1 John H. Barton, Behind the Legal Explosion, 27 Stan. L. Rev. 567 (1975). This and other claims about the “litigation explosion,” by both professional commentators and others, are critically discussed in Marc Galanter, Reading the Landscape of Disputes: What We Know and Don't Know (and Think We Know) About Our Allegedly Contentious and Litigious Society, 31 UCLA L. Rev. 4 (1983).Google Scholar

2 James Willard Hurst, The Functions of Courts in the United States, 1950–1980, 15 Law & Soc'y Rev. 401, 409 (1980–81).Google Scholar

3 Also see Lawrence M. Friedman, Courts Over Time: A Survey of Theories and Research, in Keith O. Boyum & Lynn Mather, eds., Empirical Theories About Courts (New York: Longman Inc., 1983).Google Scholar

4 The literature on court activities produced over the past 30 years, according to Hurst, has dealt with “only small parts of this sprawling country-with a handful of metropolitan-area trial courts, a few federal trial and intermediate appellate courts, almost no courts in rural or small-town settings …. Few studies of state courts, done before or after 1950, reached deep back into the 19th century…. The want of depth in time meant that, particularly for states, we lacked the basis for making long-term generalizations about stability or change in rates of litigation in relation to population or to any other measures of social context.” Hurst, supra note 2, at 407–8.Google Scholar

5 See Galanter, supra note 1. In fact, Galanter suggests that recent work on civil litigation may well show that there is no real crisis. He argues that the “crisis” may be a perception out of touch with reality, the product of a professional elite who have “a limited and spotty grasp of what the bulk of the legal system is really like.”Id. at 61. Too often the claims of “crisis,” he says, are “a strong admixture of naive speculation and undocumented assertion.”Id. at 62. One of his prime examples is the statement by John Barton, supra note 1, at 567, quoted at the opening of this article.Google Scholar

6 Galanter, supra note 1, at 11.Google Scholar

7 I have purposely chosen to label the social development notion a “model” in this context rather than a “theory.” Explicit attention to theory has not been a major concern of the literature on court activity. Most energy has been devoted to studies that are essentially exploratory–-discovering what's out there–-and guided, more or less, by the social development model. “The distinction between models and theories is in many ways not a hard-and-fast one.” Alan C. Isaak, Scope and Methods of Political Science: An Introduction to the Methodology of Political Inquiry (3d ed. Homewood, Ill.: Dorsey Press, 1981). But there is one nonetheless. Simply put, a theory is a set of systematically related generalizations (Ronald E. Chilcote, Theories of Comparative Politics: The Search for a Paradigm (Boulder, Colo.: Westview Press, 1981)) that provides a logical and consistent explanation. Its “major function is explanation-to explain singular facts and occurrences, but perhaps more importantly to explain empirical generalizations.” Isaak, supra, at 171. In contrast, models “construct, bring disparate parts together, and demonstrate relationships …. They can facilitate understanding, but they cannot explain.” Chilcote, supra, at 21. In short, theories are used to explain facts while models are used to discover them. Isaak, supra, at 168. As used in the literature on courts, the social development notion is more like a model or conceptual scheme being used in a process of discovery. Also see Abraham Kaplan, The Conduct of Inquiry: Methodology for Behavioral Science (San Francisco: Chandler Publishing Co., 1964).Google Scholar

8 Robert W. Gordon, Critical Legal Histories, 36 Stan. L. Rev. 57 (1984).Google Scholar

9 The same type of idea occasionally appears in the professional commentary on caseloads, e.g., Seth Hufstedler, The Future of Civil Litigation, 1980 Utah L. Rev. 753, 755.Google Scholar

10 Lawrence M. Friedman, The Legal System: A Social Science Perspective (New York: Russell Sage Foundation, 1975).Google Scholar

11 See Frank Munger, Social Development and Civil Litigation: West Virginia Trial Courts, 1874–1944 (proposal submitted to the Law and Social Sciences Program, National Science Foundation, 1981); Stephen Daniels, Social Development and Litigation Studies: A Critique 2–5 (paper delivered at 1983 Law and Society Association Meeting, Denver).Google Scholar

12 Supra note 1.Google Scholar

13 Developmental or evolutionary models seem at times endemic to modern Western thought. The obvious examples are those fields most influenced by Darwinian thought in the biological and natural sciences. But developmental or evolutionary models abound in the social and behavioral sciences as well-ranging from the grand theorists' considerations of the course of societal or cultural evolution to those studying the development of children. Given the pervasiveness of this way of looking at the world around us, it should not be surprising that a social development model would appear as an intuitively obvious source of explanation for the growth in litigation and legal activity in general. The question, of course, is the pragmatic one of whether it can actually help in understanding long-term trends. The danger is always that something perceived as being intuitively obvious because it taps into a deeply ingrained cultural idea will be accepted and used uncritically.Google Scholar

14 See Daniels, supra note 11, at 11–20; Samuel Krislov, Theoretical Perspectives on Case Load Studies: A Critique and a Beginning, in Boyum & Mather, supra note 3.Google Scholar

15 See Stephen Jay Gould & Niles Eldredge, Punctuated Equilibria: The Tempo and Mode of Evolution Reconsidered, 3 Paleobiology 115 (1977); Wolf V. Heydebrand, The Context of Public Bureaucracies: An Organizational Analysis of Federal District Courts, 11 Law & Soc'y Rev. 759, 771–85 (1977); Erik Olin Wright, Class, Crisis and the State 9–29 (London: New Left Books, 1978); Stephen Jay Could, The Evolutionary Biology of Constraint, Daedalus, Spring 1980, at 39.Google Scholar

16 According to Galanter, supra note 1, at 71: “We have seen the announcement of general conclusions relevant to policy on the basis of very casual scholarly activity. The information base was thin and spotty; theories were put forward without serious examination of whether they fit the facts; values and preconceptions were left unarticulated. Portentous pronouncements were made by established dignitaries and published in learned journals. Could one imagine public health specialists or poultry breeders conjuring up epidemics and cures with such cavalier disregard of the incompleteness of the data and the untested nature of the theory?”Google Scholar

17 See Malcolm Feeley, Court Reform on Trial: Why Simple Solutions Fail (New York: Basic Books, 1983).Google Scholar

18 Feeley has argued that one of the main reasons court reforms fail is a lack of historical perspective. Reformers “discover” a problem and typically suggest bold, yet simplistic, solutions for something that may in fact have a long history or simply be endemic to the system itself (e.g., plea bargaining). What is required, he thinks, is “a realistic appraisal of the capacities of the courts and … that courts be understood in historical perspective and social context. Such a view will lead us to abandon many long-standing notions. It will lead us to moderate expectations and sensitize us to the range of changes we might reasonably expect.”Id. at 19.Google Scholar

19 Munger, supra note 11, at 3. It has been suggested that the vagueness may be an artifact of the interdisciplinary nature of the literature, with researchers from different disciplines reflecting the particular interests of their disciplines. Wayne McIntosh, Private Use of a Public Forum: A Long-Range View of the Dispute Processing Role of Courts, 77 Am. Pol. Sci. Rev. 991, 991 (1983). To a certain extent this may be true. E.g., political scientists-myself included-have tended to add political culture to the model while researchers from other disciplines, naturally, ignore it. Joel B. Grossman & Austin Sarat, Litigation in the Federal Courts: A Comparative Perspective, 9 Law & Soc'y Rev. 321 (1975), and Joel B. Grossman et al., Dimensions of Institutional Participation: Who Uses the Courts, and How? 44 J. Pol. 88 (1980), have even suggested that political culture, rather than socioeconomic factors, may be the primary factor involved in understanding variations in court activity. Also see Herbert Jacob, Debtors in Court: The Consumption of Government Services (Chicago: Rand McNally & Co., 1969); Stephen Daniels, Civil Litigation in Illinois Trial Courts: An Exploration of Rural-Urban Differences, 4 Law & Pol'y Q. 190 (1982).Google Scholar

20 Stephen Jay Gould, Ontogeny and Phylogeny 13–206 (Cambridge: Harvard University Press, Belknap Press, 1977).Google Scholar

21 See Donald Black, The Behavior of Law 37–50 (New York: Academic Press, 1976).Google Scholar

22 Austin Sarat & Joel B. Grossman, Courts and Conflict Resolution: Problems in the Mobilization of Adjudication, 69 Am. Pol. Sci. Rev. 1200, 1209 (1975).Google Scholar

23 E.g., Claude E. Welch, ed., Political Modernization: A Reader in Comparative Political Change 1–16 (2d ed. Belmont, Cal.: Wadsworth Publishing Co., 1971).Google Scholar

24 Roberto Mangabeira Unger, Law and Modern Society: Toward a Criticism of Social Theory 192–223 (New York: Free Press, 1976).Google Scholar

25 See David M. Trubek, Max Weber on Law and the Rise of Capitalism, 1972 Wis. L. Rev. 720.Google Scholar

26 Supra note 22, at 1209.Google Scholar

27 Stephen Jay Gould, Ever Since Darwin: Reflections in Natural History 56–62 (New York: W. W. Norton & Co., 1977).Google Scholar

28 E.g., Richard D. Schwartz & James C. Miller, Legal Evolution and Societal Complexity, 70 Am. J. Soc. 159 (1964); Howard Wimberly, Legal Evolution: One Further Step, 79 Am. J. Soc. 78 (1973).CrossRefGoogle Scholar

29 E.g., Grossman & Sarat, supra note 19.Google Scholar

30 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); McIntosh, supra note 19.Google Scholar

31 Hurst's ideas on the proper subjects of legal history in particular and, by implication, of legal studies generally have been quite influential and have been influenced by legal realism. In lectures given at the University of Michigan Law School he said:Google Scholar

I confess to some irritation that the writing of legal history tends to take the cream off the top of the bottle and let the nutritious skimmed stuff flow down the drain because it is bulky to handle and not so immediately pleasing to taste. With intelligent diligence and some literary flair anyone can make a good story out of the spotlighted star acts, like the Federal Convention or the Legal Tender Cases or the Court-packing bill. But the spotlighted acts could not go on without stage crew and audience, and without a complicated environing pattern of activity which produced a theatre, a city, and an economic surplus sufficient to allow the luxury of star performances….Google Scholar

… Of course, one may look at what is ordinary and see only what is obvious. This is the fair criticism that may be made of a great deal of legal history writing that has dealt only with the internal structure and the formal doctrine and techniques of legal agencies, usually only the courts. There is nothing more deceptive about the ordinary than that it is Likely to appear obvious. Herein lie the uncommonly attractive challenges in studying ordinary events.Google Scholar

James Willard Hurst, Law and Social Process in United States History 17–18 (Ann Arbor: University of Michigan Law School, 1960).Google Scholar

32 E.g., David Thomas Konig, Law and Society in Puritan Massachusetts: Essex County, 1629–1692 (Chapel Hill: University of North Carolina Press, 1979); Michael S. Hindus, Prison and Plantation: Crime, Justice, and Authority in Massachusetts and South Carolina, 1767–1878 (Chicago: University of Chicago Press, 1980); William E. Nelson, Dispute and Conflict Resolution in Plymouth County, Massachusetts, 1725–1825 (Chapel Hill: University of North Carolina Press, 1981); Lawrence M. Friedman & Robert V. Percival, The Roots of Justice: Crime and Punishment in Alameda County, California, 1870–1910 (Chapel Hill: University of North Carolina Press, 1981).Google Scholar

33 James Willard Hurst, The Growth of the Law: The Law Makers 6 (Boston: Little, Brown & Co., 1950).Google Scholar

34 Id. at 11.Google Scholar

35 Id. Google Scholar

36 More recently, Hurst has written: “Realistic legal history must be a social history, pursuing law into whatever relations it has had to the whole course of the society … [there being] so much interplay between law and other-than-legal institutions and values that we ignore reality if we try to treat law as a self-contained area in social life.” James Willard Hurst, Law and Social Orders in the United States 42 (Ithaca, N.Y.: Cornell University Press, 1977).Google Scholar

37 But see Jacob, supra note 19; Friedman, supra note 10, at 204–8, 269–90; Richard D. Shingles & Donald J. Shoemaker, A Developmental Thesis of Legal Cultures: Police-Community Relations in Rural, Urban, and Suburban Communities, 1 Law & Policy Q. 382 (1979).Google Scholar

38 Gordon, supra note 8, at 62.Google Scholar

39 E.g., Ira Sharkansky & Richard I. Hofferbert, Dimensions of State Politics, Economics, and Public Policy, 63 Am. Pol. Sci. Rev. 867 (1969); Ira Sharkansky, The United States: A Study of a Developing Country (New York: David McKay Co., 1975).Google Scholar

In a widely cited work on modernization, C. E. Black wrote,Google Scholar

the definition of modernity takes the form of a set of characteristics believed to be generally applicable to all societies. This conception of modernity, when thought of as a model or ideal type, may be used as a yardstick with which to measure any society. The major phases of emphasis that confront societies in the process of modernization … may likewise be thought of as models or ideal types. Like modernity, they are uniformities based on the comparison of the experience of the relatively few advanced societies. In the fourth chapter all the societies in the world are compared in the light of these two models or ideal types–-modernity and the phases of modernization–-as a means of conveying an impression of the level of development of these societies at the present time.Google Scholar

C. E. Black, The Dynamics of Modernization: A Study in Comparative History 53–54 (New York: Harper & Row, 1966). While Black's scheme is not literally set out as a ladder, the basic idea is still there. He sees the process as a gradual series of adaptations leading to modernization and, in fact, says, “Analogies are a weak reed to lean on, especially in historical matters, but it may help to think in terms of the evolutionary process …. [of] infinitely small adaptations and combinations.”Id. at 60.Google Scholar

40 Chilcote, supra note 7, at 287.Google Scholar

41 Id. at 278.Google Scholar

42 E.g., Gabriel A. Almond & James S. Coleman, eds., The Politics of Developing Areas (Princeton, N.J.: Princeton University Press, 1960); Black, supra note 39; James S. Coleman, Modernization: Political Aspects in 10 David L. Shills, ed., International Encyclopedia of the Social Sciences (New York: Macmillan Co. & Free Press, 1968).Google Scholar

43 Also see Sharkansky & Hofferbert, supra note 39; Sharkansky, supra note 39.Google Scholar

Not all students of development subscribe to this linear approach, which puts tradition and modernity at opposite ends of a developmental continuum. Some, such as Gusfield, see this approach as a distortion of the wide range of alternative paths to development. Joseph R. Gusfield, Tradition and Modernity: Misplaced Polarities in the Study of Social Change, 72 Am. J. Soc. 351 (1966).Google Scholar

44 But see Shingles & Shoemaker, supra note 37.Google Scholar

45 E.g., Lawrence M. Friedman, On Legal Development, 24 Rutgers L. Rev. 11 (1969); id., Legal Culture and Social Development, 4 Law & Soc'y Rev. 29 (1969); id., supra note 10; id., supra note 3; Trubek, supra note 25.Google Scholar

Of such interpreters, Friedman seems to have been particularly influential. He has written extensively and often on the theme of law and social development and on the relevance of the grand theorists and the students of modernization. Perhaps his work is influential because he has been concerned directly with the question of causality in the relationship between legal and social development–-a concern that results from his perception of the way in which the relationship has been conceptualized.Google Scholar

He wrote in 1969: “Ignorance about the relationship between law and development is not solely a problem of law in third world countries. There is monumental ignorance, or misunderstanding, about law and development in our own and other modern countries. This reflects the ignorance, equally deep, about the relationship in general between the legal system and the social system.” Friedman, On Legal Development, supra, at 13.Google Scholar

Friedman noted that “the issue of cause and effect is usually evaded by most of the evolutionary theorists. Relatively few scholars have cared to commit themselves on the question.”Id. at 22. But he, too, seems rather evasive on the question: “The conclusion is sad but hard to avoid: The legal and economic systems are intertwined.”Id. at 57. In reading his empirical research, however, one infers that for him legal development is a function of socioeconomic development, and this is the way his work tends to be interpreted.Google Scholar

46 Chilcote, supra note 7, at 273. One of the more interesting of these thinkers is Lewis Henry Morgan. His 1877 book, Ancient Society, Or Researches in the Lines of Human Progress from Savagery Through Barbarism to Civilization, ed. Eleanor Burke Leacock (Gloucester, Mass.: Peter Smith, 1974), earned for him the accolade of “father of evolutionary anthropology.” See Eleanor Burke Leacock, Introduction, in id. at lii. In that book Morgan wrote: “Like the successive geological formations, the tribes of mankind may be arranged, according to their relative conditions, into successive strata. When thus arranged, they reveal with some degree of certainty the entire range of human progress from savagery to civilization.”Id. at 506–7. In his scheme there is a directionality to change, change that is gradual: “The latest investigations respecting the early condition of the human race are tending to the conclusion that mankind commenced their career at the bottom of the scale and worked their way up from savagery to civilization through the slow accumulations of experimental knowledge.”Id. at 3. And there is a sense of similarity in change: “Progress has been found to be substantially the same in kind in tribes and nations inhabiting different and even disconnected continents, while in the same status, with deviations from uniformity in particular instances produced by special causes.”Id. at 18.Google Scholar

47 But see Philippe Nonet & Philip Selznick, Law and Society in Transition: Toward Responsive Law (New York: Octagon Books, 1978); Unger, supra note 24.Google Scholar

Nonet and Selznick are quite explicit in the approach they propose: “A preoccupation with the varieties of legal experience, and with characteristic law-related variables, should provoke little objection. Once stated, it is a fairly evident scientific necessity. However, our second anaiytical strategy–-the application of a developmental perspective–-is more controversial and troublesome. We want to argue that repressive, autonomous, and responsive law are not only distinct types of law but, in some sense, stages of evolution in the relation of law to the political and social order.”Id. at 18.Google Scholar

48 Trubek, supra note 25, at 721.Google Scholar

49 Id. at 722.Google Scholar

50 Id. at 750.Google Scholar

51 Friedman, On Legal Development, supra note 44, at 18.Google Scholar

52 Max Rheinstein, ed., Max Weber on Law in Economy and Society 131 (New York: Clarion Books, 1967) (emphasis added).Google Scholar

53 Id. at 1 (emphasis added).Google Scholar

54 The exception is the work of some sociologists, such as Schwartz & Miller, supra note 28; Wimberley, supra note 28.Google Scholar

55 Emile Durkheim, The Division of Labor in Society, trans. George Simpson (New York: Free Press, 1964).Google Scholar

56 Id. at 37.Google Scholar

57 See Unger, supra note 24.Google Scholar

58 Durkheim, supra note 55, at 174.Google Scholar

59 Id. at 257.Google Scholar

60 Id. at 257–60.Google Scholar

61 Id. at 400.Google Scholar

62 Id. at 113.Google Scholar

63 Id. at 226.Google Scholar

64 E.g., Schwartz & Miller, supra note 28; Friedman, On Legal Development, supra note 44; id., supra note 10; but also see Gerald Turkel, Testing Durkheim: Some Theoretical Considerations, 13 Law & Soc'y Rev. 721 (1979).CrossRefGoogle Scholar

Turkel is highly critical of attempts to empirically test-to prove or refute-holistic theories such as Durkheim's. Such attempts are, he argues, questionable in conceptual and methodological terms as well as in their interpretation of Durkheim. Id. at 736–37. At best, tests of such theories can only be partial. Id. at 721. In dealing with social theories like Durkheim's, “the thrust of scientific criticism is not the refutation of theories by facts, but rather the competition of theories as alternative ‘research programmes’ that, on the one hand, must defend themselves from theoretical and empirical criticism and, on the other hand, must have a positive potential for generating new perspectives on existing evidence and yielding new facts.”Id, at 723.Google Scholar

65 Supra note 30, at 267.Google Scholar

66 Gould, supra note 20.Google Scholar

67 Though not directly within the caseload-related literature, perhaps the most conscious and explicit deductive use of this kind of broad social theory is the theoretical essay by Shingles & Shoemaker, supra note 37, dealing with legal culture and police behavior. They wrote: “The approach employed here is deductive, drawing on theory derived from research on legal systems across nations and over time within nations to an understanding of cross-sectional differences in legal systems within a single nation. Our application of this approach will concentrate on the role of the police in the United States.”Id. at 383.Google Scholar

68 But see Grossman & Sarat, supra note 19.Google Scholar

69 Lempert's critique of Friedman & Percival's two-county California study, supra note 30, is one of the few works to raise the issue. Even though Lempert was talking only of different levels of trial courts (Friedman & Percival dealt only with the highest level), the implication of his point is clear-different levels of courts may perform different functions and may follow different patterns of changes. Richard Lempert, More Tales of Two Courts: Exploring Changes in the “Dispute Settlement Function” of Trial Courts, 13 Law & Soc'y Rev. 91, 135 (1978).Google Scholar

70 Lempert's, id., point about the level of trial courts in regard to Friedman & Percival, supra note 30, would apply equally well to other studies (e.g., Grossman & Sarat, supra note 19; McIntosh, supra note 19; Wayne McIntosh, 150 Years of Litigation and Dispute Settlement: A Court Tale, 15 Law & Soc'y Rev. 823 (1980–81)), since the tendency in the current literature is to investigate only the highest levels of trial courts, ignoring the lower levels. Lempert, supra note 69, at 135 n.39, noted: “Studies of first-level courts might tell us more about the changing functional importance of courts as dispute settlers than studies of courts of limited jurisdiction. It will be the lower courts, if any, that hear of the petty grievances of everyday life. Unfortunately, lower court records are likely to be less complete than the records of higher tribunals.”Google Scholar

In stark contrast, the lower trial courts were of particular concern to caseload analysts of an earlier generation: e.g., Paul F. Douglass, The Justice of the Peace Courts of Hamilton County, Ohio (Baltimore: Johns Hopkins Press, 1933); H. K. Allen, Administration of Minor Justice in Selected Illinois Counties, 31 Ill. L. Rev. 1047 (1937); Charles E. Clark & Harry Shulman, A Study of Law Administration in Connecticut (New Haven, Conn.: Yale University Press, 1937). And only one published study–-Laurent's census of one county in Wisconsin–-attempts to deal with multiple levels of trial courts. Francis William Laurent, The Business of a Trial Court: 100 Years of Cases (Madison: University of Wisconsin Press, 1959). Unfortunately, his study is an almost impenetrable compilation of figures and tables nearly devoid of analysis.Google Scholar

71 Burton M. Atkins & Henry R. Glick, Environmental and Structural Variables as Determinants of Issues in State Courts of Last Resort, 20 Am. J. Pol. Sci. 97 (1976); Robert A. Kagan et al., The Business of State Supreme Courts, 1870–1970, 30 Stan. L. Rev. 121 (1977); Kagan et al., The Evolution of State Supreme Courts, 76 Mich. L. Rev. 961 (1978).Google Scholar

72 Thomas Y. Davies, Gresham's Law Revisted: Expedited Processing Techniques and the Allocation of Appellate Resources, 6 Just. Sys. J. 372 (1981); id., Affirmed: A Study of Criminal Appeals and Decision-making Norms in a California Court of Appeal, 1982 A.B.F. Res. J. 543.Google Scholar

73 Grossman & Sarat, supra note 19; Heydebrand, supra note 15; David L. Clark, Adjudication to Administration: A Statistical Analysis of Federal District Courts in the Twentieth Century, 55 S. Cal. L. Rev. 65 (1981).Google Scholar

74 Lawrence Baum, Sheldon Goldman, & Austin Sarat, Research Note: The Evolution of Litigation in the Federal Courts of Appeals, 1895–1975,16 Law & Soc'y Rev. 291 (1981–82); J. Woodford Howard, Jr., Litigation Flow in Three United States Courts of Appeals, 8 Law & Soc'y Rev. 33 (1973); id., The Court of Appeal in the Federal Judicial System: A Study of the Second, Fifth, and District of Columbia Circuits (Princeton, N.J.: Princeton University Press, 1981).Google Scholar

75 Gerhard Casper & Richard A. Posner, A Study of the Supreme Court's Caseload, 3 J. Legal Stud. 339 (1974); William P. McLauchlan, An Exploratory Analysis of the Supreme Court's Caseload from 1880–1976, 64 Judicature 32 (1980).Google Scholar

76 Robert M. Ireland, The County Courts in Antebellum Kentucky (Lexington: University Press of Kentucky, 1972); John R. Wunder, Inferior Courts, Superior Justice: A History of the Justices of the Peace on the Northwest Frontier, 1853–1889 (Westport, Conn.: Greenwood Press, 1979); Theodore Brown, Jr., The Tennessee County Courts Under the North Carolina and Territorial Governments: The Davidson County Court of Pleas and Quarter Sessions, 1783–1796, 32 Vand. L. Rev. 249 (1979); Cornelia Anne Clark, Justice on the Tennessee Frontier: The Williamson County Circuit Court 1810–1820, 32 Vand. L. Rev. 413 (1979).Google Scholar

77 Milton Heumann, A Note on Plea Bargaining and Case Pressure, 9 Law & Soc'y Rev. 515 (1975); id., Plea Bargaining: The Experiences of Prosecutors, Judges, and Defense Attorneys (Chicago: University of Chicago Press, 1978). Lawrence M. Friedman, Plea Bargaining in Historical Perspective, 13 Law & Soc'y Rev. 247 (1979).Google Scholar

78 Douglas Greenberg, Crime, Law Enforcement, and Social Control in Colonial America, 26 Am. J. Legal Hist. 293 (1982); also see J. Conley, Criminal Justice History as a Field of Research: A Review of the Literature, 1960–1975, 5 J. Crim. Just. 13 (1977); Samuel Walker, Popular Justice: A History of American Criminal Justice (New York: Oxford University Press, 1980).Google Scholar

79 But see Bliss Cartwright, Conclusion: Disputes and Reported Cases, 9 Law & Soc'y Rev. 369 (1975). As anyone who has tried to collect data on state court activities over long periods of time can attest, the practical problems are enormous and the researcher must make many compromises with practicality to accomplish anything. Cartwright is unique in his candor in explaining the inevitable balancing of theoretical and practical factors in a major study of this type.Google Scholar

80 Intervals have varied from every 5 years (Kagan et al., supra note 71; Stephen Daniels, The Civil Business of State Trial Courts: A Rural-Urban Comparison, 1870–1960 (paper delivered at 1982 Law and Society Association Meeting, Toronto)) to every 20 years (Friedman & Percival, supra note 30). while one older study (Laurent, supra note 70) and one recent study (McIntosh, supra note 19) used data from every year. Time periods have varied widely from 70 to 150 years, though most tend to cluster around a century or so. Kagan et al., Business, supra note 71, at 124, e.g., chose the 100 years beginning in 1870 because they decided these years “would provide us with a sufficient range of social and economic change.” Laurent, supra note 68, at vii, started with 1855 (to 1954) because it marked the year the circuit court–-his primary interest–-was founded in his county. Friedman & Percival, supra note 30, at 272, started with 1890 “partly because it was the first census year after the court reform that established the system of Superior Courts.” In my own research on Illinois trial courts, I chose the period 1870 to 1970 because it approximates the life of the third Illinois Constitution.Google Scholar

81 Daniels, supra note 19.Google Scholar

82 Craig Wanner, The Public Ordering of Private Relations: Part One: Initiating Civil Cases in Urban Trial Courts, 9 Law & Soc'y Rev. 421 (1974) (hereinafter cited as Part One); id., The Public Ordering of Private Relations: Part Two: State and Federal Courts 1870–1940,9 Law & Soc'y Rev. 293 (1975) (hereinafter cited as Part Two); Grossman et al., supra note 19.Google Scholar

83 Atkins & Glick, supra note 69.Google Scholar

84 Heydebrand, supra note 15.Google Scholar

85 See sources by Howard, cited supra note 74.Google Scholar

86 Laurent, supra note 70; Friedman, supra note 77; McIntosh, supra note 70; Stephen Daniels, The Trial Courts of “Spoon River”: Patterns and Changes, 1870–1963 (paper delivered at 1981 Law and Society Association Meeting, Amherst, Mass.); Friedman & Percival, supra note 30.Google Scholar

87 See Davies, supra note 72.Google Scholar

88 Friedman & Percival, supra note 30; Daniels, supra note 80; Frank Munger, The Functions of Law and Civil Litigation Rates: Theories, Critique and Tests of Hypotheses (paper delivered at 1983 Law and Society Association Meeting, Denver); id., Commercial Litigation in West Virginia: State and Federal Courts 1870–1940 (paper delivered at 1983 Social Science History Association Meeting, Washington, D.C.); John Alan Stookey, A Social Theory of Law and the Evolution of State Trial Courts (proposal submitted to Law and Social Sciences Program, National Science Foundation, 1983).Google Scholar

89 Grossman & Sarat, supra note 19.Google Scholar

90 Baum et al., supra note 74.Google Scholar

91 See sources by Kagan et al., cited supra note 71.Google Scholar

92 Robert A. Kagan & Terri Jennings, The Routinkation of Debt Collection: An Essay on Models of Social Change and Conflict in the Courts (paper delivered at 1983 Law and Society Association Meeting, Denver), sought to compare certain aspects of the changing mix of state supreme court business with possible changes in mix at the trial level. Their particular interest was trying to match the decline of debt cases at the supreme court level with what may have occurred at the trial level.Google Scholar

93 See Krislov, supra note 14.Google Scholar

94 Grossman & Sarat began their inquiry with what they “believed were a set of well established hypotheses,”supra note 19, at 342, that either socioeconomic factors would explain variations in litigation rates in the federal courts or that alternatively differences in political culture would. But in the end their analysis led them to conclude that “few of our expectations were confirmed,”id. at 342.Google Scholar

95 The differences in the courts studied alone may be a bar to any kind of close comparison. While admittedly all are “courts,” they are by no means similar. Jurisdictional differences may make some direct comparisons for similarities pointless, such as comparing state and federal trial courts or even different levels of courts in parallel jurisdictions. Even comparing trial courts across states for similarities can be hazardous, given the rather idiosyncratic ways many states structure their trial courts and their jurisdictions, and such comparisons over time can also be hazardous because of the timing and nature of development in different states.Google Scholar

96 Supra note 30.Google Scholar

97 With the very wide sampling interval used in this study, perhaps it is not surprising that no neat patterns were found. And one wonders what effects this sampling scheme may have had on the findings and on Friedman & Percival's interpretations. How different would the findings and interpretations be if the interval had been cut in half to 10 years? See Lempert, supra note 69, at 122 and passim. Google Scholar

98 Supra note 70.Google Scholar

99 Supra note 19.Google Scholar

100 Id. at 1005.Google Scholar

101 Under the 1870 Illinois Constitution each of the four counties involved in the study had three levels of trial courts: justice of the peace, county (and probate), and circuit. Here I looked at the two higher levels-county and circuit. I do have scattered data for three of the four counties on the justice of the peace courts, but not enough to include in a general, four-county comparison. Daniels, supra note 80.Google Scholar

102 Id. at 15, 28.Google Scholar

103 Supra note 19.Google Scholar

104 Id. at 343.Google Scholar

105 Laurent's book, supra note 70, is unique; while one sees it cited with increasing frequency, only rarely is it cited for something specific in it. E.g., while we are likely to see specific citations, say, to Friedman & Percival, supra note 30, at 280: “In both counties the percentage of family and tort cases filed rose dramatically from 1890 to 1970,” we are unlikely to see a similar reference to Laurent, supra note 70, at 161 table 84, with figures showing that the number of divorce and tort actions increased in Chippewa County, though not in a strictly linear fashion. The reason researchers tend to ignore the specifics of Laurent's book is, unfortunately, the book itself. It is literally a census of cases–-an enumeration of all cases in the circuit court for 100 years along with a sample of cases from the circuit court branch of the county court. There are about 76 pages (at 3–79) describing the enumeration, but there is virtually no systematic analysis. This is followed by about 200 pages (at 83–282) of tables–-206 tables–-of data. Few have been willing to wade through this enormous and bewildering array of data (but see Kagan and Jennings, supra note 92; Galanter, supra note 1, for specifics). This is unfortunate, for Lament's book presents a gold mine of data just waiting to be systematically exploited.Google Scholar

106 I have collected but not yet reported criminal docket data to match civil data collected for Menard County, Illinois, for 1870–1960. Daniels, supra note 86. Samples were drawn at 5-year intervals for the county court (the inferior court) and for the circuit court (the highest trial court). For both levels, the criminal caseload was far smaller than the civil and the number and rate of civil matters were higher than those for criminal matters for every sample year. For the county court, there were 2,188 civil matters and only 245 criminal matters; for the circuit court, there were 1,693 civil matters and only 283 criminal matters.Google Scholar

107 Heumann, supra note 77; Friedman, supra note 77.Google Scholar

108 Supra note 32.Google Scholar

109 See sources cited supra note 75.Google Scholar

110 Kagan et al., The Business of State Supreme Courts, supra note 71.Google Scholar

111 See also Davies, Affirmed, supra note 72, 568–73.Google Scholar

112 But see McIntosh, supra note 19.Google Scholar

113 E.g., Gerhard Casper & Richard A. Posner, The Workload of the Supreme Court (Chicago: American Bar Foundation, 1976); Daniels, supra note 80; David M. Engel, Cases, Conflict, and Accommodation: Patterns of Legal Interaction in an American Community, 1983 A.B.F. Res. J. 803.Google Scholar

114 Casper & Posner, supra note 113, at 8.Google Scholar

115 Lawrence M. Friedman & Jack Ladinsky, Social Change and the Law of Industrial Accidents, 67 Colum. L. Rev. 50 (1967).Google Scholar

116 Laurent, supra note 70; Friedman & Percival, supra note 30; Lempert, supra note 69; McIntosh, supra note 70; Daniels, supra note 80.Google Scholar

117 Daniels, supra note 80.Google Scholar

118 Walter F. Dodd & Sue Hutchison Dodd, Government in Illinois 198–99 (Chicago: University of Chicago Press, 1923).Google Scholar

119 Laurent, supra note 70, at 116 table 38.Google Scholar

120 Supra note 32.Google Scholar

121 Supra note 32.Google Scholar

122 Both studies detect the shift away from morality and toward property, but Hindus, supra note 32, at 67, believes Nelson's, supra note 32, interpretation to be an oversimplification. He said, “There was a gradual shift from crime as sin to crime as theft, but it was quite different from that described by Nelson. First, the shift took two centuries, not a few decades. Second, it was related in part to evolving concerns in the legal system, but also to shifting patterns in behavior and society. Sexual behavior changed, as did the conditions that gave rise to crimes against property.”Id. at 69. Nelson seems to have looked more within the law itself for the mechanism for the shift as opposed to Hindus's more strictly environmental mechanism.Google Scholar

123 The Business of State Supreme Courts, supra note 71. Curiously, we know almost nothing about shifts in overall proportions of civil vs. criminal matters in state trial courts. My own preliminary analysis of data from two Illinois counties suggests a steady or declining proportion of criminal cases during this century.Google Scholar

124 Supra note 71.Google Scholar

125 Supra note 74.Google Scholar

126 Again, my awn preliminary data from Illinios suggests that the supreme court and trial courts did not necessarily share the same shifts but may have well shared some if the vagaries of jurisdiction are taken into account.Google Scholar

127 Davies, Affirmed, supra note 72, 557–69.Google Scholar

128 Friedman & Percival, supra note 30, at 268–71.Google Scholar

129 See Lempert, supra note 69; Krislov, supra note 14.Google Scholar

130 E.g., Richard L. Abel, A Comparative Theory of Dispute Institutions in Society, 8 Law & Soc'y Rev. 217 (1974).CrossRefGoogle Scholar

131 This perspective has pervaded much of mainline political science, sociology, and anthropology. According to Robert K. Merton, Social Theory and Social Structure 79 (1968 enlarged ed. New York: Free Press, 1968), it can be reduced to three basic postulates: “first, that standardized social activities or cultural items are functional for the entire social or cultural system [the functional unity of society]; second, that all such social and cultural items fulfill sociological functions [universal functionalism]; and third, that these items are consequently indispensable [indispensability].”Google Scholar

132 Krislov, supra note 14, at 163–66, distinguished between two approaches to courts: nominalist (courts are what courts do) and essentialist (there is some basic “core idea” that defines court). Krislov himself, adopting modified essentialism (the “coward's way out,”id. at 165–66), is attracted to Martin Shapiro's outline of an essentialist position, the core idea being the mediation of disputes. In Shapiro's approach:Google Scholar

The root concept employed here is a simple one of conflict and its structuring into triads. Cutting quite across cultural lines, it appears that where two persons come into a conflict that they cannot resolve themselves, one solution appealing to common sense is to call upon a thud for assistance in achieving a resolution. So universal across both time and space is this simple social invention of triads that we can discover almost no society that fails to employ it. And from its overwhelming appeal to common sense stems the basic political legitimacy of courts everywhere. In short, the triad for purposes of resolution is the basic social logic of courts, a logic so compelling that courts become a universal political phenomenon.Google Scholar

Martin Shapiro, Courts, in 5 Fred I. Greenstein & Nelson W. Polsby, eds., Handbook of Political Science 322 (Reading, Mass.: Addison-Wesley Publishing Co., 1975).Google Scholar

Somewhat closer to home, and less universalistic, Shapiro describes the prototypical or ideal typical idea of courts employed by political scientists, which seems based on the same core idea: “(1) an independent judge (2) applying preexisting legal norms (3) after adversary proceedings in order to achieve (4) a dichotomous decision in which one of the parties was assigned the legal right and the other found wrong.”Id. at 321.Google Scholar

133 Lempert's, supra note 69, critique was actually a careful and detailed reanalysis of Friedman & Percival's, supra note 30, data, his purpose being to challenge their conclusions about the diminution of the dispute resolution function of trial courts. Lempert centered his critique, first, on the ambiguous use of the concept function in Friedman & Percival. He asserted that they seemed to cross back and forth between an essentialist (the purpose of courts for the society) and a nominalist (what courts do) position. According to Lempert, “when Friedman and Percival propose to investigate how the functions of trial courts have changed over time, they have set themselves an ambiguous task. Some of their language suggests … that they are concerned primarily with the way in which trial courts serve the larger society…. At other places Friedman and Percival say that what they attempted was 'to measure how the work of these courts changed over time.” Lempert, supra, at 92–93. Second, Lempert was concerned with their approach to measurement; Friedman & Percival relied heavily on changing percentages over time rather than on rates, with reliance on the former being very misleading. Id. at 93–97. And third, Lempert was concerned with the indicators Friedman & Percival used for dispute resolution activity. Basically, they relied on information that could be taken from court records–-whether there were contested trials, etc.–-while Lempert stressed less formal and generally unrecorded contributions to dispute resolution. Id. at 97–100.Google Scholar

134 Supra note 30; also see Heydebrand, supra note 15; Clark, supra note 73.Google Scholar

135 I am not suggesting that the dispute resolution perspective be dropped in general, only that it may not be very helpful in caseload studies tracing and trying to explain patterns and changes over time. Indeed, it may even be a hindrance–-especially in the exploratory stages of such an inquiry. It may distort our view of courts. The idea that dispute resolution is the function of courts is a conceptual argument, not an empirical fact. Historically, a number of quite intended functions for trial courts–-especially the inferior ones–-had little to do with dispute resolution but were explicitly administrative or even legislative (e.g., Dodd & Dodd, supra note 118, at 199; Ireland, supra note 76; Wunder, supra note 16; Brown, supra note 76, at 361–66). The strict application of a dispute resolution perspective may lead researchers to leave out of their studies those aspects of activity not explicitly involving dispute resolution (e.g., Grossman et al., supra note 19, at 94, excluded cases that were “demonstrably non-adversarial”). There is an additional potential distortion. When empirical research suggests that perhaps courts may not be or have not been particularly involved directly in dispute resolution but are acting more like quasi-administrative agencies (as Friedman & Percival suggest), the hue and cry goes up. Even if trial courts do not hear many contested trials and so on, we must look elsewhere for their contribution to dispute resolution, for the perspective tells us it is there. It is, after all, the very essence of the idea of “court.” At the extreme, this could lead to the panglossian notion that somehow almost everything courts do (regardless of what it might be) can be interpreted as a contribution to dispute resolution. This may explain, in part, Lempert's rather pointed critique of Friedman & Percival and their argument about trial courts' decreasing contribution to dispute resolution. Lempert, supra note 69, at 97–100. Much of the critique was a search for the dispute resolution activities of the courts in question, Friedman & Percival's interpreted findings to the contrary notwithstanding. Lempert presents a list of seven ways courts can contribute to dispute resolution and then notes: “With courts able to contribute to dispute settlement in so many ways–-and this list is not necessarily exhaustive–-it is dangerous to generalize about changes in the dispute settlement function of courts over time.”Id. at 99–100. It is also dangerous to make such sweeping claims about the dispute settlement function of courts. To suggest that almost everything trial courts do somehow contributes to dispute resolution borders on the tautological.Google Scholar

136 The Illinois Crime Survey (Chicago: Illinois Association for Criminal Justice in cooperation with Chicago Crime Commission, 1929).Google Scholar

137 See special issue of Law and Society Review edited by Malcolm M. Feeley, on Plea Bargaining, 13 Law & Soc'y Rev. (1979); John H. Langbein, Torture and Plea Bargaining, 58 Pub. Interest 43 (1980); Malcolm M. Feeley, Plea Bargaining and the Structure of the Criminal Process, 7 Just. Sys. J. 338 (1982);Google Scholar

138 E.g., Albert W. Alschuler, Plea Bargaining and Its History, 13 Law & Soc'y Rev. 211 (1979); Malcolm M. Feeley, Perspectives on Plea Bargaining, 13 Law & Soc'y Rev. 199 (1979); Feeley, supra note 137. In his essay Alschuler remarked:Google Scholar

As an opponent of plea bargaining, I have been offended by … rhetorical historical pronouncements [that plea bargaining is endemic to the system and always has been] and perhaps even more offended by the seemingly knowledgeable, but equally unsupported, assertions of scholars that plea bargaining “apparently originated in 17th century England as a means of mitigating unduly harsh punishment”…. The defenders of plea bargaining have seemed to rely on a sense of what “must have been” in making historical judgments, but today's method of resolving criminal cases is not, from my perspective, a matter of doing what comes naturally.Google Scholar

Alschuler, supra, at 212–13.Google Scholar

139 See sources by Heumann, cited supra note 77; Friedman, supra note 77.Google Scholar

140 See Friedman & Percival, supra note 30; McIntosh, supra note 70; Daniels, supra note 86.Google Scholar

141 E.g., Wanner, supra note 82; James S. Eisenstein & Herbert Jacob, Felony Justice: An Organizational Analysis of Criminal Courts (Boston: Little, Brown & Co., 1977); Marcia J. Lipetz, Routine Justice: Processing Cases in Women's Court (New Brunswick, N.J.: Transaction Books, 1984); David M. Trubek et al., Civil Litigation Research Project Final Report (Madison: University of Wisconsin Law School, 1983).Google Scholar

142 E.g., Heumann, A Note, supra note 77, at 520; Friedman, supra note 77, at 257.Google Scholar

143 The Limits of the Criminal Sanction (Stanford, Cal.: Stanford University Press, 1968).Google Scholar

144 Stephen Daniels & Robert Hayden, Is There a “Master Pattern” for Civil and Criminal Dispositions? An Experiment with Two Rural Counties, 1870–1960” (unpublished paper, American Bar Foundation, Chicago, 1984).Google Scholar

145 Evolution, supra note 71.Google Scholar

146 Id. at 1000. Note, however, that Davies, Gresham's Law Revisited, supra note 72, suggests that this change in state supreme court disposition style may cause intermediate appellate courts to routinize their processing of some types of cases, especially criminal cases.Google Scholar

147 Id. at 962.Google Scholar

148 Wayne McIntosh, A Long-Range View of Litigators and Their Demands (paper delivered at 1982 American Political Science Association Meeting, Denver).Google Scholar

149 See Friedman & Percival, supra note 30.Google Scholar

In Roots of Justice, Friedman & Percival, supra note 32, at 103–13, discuss in some detail the types of people brought into the system.Google Scholar

150 E.g., Wanner, supra note 82.Google Scholar

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

152 Id.; Marc Galanter, Afterword: Explaining Litigation, 9 Law & Soc'y Rev. 347 (1975).CrossRefGoogle Scholar

153 E.g., sources by Wanner, cited supra note 82; those discussed in Galanter, supra note 152.Google Scholar

154 See Barbara Yngvesson & Patricia Hennessey, Small Claims, Complex Disputes: A Review of the Small Claims Literature, 9 Law & Soc'y Rev. 219 (1975). In fact, Wanner, Part Two, supra note 82, at 306, found a system so pervasive in terms of patterns of usage and victory that he characterized civil litigation in the three cities he studied–-Baltimore, Cleveland, and Milwaukee–-as “an extractive process in which plaintiffs, and plaintiff organizations in particular, usually win and individuals generally lose. On the whole, courts are vehicles by which organizational plaintiffs gain goods and opportunities at the expense of individual defendants.”Google Scholar

155 Supra note 1, at 24.Google Scholar

156 Supra note 148.Google Scholar

157 The richer but somewhat less systematic analyses of historians further complicate what little we know. Laurent, supra note 70, at 53–59, found, as did McIntosh, supra note 148, that the typical civil case was individual versus individual. In his study of civil litigation in Boston for a rather short period (1880 to 1900), Silverman found that while the typical plaintiff was an individual, over time there was a shift toward a higher percentage of organizational defendants. Robert A. Silverman, Law and Urban Growth: Civil Litigation in the Boston Trial Courts, 1880–1900, at 17–23 (Princeton, N.J.: Princeton University Press, 1981). None of the more systematic studies covering longer periods can match Silverman's richness of detail on parties. He looked at different levels of trial courts but unfortunately did not always show the breakdowns among them. He took names from dockets and searched through manuscript census schedules for information on litigants. Id., appendix A, at 151–56.Google Scholar

158 See Kagan et al., The Business of State Supreme Courts, supra note 71.Google Scholar

159 Supra note 14, at 162.Google Scholar

160 Supra note 15, at 145. Also see Gould, supra note 15: Gordon, supra note 8.Google Scholar

161 Krislov, supra note 14.Google Scholar

162 Id. at 161.Google Scholar

163 Id. at 162.Google Scholar

164 Id. Google Scholar

165 Stephen Jay Gould, Is a New and General Theory of Evolution Emerging?in John Maynard Smith, ed., Evolution Now: A Century After Darwin 132 (New York: Nature/Macmillan Co., 1982).Google Scholar

166 For a radically different view of macroevolution see Paul Diener, Quantum Adjustment, Macro-evolution, and the Social Field: Some Comments on Evolution and Culture, 21 Current Anthropology 423, 427–29 (1980). Diener's approach is strictly based on a model of biological evolution.CrossRefGoogle Scholar

167 Gould, supra note 27, at 56–62.Google Scholar

168 Gould, supra note 15; id., supra note 165.Google Scholar

169 Perhaps there is something to be learned from the attitude of evolutionary biologists toward the task of explaining change scientifically. Ernst Mayr said in Animal Species and Evolution (Cambridge: Harvard University Press, Belknap Press, 1965): “Comparing two such different fields as, let us say, the evolutionary biology of species and enzyme chemistry brings home the enormous contrasts within science. In chemistry we deal with repeatable unit phenomena and with actions that, once correctly described, are known forever. In evolutionary biology we deal with unique phenomena, with intricate interactions and with balances of selection pressures–-in short, with phenomena of such complexity that an exhaustive description is beyond our power. We can approach the truth only by a trial-and-error process of increasing accuracy (at vi).”Google Scholar

At this point, the study of court activities over time is much closer to Mayr's characterization of evolutionary biology than it is to the study of enzyme chemistry.Google Scholar

170 Gould's primary target has been Neo-Darwinism or the modern synthetic theory of biological evolution. In a 1980 article Gould, supra note 15, at 42, summarized this theory: “AS Ernst Mayr, a major architect of the modern synthesis, put it, ‘the proponents of the synthetic theory maintain that all evolution is due to the accumulation of small genetic changes, guided by natural selection, and that transspecific evolution [across species] is nothing but an extrapolation and magnification of the events that take place within populations and species.”’ Gould, supra note 15, at 42.Google Scholar

171 See Gould, supra note 27; id., supra note 15; Gould & Eldredge, supra note 15; also see Gordon, supra note 8.Google Scholar

172 Stephen Jay Gould, Hen's Teeth and Horse's Toes: Further Reflections in Natural History 159 (New York: W. W. Norton & Co., 1983); also see Gordon, supra note 8.Google Scholar

173 Gould, supra note 165, at 138.Google Scholar

174 See id.; Heydebrand, supra note 15, at 772.Google Scholar

175 Also see Wright, supra note 15, at 9–29.Google Scholar

176 Gould, supra note 15, at 46.CrossRefGoogle Scholar

177 Motoo Kimura, The Neutral Theory of Molecular Evolution (New York: Cambridge University Press, 1983).Google Scholar

178 Wright, supra note 15, at 15–26, presents a similar approach to change as being what is possible given certain constraints and as being channeled by those constraints. Wright's interest was in devising a model for social scientific analysis that was consistent with his view of Marxism. Gould's ideas are less obviously ideological, but one would find throughout much of his writing a viewpoint that is probably not unsympathetic with Wright's interests and ideological stance.Google Scholar

179 Supra note 15.Google Scholar

180 P. G. Williamson, Morphological Status and Developmental Constraint: Real Problems for Neo-Darwinism, in Smith, supra note 165.Google Scholar

181 Stephen Jay Gould, The Meaning of Punctuated Equilibrium and Its Role in Validating a Hierarchical Approach to Macroevolution, in Roger Milkman, ed., Perspectives on Evolution 85 (Sunderland, Mass.: Sinauer Associates, 1982).Google Scholar

182 E.g., Diener, supra note 166.Google Scholar

183 Even though Gould attacks our common notions about change in most fields of intellectual endeavor, I make no claim that he would agree with my use of his ideas and critique or that he intends them to be used in this way.Google Scholar

184 In a related vein Kaplan has said: “No two things in the world are wholly alike, so that every analogy, however close, can be pushed too far; on the other hand, no two things are wholly dissimilar, so that there is always an analogy to be drawn, if we choose to do so. The question to be considered in every case is whether or not there is something else to be learned from the analogy if we choose to draw it.” Kaplan, supra note 7, at 266.Google Scholar

185 Perhaps this may help explain why Kagan et al., Evolution. supra note 71, at 962, found such divergent patterns even among demographically similar states–-only a “rough pattern of evolution.”Google Scholar

186 Lawrence M. Friedman, Trial Courts and Their Work in the Modern World, 4 Jahrbuch für Rechtssoziologie & Rechtstheorre 25, 25 (1976).Google Scholar

187 Id. Google Scholar

188 Id. Google Scholar

189 Id. at 25–27.Google Scholar

190 1%. Id. at 26.Google Scholar

191 E.g., Shapiro, supra note 132; Krislov, supra note 14.Google Scholar

192 E.g., Grossman et al., supra note 19.Google Scholar

193 Austin Sarat, The Role of Courts and the Logic of Court Reform: Notes on the Justice Department's Approach to Improving Justice, 64 Judicature 300, 301 (1981).Google Scholar

194 Supra note 70.Google Scholar

195 James Willard Hurst, Introduction, in Laurent, supra note 70, at xxxii.Google Scholar

196 E.g., we are limited to what the available records say, “though in fact one suit will have involved larger interests than another … some will have taken much more time of counsel and court, and some will have tested professional competence in much different degree.” Hurst, supra note 195, at xix. Undoubtedly, a weighting system could be devised, but we now know far too little to design an acceptable one.Google Scholar

197 This is what Lawrence Friedman has reportedly called “anthropological agnosticism.” Krislov, supra note 14, at 164.Google Scholar

198 Id. at 163–64.Google Scholar

199 Supra note 2, at 401.Google Scholar

200 This is an area ready for a bold set of “reforms”–-a “problem” so ill understood that it invites a panacea doomed to failure from the start. In his evaluation of failed court reforms, Feeley found: “Often, failure is rooted in conception, in a fundamental misunderstanding of the nature of the problem, the dynamics of the system, the nature of the change process, and attention to detail at the service delivery level.” Feeley. supra note 17, at 205. In a similar vein, a recent article, Debunking Litigation Magic, Newsweek, Nov. 21, 1983, at 98, 98F–-highlighted by an interview with Marc Galanter–-ended: “At the very least, then, more research and better record keeping are in order. In the meantime, it is important not to fall victim to an … American characteristic: impatience. Jumping to conclusions is bad enough; leaping to solutions is worse.”Google Scholar

201 P. B. Medawar, Pluto's Republic 298 (New York: Oxford University Press, 1982).Google Scholar