlog problems, the creation and implementation of procedural codes, the revision of evidentiary rules, and nonjudicial dispute-handling processes. The commonalities and cross-relationships among these various topics within the civil system, however, are not often considered in any depth.Google Scholar

4 For a discussion of the problematic nature of the term “case” in this context, see pp. 304–5 infra. As to our concept of a “system,” see note 2 supra.Google Scholar

5 In the late nineteenth and early twentieth centuries, the influence of the beginnings of sociological jurisprudence and “legal realism” contributed to a widespread re-examination of, and interest in, trial court processes. Many reform proposals, such as the creation of small claims courts and juvenile courts, date from this period.Google Scholar

6 For example, activist groups from the early progressives to civil rights, environmental, and consumer advocate groups have favored expanded concepts of jurisdiction and standing, the implementation of class action procedures, the creation of new regulatory agencies such as the Consumer Protection Agency, the Environmental Protection Agency, and the Equal Employment Opportunity Commission, and the institution of new investigatory resources and remedies at all levels of government.Google Scholar

7 There has been a clearly discernible counterreaction to the expansion of judicial intervention, especially in such areas as civil rights, labor relations, environmental and consumer matters, product liability, and professional malpractice. Individuals and groups have advocated a variety of measures to cut down on suits of these kinds. Such measures include revision of jurisdictional standards; rule changes to make such litigation more expensive or less convenient; narrowing the definition of class; the reduction of government subsidies of legal fees; and the amendment of regulations that are believed to generate unnecessary litigation in such areas as equal employment, affirmative action, occupational safety and health, and environmental protection.Google Scholar

8 Although reforms are seldom advertised as “elaborations” of existing practice, the following have had that effect in whole or in part: the enactment of measures providing for extensive discovery and pretrial conference procedures; the interposition of administrative remedies that must be “exhausted” before litigation is permitted; and various due process requirements to assure consistency and fairness in such matters as service of process, garnishments and wage assignments, repossessions, foreclosures, and evictions. Reforms that have tended to “simplify” existing procedures include the creation of specialized forums with simplified processes (e.g., small claims courts) and the simplification of various substantive areas of law (such as no-fault divorce or new probate laws modeled after the Uniform Probate Act). Some reforms are anomalous in this regard, such as the movement that led ultimately to enactment of the Federal Rules of Civil Procedure and its state equivalents. While simplifying and streamlining civil pleading and litigation in some respects, the codes have tended to elaborate pretrial activities and introduce new complexities into the earlier phases of judicial processing.Google Scholar

9 Efforts to assure everyone a lawyer, for example, include legal aid services, group legal service plans, legal insurance, and general liability insurance. Efforts to make lawyers unnecessary include the establishment of pro se courts, where lawyers are discouraged or barred, and the creation of diversion systems to handle civil cases through mediation, counseling, arbitration, and other simplified or nonadversarial processes.Google Scholar

10 In some senses our perspective resembles that of the group Jerome Frank termed “fact skeptics”—those who advocated a realistic and empirically based view of the ways in which trial courts actually process civil cases. Whereas that group emphasized judicial processes and the effort to make trials themselves more accurate and just, our emphasis is on viewing the realities of civil litigation in terms of the broader legal and social contexts in which civil cases arise and are handled in a variety of ways—nonjudicial as well as judicial and postjudicial. See Jerome Frank, Courts on Trial: Myth and Reality in American Justice 73–74 (New York: Atheneum, 1963).Google Scholar

11 We are also aware that litigation itself is no longer a sui generis procedure and is therefore a somewhat arbitrary criterion for us to use in selecting one group of civil matters for special consideration. The development and expansion of quasi-judicial administrative proceedings in recent years has blurred the distinction between judicial and nonjudicial case processing and has, in effect, created a third—administrative—realm of law in addition to the civil and the criminal. To the extent that such proceedings have become so formalized that they resemble the more traditional processes of our trial courts, they may, for purposes of analysis, fall within our fourth stage—judicial processing. To the extent that they remain less formal and tend themselves to lead to litigation, they may fall within our second and third stages. Although we do not consider such processes at length in this paper, we allude to them at various points and view them as compatible with and, in some senses, illustrative of the five-stage model we present.Google Scholar

12 The distinction between “events” and “legal events” may be clarified by a brief reference to labeling theory, which deals with the processes by which particular forms of conduct come to be viewed as socially proscribed or deviant. The perception and characterization of certain events as “legal” depends in large measure on processes similar to those that lead to the labeling of certain behavior as deviant. Kai T. Erikson provides a succinct summary of labeling theory: Deviance is not a property inherent in any particular kind of behavior; it is a property conferred upon that behavior by the people who come into direct or indirect contact with it. The only way an observer can tell whether or not a given style of behavior is deviant, then, is to learn something about the standards of the audience which responds to it. Wayward Puritans: A Study in the Sociology of Deviance 6 (New York: John Wiley & Sons, 1966). Similarly, if we want to know whether a particular primary event may be characterized as “legal” (assuming it meets some minimum standard of technical actionability), we must consider social and cultural factors that shape the process of definition. See also Kai T. Erikson, Notes on the Sociology of Deviance, 9 Soc. Prob. 307–14 (1962); Howard S. Becker, Outsiders: Studies in the Sociology of Deviance (New York: Free Press of Glencoe, 1963); John I. Kitsuse, Societal Reaction to Deviant Behavior: Problems of Theory and Method, in Howard S. Becker, ed., The Other Side—Perspectives on Deviance 87–102 (New York: Free Press, 1964).Google Scholar

13 Although the etiology of civil cases generally has not been explored, this issue has been addressed in certain subfields, such as that of automobile accidents (see, e.g., H. Laurence Ross, Settled Out of Court: The Social Process of Insurance Claims Adjustments (Chicago: Aldine Publishing Co., 1970)) and family cases (see, e.g., Max Rheinstein, Marriage Stability, Divorce, and the Law (Chicago: University of Chicago Press, 1972)).Google Scholar

14 E.g., Felice J. Levine & Elizabeth Preston, Community Resource Orientation Among Low Income Groups, 1970 Wis. L. Rev. 80; Leon Mayhew & Albert J. Reiss, Jr., The Social Organization of Legal Contacts, 34 Am. Soc. Rev. 309 (1969); Leon H. Mayhew, Institutions of Representation: Civil Justice and the Public, 9 L. & Soc'y Rev. 401 (1975); and Barbara A. Curran's nationwide study, The Legal Needs of the Public: The Final Report of a National Survey (Chicago: American Bar Foundation, 1977).Google Scholar

15 See, e.g., David Caplovitz, The Poor Pay More: Consumer Practices of Low-Income Families (New York: Free Press of Glencoe, 1963); Carol Hecht Katz, ed., The Law and the Low Income Consumer, New York University School of Law Project on Social Welfare Law Supplement No. 2 (New York: New York University School of Law, 1968); Warren G. Magnuson & Jean Carper, The Dark Side of the Marketplace: The Plight of the American Consumer 32–58 (Englewood Cliffs, N.J.: Prentice-Hall, 1968); Sidney Margolius, The Innocent Consumer vs. the Exploiters (New York: Trident Press, 1967); U.S., Federal Trade Commission, National Consumer Protection Hearings (Washington, D.C.: Government Printing Office, 1968); U.S., Congress, Senate, Committee on Government Operations, Subcommittee on Reorganization, Research and International Organizations, and Committee on Commerce, Subcommittee on Consumers, Joint Hearings on S. 707 and S. 1160, 93d Cong., 1st Sess., 1973; Arthur Best & Alan R. Andreasen, Consumer Response to Unsatisfactory Purchases: A Survey of Perceiving Defects, Voicing Complaints, and Obtaining Redress, 11 L. & Soc'y Rev. 701 (1977); Mary Gardiner Jones & Barry Boyer, Improving the Quality of Justice in the Marketplace: The Need for Better Consumer Remedies, 40 Geo. Wash. L. Rev. 357 (1972); U.S., Department of Health, Education and Welfare, Office of Consumer Affairs, A National Survey of the Complaint-handling Procedures Used by Consumers, prepared by Donald W. King & Kathleen A. McEvoy (Rockville, Md.: King Research Inc., Center for Quantitative Sciences, 1976); Redress of Consumer Grievances: Report of the National Institute for Consumer Justice (Washington, D.C.: National Institute for Consumer Justice, [1972]) and staff studies prepared for the National Institute for Consumer Justice; William C. Whitford, Law and Consumer Transaction: A Case Study of the Automobile Warranty, 1968 Wis. L. Rev. 1006.Google Scholar

16 There appears to be an operating assumption among many criminal law specialists that the next significant step after the occurrence of the legal event is police or prosecutorial intervention and, if this step does not follow the legal event, that the case is effectively terminated.Google Scholar

17 Where police accept the role of domestic relations counselors, for example, it appears more likely that family disputes will be received as part of their day-to-day case intake. Where the police are organized to handle more traditional criminal matters, such as street crimes, criminal investigations, auto chases, and the like to the exclusion of family matters, then fighting spouses may decide to take their grievances to some other resource. If a complaint does not mesh with the local police style, the individual will be rebuffed or referred elsewhere, and in time the public may learn to respond to particular legal events in the manner preferred by local authorities. The same is undoubtedly true of the practices of local prosecutors. Thus, a feedback loop is established between actual contact with authorities and the response decisions and perceptions of legal events by victims of criminal behavior. See James Q. Wilson, Varieties of Police Behavior: The Management of Law and Order in Eight Communities (Cambridge, Mass.: Harvard University Press, 1968).Google Scholar

18 Such resources include the entire range of private associations that operate to influence legal policy and precedent, from national, state, and local bar associations to single-issue interest groups organized to change or maintain the status quo.Google Scholar

19 Few studies of lawyers have examined in detail the effect of professional style and structure on how civil cases are handled. Douglas E. Rosenthal, Lawyer and Client: Who's in Charge? (New York: Russell Sage Foundation, 1974) is one exception. Even less common have been studies of other professional or voluntary groups or organizations exploring the effect of their style and structure on civil case processing. Organizational effects on case handling in the urban setting are also discussed in Herbert Jacob, Urban Justice: Law and Order in American Cities (Englewood Cliffs, N.J.: Prentice-Hall, 1973). Jacob begins by observing, “Just as the police are the principal gatekeepers regulating the now of criminal cases to the courts, so the legal profession is the chief regulator of the flow of civil cases.”Id. at 34. In an influential study of the availability of lawyers' services, Barlow F. Christensen discusses at length the relationship between structural elements of law practice and how legal matters are handled by lawyers. Barlow F. Christensen, Lawyers for People of Moderate Means: Some Problems of Availability of Legal Services (Chicago: American Bar Foundation, 1970).Google Scholar

20 Litigation can, of course, be pursued pro se, but this is still a relatively infrequent occurrence.Google Scholar

21 The analogy of the civil to the criminal system at this stage is clearly apparent. It is by now a commonplace to observe that the vast majority of criminal cases processed by police and prosecutors never go to trial but are disposed of in the pre-judicial stages, generally by dismissal, diversion (usually taking the form of a conditional dismissal), and plea bargaining. Negotiation is dominant, particularly in plea bargaining. When this occurs, the prosecutor agrees to drop a more serious charge in exchange for the agreement of the accused to plead guilty to a less serious charge. Often the prosecutor also agrees to recommend to the judge a particular sentence as part of the agreement, a recommendation that typically is followed. Thus the traditional vision of the prosecutor as investigator, marshaler of evidence, and advocate and of the court (judge or jury) as trier of fact and decider of guilt and punishment gives way to a perception that pre-judicial disposition is the rule and that the fate of criminal cases is determined largely by police and prosecutors through negotiation with the accused. Compare Jacob, supra note 19, at 65–68.Google Scholar

22 Cf. id. at 121.Google Scholar

23 See Simmel's discussion of “The Triad” (1908). Georg Simmel, The Sociology of Georg Simmel, ed. & trans. Kurt H. Wolff, 145–69 (New York: Free Press, 1950).Google Scholar

24 Although a filing has already occurred, for purposes of our analysis we shall group such pretrial negotiations under the heading of stage 3 (pre-judicial processing) rather than with the formal and more traditionally conceived activities that occur in stage 4 (judicial processing).Google Scholar

25 Jacob, supra note 19, at 63–68, makes a similar pointGoogle Scholar

26 Our emphasis on trial courts should not obscure two vital functions performed by appellate courts in our model. First, appellate review serves to supervise trial court processes as well as to revise and refine rulings by trial judges and the legal framework from which such rulings derive. Second, judgments issued by appellate courts, like those issued by trial courts, disseminate norms and order behavior within the legal system and in society generally. Indeed, because of their greater visibility and prestige, appellate courts are often far more influential than trial courts in this regard.Google Scholar

27 Even in those cases in which a criminal trial judge actually convicts and imprisons a defendant, the judge is keenly aware that significant discretionary decisions will reside with others in the criminal justice system. Thus, even for individuals who are sentenced to terms of imprisonment, the prison authorities will decide what sort of a prison to place them in (this may range from solitary confinement or a Bastille-like maximum-security fortress to a work-release or a low-key minimum-security camp or farm), and the parole board will decide how long a term the individuals will actually serve.Google Scholar

28 Although lis pendens notices are filed earlier in the process of litigation (stage 3 or stage 4), the purpose for which they are filed is to tie up assets as security for eventual collection, and thus they anticipate and have their impact in stage 5.Google Scholar

29 Jacob reports that the “expected outcome of garnishment actions” from the creditor's point of view is out-of-court negotiation rather than formal enforcement: “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 100–101 (Chicago: Rand McNally & Co., 1969).Google Scholar

30 The impact of judicial decisions on attitudes, perceptions, and behavior may be heightened by the publicity and added visibility of appellate review.Google Scholar

31 We do not mean to imply that the civil and criminal systems are parallel in all respects or that every legal event in society could enter either system. In different social and cultural contexts the two systems may be developed and emphasized in rather different ways. The development of our own legal system has placed heavy emphasis on restricting the applicability of criminal sanctions as, for example, in the constitutional requirements of clear and prospective public statement and narrow construction of criminal laws. This emphasis has introduced an asymmetrical relationship between the two systems in our society such that many civil causes of action could not be prosecuted as crimes under the existing criminal statutes. On the other hand, most crimes could be construed as violations of civil standards of conduct. Restatement (Second) of Torts$ 288B (1965), for example, states how civil standards defining negligence may be derived from criminal legislation. This asymmetrical relationship between the civil and the criminal systems in our own society does not necessarily hold true in other settings, where quite different patterns may be observed. In some legal systems, for example, nearly all “civil” causes of action may be processed as crimes and regarded as offenses against the collectivity. Indeed, in our own system, causes of action now considered exclusively civil in character may once have been prosecutable as crimes or may in the future be so defined.Google Scholar

32 See Eric H. Steele, Fraud, Dispute, and the Consumer: Responding to Consumer Complaints, 123 U. Pa. L. Rev. 1107, 1107–10 (1975).Google Scholar

33 Just as the perception and characterization of primary events as “legal” or “nonlegal” result from a process of labeling, the perception and definition of legal events as civil or criminal in character result from a further labeling process. See note 12 supra.Google Scholar

34 See Lon L. Fuller, Anatomy of the Law (1968; reprint ed., Westport, Conn.: Greenwood Press, 1976), especially his discussion of how behavior and formal rules contribute to the existence and meaning of law (at 8–11) and of “implicit elements in made law” (at 57–69).Google Scholar

35 This discussion of responses to legal events is meant to include corporate, collective, and institutional actors as well as individuals. A large proportion of social activity is in fact carried on by organizations, and organizations are frequently considered “legal entities” and appear as parties in civil litigation. In discussing the decision to respond to legal events, however, it must be remembered that decisions are framed and made by individuals whether the entity involved is an individual or an organization.Google Scholar

36 See Raymond T. Nimmer, The Nature of System Change: Reform Impact in the Criminal Courts, ch. 7 (Chicago: American Bar Foundation, 1978); Richard S. Frase, The Speedy Trial Act of 1974, 43 U. Chi. L. Rev. 667 (1976).Google Scholar

37 Eric H. Steele & Raymond T. Nimmer, Lawyers, Clients, and Professional Regulation, 1976 A.B.F. Res. J. 917.CrossRefGoogle Scholar

38 This is a principal theme of David M. Engel, Code and Custom in a Thai Provincial Court: The Interaction of Formal and Informal Systems of Justice (Tucson: University of Arizona Press, 1978).Google Scholar

39 See, e.g., Warren E. Burger, Agenda for 2000 A.D.–a Need for Systematic Anticipation, 70 F.R.D. 83, 94 (address delivered at the National Conference on the Causes of Popular Dissatisfaction with the Administration of Justice, St. Paul, Apr. 7–9, 1976); Daniel McGillis & Joan Mullen, Neighborhood Justice Centers: An Analysis of Potential Models (Washington, D.C.: Department of Justice, Law Enforcement Assistance Administration, 1977).Google Scholar

40 Karl Llewellyn & E. Adamson Hoebel, The Cheyenne Way 20 (Norman: University of Oklahoma Press, 1941).Google Scholar

41 For one systematic conception of the relationship between these two functions and the institutions that serve them, see Steele, supra note 32, at 1111–17.Google Scholar

42 Since our use of the terms “mechanistic” and “organic” may call to mind Emile Durkheim's classic discussion of “mechanical” and “organic” social solidarity in The Division of Labor in Society, trans. George Simpson (New York: Free Press, 1933), some of the similarities and differences between his usage and ours should be noted. Durkheim emphasized the centrality of the legal system both in expressing cultural norms and in re-creating and reinforcing the normative cohesiveness and morale of society through the invocation of legal norms in action. To the extent that any modern study explores the interrelationships among legal processes and social ordering, a substantial debt to Durkheim must be acknowledged. Despite this fact, however, and despite the similarities between our terminology and his, our definitions and models differ substantially. While influenced by his central conception, we do not wish to incorporate by reference Durkheim's theoretical scheme. Durkheim linked his “mechanical” and “organic” paradigms explicitly to the degree and nature of social development. Mechanical solidarity, associated with repressive, penal-type sanctions, typified, for Durkheim, less complex societies, while organic solidarity, associated with restitutive sanctions, typified more complex and highly differentiated societies. We assume no such developmental linkages and view neither of our paradigms as having a particular association with either repressive or restitutive sanctions. Rather, in applying our “mechanistic” and “organic” paradigms to the civil justice system, we assume that both are always present or possible and merely become more or less prominent or highly valued in differing times and situations. Further, we view our mechanistic and organic paradigms as related to sources other than Durkheim which are equally relevant. There are, for example, “organic” aspects to the natural law assumption that legal norms are immanent in social actors or in human society rather than propounded de novo by courts or legislative organs. While courts may clarify and effectuate such norms in certain cases, according to this view, the essence of the legal process is the natural harmony and cohesion that results from legal tribunals articulating laws that were, in a sense, “already there” in the social collectivity. Similarly, we may perceive certain “mechanistic” elements in the positivist assumption that the essence of law is prior command and that legal norms should be enunciated in advance and implemented in case after case by governmental tribunals. Through the courts' repeatedly applying such rules to social actors, legal norms could be disseminated throughout society, and social behavior could be shaped in a rational manner. Numerous other manifestations of the organic and mechanistic paradigms could be cited in works deriving from the historical, anthropological, and sociological schools of jurisprudence (which occasionally reflect an organic perspective) or in works of the American realists (whose perspective is more typically mechanistic). None of these jurisprudential schools adopts either perspective to the exclusion of the other, but they have each refined and revised the two paradigms in distinctive ways and lent their weight to the impact of these perspectives upon prevailing views of legal processes and the civil justice system.Google Scholar

43 This line of thought may be illustrated by Holmes's theory of law as seen from the perspective of the “bad man,” who guides his behavior solely by his estimate of the outcome of possible litigation. See Holmes, The Path of the Law, 10 Harv. L. Rev. 457 (1897). Also pertinent are the writings of the group Jerome Frank termed “rule skeptics.” These individuals argued that lawyers would better serve society—as well as their clients—if, before filing a lawsuit, they could anticipate more accurately the ultimate outcome. Accordingly, they sought to improve the art of predicting judicial decisions based on past dispositional patterns. Generally speaking, they tended to concentrate their efforts on the activities of the appellate courts. See Frank, supra note 10, at 74–75; Karl N. Llewellyn, The Common Law Tradition: Deciding Appeals (Boston: Little, Brown & Co., 1960).Google Scholar

44 See Durkheim, supra note 42; Erikson, supra note 12, at 1–31.Google Scholar

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

46 Conceived and implemented in this way, judicial decision making begins to take on some of the aspects of the legislative process. Nevertheless, important distinctions between adjudication and legislation remain. See Lon L. Fuller, The Forms and Limits of Adjudication, 92 Harv. L. Rev. 353 (1978).CrossRefGoogle Scholar

47 This function of the legal system is explored in, for example, Johannes Andenaes, Punishment and Deterrence (Ann Arbor: University of Michigan Press, 1974); June Louin Tapp & Felice J. Levine, eds., Law, Justice and the Individual in Society: Psychological and Legal Issues (New York: Holt, Rinehart & Winston, 1977), especially pt. II; June Louin Tapp & Felice J. Levine, Legal Socialization: Strategies for an Ethical Legality, 27 Stan. L. Rev. 1 (1974).Google Scholar

48 The term “ideal type” is not meant to carry any positive or negative connotation but is used here in the Weberian sense. An ideal type is a “mental construct” abstracted from observable social reality, which isolates certain essential features in order to apprehend and analyze complex social phenomena more effectively. See Max Rheinstein, Introduction to Max Weber, Law in Economy and Society xxix-xxx (1954).Google Scholar

49 The assumption behind such arguments is that cases that are not fully adjudicated are simply not processed in any significant way by the legal system and therefore do not obtain justice. Since only a small fraction of legal events ordinarily reach full adjudication (stage 4), this argument raises for us the question of whether dispositions at all other stages tend to be unfair—that is to say, whether the vast bulk of civil cases reach unjust outcomes. This question simply cannot be answered with any assurance. While it is undoubtedly true that the cause of justice would be advanced by adjudication in many instances, we suspect that this is far from universally true, especially when the costs of adjudication in such cases are balanced against the sometimes incremental difference in benefits that could be obtained through adjudication. If it could be established that nonjudicial or extrajudicial dispositions did indeed lead to acceptable results in large numbers of cases, then the objective of reform should logically shift toward assuring the availability of a relatively noncostly “appeal” to the civil trial court whenever outcomes in early stages were believed unjust. Judicial supervision over the nonjudicial disposition of cases at earlier stages should, according to this approach, be strengthened and improved. This type of judicial supervision might resemble that imposed upon the earlier stages of criminal case processing by the Warren Court decisions in criminal rights cases involving the handling of suspects by police and prosecutors.Google Scholar

50 Critics, of course, argue forcefully that such suggestions promote “second-class justice” for the vast bulk of civil cases, a double standard of due process dependent on the amount at stake or the means of the parties. In effect, they pit the mechanistic paradigm against the organic in opposing the segregation of certain groups of civil cases from forums in which due process is strictly observed.Google Scholar

51 In considering this debate over the alleged double standard of due process, it might be useful to draw upon a distinction, familiar in other contexts, between equality and equal opportunity. In the areas of employment and education, for example, it is urged that while everyone is not equal and never will be, our values of equality are served by equal opportunity: the fair chance to achieve. Applied to the legal setting, this analogy might suggest that if nonadjudicatory procedures were to be made efficient and fair and if adjudication itself were somehow made available to all who wanted it, the fact that most cases never reach adjudication should not in itself be cause for alarm. That is, it may not be the fact of adjudication but the opportunity for adjudication—the full panoply of due process safeguards—which is important. The opportunity for adjudication means in effect that the case may go onto the next stage if the parties insist. If this opportunity were made real for all parties and all cases (a considerable and perhaps impossible task) and were generally known, it would require a significant degree of judicial supervision and control over the earlier nonjudicial processes, since the disposition at an earlier stage could always be overturned by an appeal to the civil trial court. The formulation of a supervisory or managerial role for a trial court judge would not, as we have seen, depart far from procedures that have already evolved on a de facto basis.Google Scholar

52 See 15 U.S.C. $ 2310 (1976) and regulations issued thereunder by the Federal Trade Commission, found at 16 C.F.R. $ 703–703.8 (1978).Google Scholar

53 It is interesting to note, however, that when government-related organizations have attempted to create such institutions out of whole cloth, they have met with only limited success. Typically, when such a body is organized, few clients appear except those referred by local police, court clerks, or prosecutors' offices. See McGillis & Mullen, supra note 39. Thus, while these institutions should theoretically operate at stage 2 of the civil system (as an alternative to be explored before contact with the formal legal system), they have in actual practice been appended to the formal legal system, typically on the criminal justice side, as diversionary mechanisms at stage 3 (pre-judicial processing), after contact has already been made with the formal legal system. The ability of such government-created institutions to function effectively in other ways has not been consistently demonstrated.Google Scholar

54 See Earl Johnson, Jr., Valerie Kantor, & Elizabeth Schwartz, Outside the Courts: A Survey of Diversion Alternatives in Civil Cases, National Center for State Courts Publication no. R0023 (Denver: National Center for State Courts, 1977); U.S., Department of Justice, Law Enforcement Assistance Administration, National Institute of Law Enforcement and Criminal Justice, The New Justice: Alternatives to Conventional Criminal Adjudication, prepared by David E. Aaronson et al. (Washington, D.C.: Government Printing Office, 1977). Such diversion of civil cases from the trial court under the organic paradigm may be contrasted with the diversion of cases under the mechanistic paradigm, discussed at p. 337 supra. Under the mechanistic paradigm the distinction between true cases and controversies and other kinds of legal matters is critical to the diversion decision. Only when a lawsuit presents a fundamentally irreconcilable legal dispute is judicial processing viewed as fully appropriate. In the case of the organic paradigm, however, the distinction is less important. Here, the dominant concern is to disseminate legal rules and norms as broadly and effectively throughout society as possible. While full judicial processing may occasionally serve that purpose, for the vast majority of legal matters it is more likely that informal and conciliatory procedures will do better, even when the legal matter presents a real case or controversy. Once the applicable norm has been articulated in an exemplary or illustrative case, the organic perspective views the value of litigation for all related legal matters as greatly diminished.Google Scholar

55 Arbitration can be a required procedure, for instance, among trade organizations, retail stores, community groups, and other organizations, or may be suggested in particular disputes on an ad hoc basis. Sometimes the arbitration of disputes arising under a particular contract may be stipulated within the contract itself. This commonly occurs, for example, in contracts for insurance, architectural services, and construction. Arbitration may also be used as a form of civil diversion after the filing of the case in court, either as a consensual alternative procedure (as in New York City Small Claims Court; see Austin Sarat, Alternatives in Dispute Processing: Litigation in a Small Claims Court, 10 L. & Soc'y Rev. 339 (1976)), or as a mandatory alternative process (as in Los Angeles personal injury cases with small damages and in Cleveland small civil cases; see California, Judicial Council of California, A Study of the Role of Arbitration in the Judicial Process [1972]).Google Scholar

56 Roscoe Pound, The Causes of Popular Dissatisfaction with the Administration of Justice, 35 F.R.D. 273 (1964).Google Scholar

57 Id. at 273.Google Scholar