¹ Banfield, Edward and Wilson, James Q., City Politics (New York: Vintage, 1963), p. 7 Google Scholar.

² This kind of concern is reflected in most studies of the decision-making processes of political institutions. For one of the best of these studies see Bauer, Raymond et al., American Business and Public Policy (New York: Atherton, 1963)Google Scholar.

³ See Jacob, Herbert, Justice in America, 2nd ed. (Boston: Little, Brown, 1972)Google Scholar.

⁴ This term is used by Donald Black to describe one aspect of the legal process, specifically the dependence of some institutions on citizen initiated complaints. See “The Mobilization of Law,” Journal of Legal Studies, 2 (01, 1973), 128 Google Scholar.

⁵ Mobilization refers to the process through which adjudicative institutions become involved in the definition, interpretation and management of conflict. Litigation refers exclusively to the mobilization of courts.

⁶ A particularly interesting description of the mix of adjudicative and nonadjudicative functions in a single political institution is provided by Nonet, Philippe, Administrative Justice (New York: Russell Sage Foundation, 1969)Google Scholar.

⁷ For a comparison of courts, legislatures and executives see Dolbeare, Kenneth, Trial Courts in Urban Politics (New York: Wiley, 1967), p. 117 Google Scholar.

⁸ We realize that courts do more than just settle disputes or resolve conflict. As Friedman argues, the most time-consuming activity of trial courts may involve record keeping and other administrative functions. See Friedman, Lawrence, “Functions of Trial Courts in the Modern World” (presented at a Conference on Sociology of Judicial Process, University of Bielefeld, German Federal Republic, 1973)Google Scholar.

⁹ See Shapiro, Martin, “From Public Law to Public Policy, or the ‘Public’ in Public Law,” PS, 5 (Fall, 1972), 410–418 CrossRefGoogle Scholar.

¹⁰ The similarities and differences among courts and other dispute-settling institutions have recently been the subject of an extensive treatment by Abel, Richard, “A Comparative Theory of Dispute Institutions in Society,” Law and Society Review, 8 (Winter, 1974), 217–347 CrossRefGoogle Scholar.

¹¹ For a discussion of these distinctions see Lon Fuller, “The Forms and Limits of Adjudication” (unpublished essay, n.d.).

¹² Richardson, Richard and Vines, Kenneth, The Politics of the Federal Courts (Boston. Little, Brown, 1970)Google Scholar, and J. Woodford Howard, “Litigation Flow in the U.S. Courts of Appeals for the D.C., 2nd and 5th Circuits” (paper delivered at the 1971 annual meeting of the American Political Science Association).

¹³ Gulliver, P. H., “Negotiations as a Mode of Dispute Settlement: Towards a General Model,” Law and Society Review, 7 (Summer, 1973), 667–692 CrossRefGoogle Scholar.

¹⁴ Ibid.

¹⁵ Felstiner, William L. F., “Influences of Social Organization on Dispute Processing,” Law and Society Review, 9 (Fall, 1974), 63–94 CrossRefGoogle Scholar.

¹⁶ We recognize that many “potential” disputes are either suppressed by the individual feeling aggrieved or are displaced onto others not directly involved. This self-suppression or displacement is often practiced by people who fear being labeled as troublemakers. It is exemplified when people complain about family life while at work and about work life while at home but never make their feelings known in the appropriate setting.

¹⁷ A study of consumer disputes in Philadelphia reports that most consumers first try to settle disputes with businessmen by negotiating directly with the retailer. Only when and if that fails do they seelc other remedies. See Steadman, John and Rosenstein, Richard, “Small Claims Consumer Plaintiffs in the Philadelphia Municipal Court,” University of Pennsylvania Law Review, 121 (06, 1973), 1331 CrossRefGoogle Scholar.

¹⁸ See Eckhoff, Torstein, “The Mediator and the Judge,” in Sociology of Law, ed. Aubert, Vilhelm (Baltimore: Penguin, 1969)Google Scholar.

¹⁹ For a description of this phenomenon as it applies to organized crime in the United States, see Cressey, Donald R., Theft of a Nation: The Structure and Operations of Organized Crime in America (New York: Harper & Row, 1969), chapters 8 and 9Google Scholar.

²⁰ “Roman Catholic Ecclesiastical Courts and the Law of Marriage,” Columbia Journal of Law and Social Problems, 7 (Spring, 1971), 230 Google Scholar.

²¹ Coulson, Robert, “Family Arbitration—An Exercise in Sensitivity,” Family Law Quarterly, 3 (03, 1969), 22 Google Scholar.

²² Cameron, Mary, The Booster and the Snitch (New York: Free Press, 1964), p. 121 Google Scholar. See also Macaulay, Stewart, Law and the Balance of Power (New York: Russell Sage Foundation, 1966), p. 153 Google Scholar, and “Non-Contractual Relations in Business: A Preliminary Study,” American Sociological Review, 28 (02, 1963), 55–67 CrossRefGoogle Scholar.

²³ MacCallum, Spencer, “Dispute Resolution in an American Supermarket,” in Law and Warfare, ed. Bohannon, Paul (Garden City, New York: Natural History Press, 1967), pp. 293–294 Google Scholar.

²⁴ Henderson, Don, “Law and Political Modernization in Japan,” in Political Development in Modern Japan, ed. Ward, Robert (Princeton: Princeton Universiy Press, 1969), p. 449 Google Scholar.

²⁵ See Kawashima, T., “Dispute Resolution in Contemporary Japan,” in Law in Japan, ed. Mehren, Arthur Von (Cambridge: Harvard University Press, 1963)Google Scholar; and Henderson, p. 448.

²⁶ Hahm, Pyong-Choon, “The Decision-Process in Korea,” in Comparative Judicial Behavior, ed. Schubert, Glendon and Danelski, David (New York: Oxford University Press, 1969), p. 36 Google Scholar.

²⁷ Pospisil, Leopold, Kapauka Papauns and Their Law (New Haven: Yale University Publications in Anthropology, 1958), pp. 254–255 and passim Google Scholar.

²⁸ The importance of community allegiance and group norms in facilitating acceptance of judgments, a common observation throughout this literature, seems analogous to the findings of political scientists about the importance of community and peer-group pressures in determining individual attitudes toward acceptance of Supreme Court decisions specifically and toward legal compliance generally.

²⁹ In our discussion we take the presence of trouble or conflict as a starting point. We realize, however, that the willingness of people to engage in conflict or acknowledge trouble is itself a variable. Where people are reluctant to declare trouble, they may continue in a relationship in which one or both members perceive that something is wrong without communicating this perception to the other party or to any third party. They may, however, allow the tension built up in such situations to be released in other relationships.

³⁰ See Bayley, David H. and Mendelsohn, Harold, Minorities and the Police (New York: Free Press, 1968)Google Scholar, and Reasons, Charles E. and Kuykendall, Jack L., eds., Race, Crime and Justice (Pacific Palisades, California: Goodyear, 1972)Google Scholar. See also Claghorn, Kate, The Immigrants' Day in Court (New York: Arno Press, 1969), p. 147 Google Scholar. Suspicion of the motives or values of public dispute settlers, so characteristic of ghetto dwellers today, was a widespread phenomenon among immigrant groups in the early part of the 20th century. In addition to avoiding contact with feared outsiders, people may feel more comfortable being judged by “their own kind,” by someone perceived as closer to their own life style and values.

³¹ Skolnick, Jerome, Justice Without Trial (New York: Wiley, 1966), pp. 6–9 Google Scholar.

³² Wilson, James Q., Varieties of Police Behavior (Cambridge: Harvard University Press, 1968), p. 21 Google Scholar.

³³ Ibid., chapter 4 and passim. Wilson notes the variety of factors which enter into a policeman's discretionary decision as to how and whether to enforce the law to the letter.

³⁴ In Re Gault, 387 U.S. 1 (1967).

³⁵ Cole, George F., “The Decision to Prosecute,” Law and Society Review, 4 (02, 1970), 313–343 CrossRefGoogle Scholar. Also see Carter, Lief H., “The Limits of Order: Uncertainty and Adaptation in a District Attorney's Office” (Ph.D. dissertation, University of California, Berkeley, 1972)Google Scholar.

³⁶ It is now commonplace to describe the reality of the criminal justice process in terms of a “crime-control,” “bureaucratic,” or “dispositional” model which diverges from the ideal “due process” or “adversarial” model. See Blumberg, Abraham, Criminal Justice (Chicago: Quadrangle, 1967)Google Scholar; Packer, Herbert L., The Limits of the Criminal Sanction (Stanford: Stanford University Press, 1968), part IIGoogle Scholar; and Jacob, Herbert, Urban Justice (Englewood Cliffs, New Jersey: Prentice-Hall, 1973), chapter 4Google Scholar; and “Criminal Courts as Organizational Phenomena” (unpublished paper, 1973).

³⁷ Rosenberg, Maurice, The Pretrial Conference and Effective Justice (New York: Columbia University Press, 1964)Google Scholar.

³⁸ Kawashima, p. 43.

³⁹ Similar devices have evolved in non-American settings. Cohen, in his study of criminal justice in China, detected an emphasis among public officials on informal settlement. He observed that almost immediately upon capturing the major cities of China in 1949, the Communists established out-of-court mediation committees there. Party agents were designated with special responsibility to seek, with the agreement of both parties, resolution of ordinary civil disputes and minor criminal problems. Local norms and values were applied in an effort to keep cases out of formal court. “Coping with disputes and anti-social conduct by means of persuasion and informal pressures” was the prevailing orientation. Cohen, Jerome, The Criminal Process in the People's Republic of China (Cambridge: Harvard University Press, 1968), p. 123 Google Scholar.

⁴⁰ Mentschikoff, Soia, “Commercial Arbitration,” Columbia Law Review, 61 (05, 1961), 849 CrossRefGoogle Scholar. Also see Note 71 below.

⁴¹ Handshaker, Morris, “Grievance Arbitration and Mediated Settlements,” Labor Law Journal, 17 (10, 1966), 580 Google Scholar.

⁴² Kerr, James, “Constitutional Rights, Tribal Justice and the American Indian,” Journal of Public Law, 18, No. 2 (1969), 322 Google Scholar.

⁴³ See Doo, Leigh-Wai, “Dispute Settlement in Chinese-American Communities,” American Journal of Comparative Law, 21 (Fall, 1973), 627–663 CrossRefGoogle Scholar.

⁴⁴ “Roman Catholic Ecclesiastical Courts and the Law of Marriage”; see also “Rabbinical Courts,” Columbia Journal of Law and Social Problems, 6 (01, 1970), 57 Google Scholar.

⁴⁵ See Miller, Arthur S., “Private Governments and the Constitution” (Santa Barbara, California: Center for the Study of Democratic Institutions, 1959)Google Scholar, and Bachrach, Peter, The Theory of Democratic Elitism (Boston: Little, Brown, 1967), chapter 7 and passim Google Scholar.

⁴⁶ See Anderson, Charles W., “Public Policy, Pluralism, and the Further Evolution of Advanced Industrial Society” (paper delivered at the 1973 annual meeting of the American Political Science Association, New Orleans)Google Scholar.

⁴⁷ Fuller, Lon, The Morality of Law (New Haven: Yale University Press, 1964), chapter 2Google Scholar.

⁴⁸ See Boorstin, Daniel, “The Perils of Indwelling Law,” in The Rule of Law, ed. Wolff, Robert Paul (New York. Simon and Schuster, 1971), pp. 75–97 Google Scholar.

⁴⁹ See A Research Plan for a Caseload Forecasting Study: Final Report (Washington, D.C.: Federal Judicial Center, 1972), p. 24 Google Scholar. The influence of legal changes on litigation can be seen in reference to the growth of prisoner petitions in the federal courts. Recent Supreme Court decisions, for instance Fay v. Noia (1963), Miranda v. Arizona (1966) and Gideon v. Wainwright (1963), have gone far to stimulate the extraordinary growth in the number of prisoner petitions filed since 1960. In that year approximately 2,000 petitions were filed; by 1970 more than 16,000 were being filed annually. See The Annual Report of the Administrative Office of the U.S. Courts (Washington, D.C.: U.S. Government Printing Office, 1972), p. 119 Google Scholar.

⁵⁰ This requirement is not adhered to in all courts. In fact, some courts have been established so as to avoid the need to rely upon legal specialists. For a discussion of one type of court where lawyers are generally not employed see Yngvesson, Barbara and Hennessey, Patricia, “Small Claims, Complex Disputes: A Review of the Small Claims Literature” Law and Society Review, 9 (Winter, 1975), 219–274 CrossRefGoogle Scholar.

⁵¹ The role of lawyers in adjudicative bodies is discussed by Jacob, Herbert, Justice in America, pp. 60–64 Google Scholar. See also Wasserstrom, Richard, “Lawyers and Revolution,” in Radical Lawyers, ed. Black, Jonathan (New York. Avon, 1971), pp. 74–84 Google Scholar.

⁵² It should be noted, of course, that within a formal “zero-sum” structure of ruies and rights the working ideology may be significantly more oriented toward compromise and official discretion. The disparity between the two has recently become the basis of much concern. See, inter alia, Davis, Kenneth, Discretionary Justice (Urbana: University of Illinois Press, 1971)Google Scholar.

⁵³ Freund, Paul, “Social Justice and the Law,” in Social Justice, ed. Brandt, Richard (Englewood Cliffs, New Jersey: Prentice-Hall, 1962), pp. 110–117 Google Scholar.

⁵⁴ For a discussion of the strategies of litigation employed by various reform groups see Handler, Joel, “Social Reform Groups and the Legal System: Enforcement Problems” (Institute for Research on Poverty, Madison, Wisconsin, 1974)Google Scholar.

⁵⁵ This value is first defined by Banfield and Wilson in City Politics.

⁵⁶ See Jacob, Herbert, Debtors in Court (Chicago: Rand McNally, 1969), p. 20 Google Scholar.

⁵⁷ Such data as there are suggest that there are wide-ranging differences among societies in the frequency with which judicial intervention in dispute settlement is sought. This is amply demonstrated by the data presented below, a simple index of civil cases initiated per unit of population for selected countries. Even allowing for the crudeness of these data, the table does more than suggest the wide

variation in litigation rates. Some of the variations shown may be accounted for by different reporting techniques and by the concealment, under alternative labels, of what are essentially judicial processes. There is considerable variance in the accuracy of litigation statistics. Similar types of cases are treated differently in different countries. The use of administrative and other special tribunals to settle disputes which elsewhere come to courts of general jurisdiction affects the reliability of this index. The table presented above uses the “raw” figures and does not attempt to correct for functional similarities reported under different category headings. The number of civil cases filed at the basic trial level was ascertained in all cases except Great Britain from each nation's statistical abstract. The British figures were obtained from the report of the Lord High Chancellor, , Civil Judicial Statistics (Command Paper 4721, 07, 1971)Google Scholar. The United States has not been included because of the unavailability of adequate statistics from all 50 states at the time this paper was written. See Grossman, Joel B. and Sarat, Austin, “Litigation in the Federal Courts. A Comparative Perspective,” Law and Society Review, 9 (Spring, 1975), 321–346 CrossRefGoogle Scholar.

⁵⁸ For a discussion of this relationship, see Trubek, David M., “Max Weber on Law and the Rise of Capitalism,” 1972 Wisconsin Law Review, 720–753 Google Scholar.

⁵⁹ Gulliver, P. H., “Case Studies of Law in Non-Western Societies,” in Law in Culture and Society, ed. Nader, Laura (Chicago: Aldine, 1969), p. 15 Google Scholar. Also see Schwartz, Richard D. and Miller, James C., “Legal Evolution and Societal Complexity,” American Journal of Sociology, 70 (09, 1964), 159–169 CrossRefGoogle Scholar; and Schwartz, Richard D., “Legal Evolution and the Durkheim Hypothesis: A Reply to Professor Baxi,” Law and Society Review, 8 (Summer, 1974), 653–668 CrossRefGoogle Scholar.

⁶⁰ Gluckman, Max, The Judicial Process Among the Barotse of Northern Rhodesia, 2nd edition (Manchester, England: Manchester University Press, 1967), P. 21 Google Scholar.

⁶¹ Galanter, Marc, “Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Legal Change,” Law and Society Review, 9 (Fall, 1974), 95–160 CrossRefGoogle Scholar. Lev, Daniel, Islamic Courts in Indonesia (Berkeley. University of California Press, 1972)Google Scholar.

⁶² Galanter, Marc, “Hindu Law and the Development of the Modern Indian Legal System” (paper presented at the 1964 annual meeting of the American Political Science Association), p. 25 Google Scholar.

⁶³ This is true to the point at which parties wish to terminate these relationships. See Macaulay, “Non-Contractual Relations.”

⁶⁴ Galanter, , “Why the ‘Haves’ Come Out Ahead,” p. 130 Google Scholar. Also Aubert, Vilhelm, “Law as a Way of Resolving Conflicts,” in Nadar, , p. 286 Google Scholar.

⁶⁵ Jacob, Debtors in Court, chapter 6.

⁶⁶ According to the social development model, as social relationships become attenuated and economic relationships more complex and less personal, there should be greater reliance on official and more public means of dispute settlement. If we accept urbanization (percentage of the population in cities of 100,000 or more) as one indicator of social development it is possible to hypothesize a relationship between urbanization and the rate of litigation. For the countries listed in the Table in Note 57 there is a correlation of .617 (sig. level .05) between urbanization and litigation rate.

⁶⁷ Pospisil, Leonard, “Legal Levels and Multiplicity of Legal Systems in Human Societies,” Journal of Conflict Resolution, 11 (03, 1967), 3 CrossRefGoogle Scholar.

⁶⁸ This relationship has been examined for the United States by Grossman and Sarat, “Litigation in the Federal Courts.”

⁶⁹ For a discussion of the development of litigation in Great Britain see Friedman, Lawrence, “Functions of Trial Courts in the Modern World,” pp. 21, ffGoogle Scholar.

⁷⁰ See Toharia, Jose J., “Economic Development and Litigation: The Case of Spain” (presented at Conference on Sociology of Judicial Process, University of Bielefeld, German Federal Republic, 1973), pp. 14, ffGoogle Scholar.

⁷¹ The movement away from litigation to arbitration is well known and documented. For example, Bonn reports that from 1961 to 1969, in the Southern District of New York, the number of contract actions filed in the federal court declined absolutely, while at the same time the commercial case load of the American Arbitration Association more than doubled. Bonn, Robert L., “Arbitration: An Alternative System for Handling Contract Related Disputes,” Administrative Science Quarterly, 17 (06, 1972), 254–264 CrossRefGoogle Scholar. See also Downie, Leonard Jr., Justice Denied (Baltimore: Penguin, 1972), pp. 202–203 Google Scholar and Frank, Jerome, Courts on Trial: Myth and Realty in American Justice (New York. Atheneum, 1963), chapter 27Google Scholar.

A similar movement from litigation to arbitration has been noted in Sweden and Denmark. See Blegvad, Britt-Mari, Bolding, P. O. and Landon, Ole, Arbitration as a Means of Solving Conflicts (Copenhagen: New Social Science Monographs, 1973), pp. 103–109 Google Scholar; and Blegvad, , “The ‘Choice’ Between Litigation and Arbitration” (presented at a Conference on Sociology of Judicial Process, University of Bielefeld, German Federal Republic, 1973)Google Scholar.

We would expect that those who seek alternatives to litigation either have a better chance at winning in those alternative forums or see advantages in the speed, lower costs, flexibility and expertise of arbiters. On the other hand, arbitration has transferred a considerable amount of political and economic power away from public agencies to private groups who can operate outside of the restraints of legal and constitutional rules. See also Stern, James L., “Alternative Dispute Settlement Procedures,” Wisconsin Law Review, No. 4 (1968), 1100–1112 Google Scholar. Yet, private arbitration remains dependent on the existence of courts, and arbitration decisions themselves may be the subject of litigation, usually in a suit to compel enforcement. See McDermott, Thomas J., “Arbitrability: The Courts Versus Arbitration,” Arbitration Journal, 23, No. 1 (1968), 18–37 Google Scholar.

⁷² See Collier, Jane, Law and Social Change Among the Zinacanton (Stanford: Stanford University Press, 1973)Google Scholar.

⁷³ On the recognition of legal needs see Sykes, Gresham, “The Legal Needs of the Poor in the City of Denver,” Law and Society Review, 4 (11, 1969), 255–277 CrossRefGoogle Scholar. Almond and Verba did report that only two per cent of their sample would try to change government policy by going to court. Jacob's application of the same questions produced comparable results. But what they were tapping was only a small component of a more generalized attitude about going to court to resolve disputes. See Almond, Gabriel and Verba, Sidney, The Civic Culture (Boston: Litle, Brown, 1965), pp. 148–160 Google Scholar; and Jacob, , Debtors in Court, p. 233 Google Scholar.

⁷⁴ Conflict, as used in this paper and generally in the literature, is a “state existing between two (or more) individuals characterized by some overt signs of antagonism.” See Aubert, Vilhelm, “Competition and Dissensus,” Journal of Conflict Resolution, 7 (03, 1963), 25 CrossRefGoogle Scholar.

⁷⁵ Blegvad et al. report data which suggest that conflicts of interest may be more productive of arbitration and less productive of litigation than conflicts of value. Arbitration as a Means of Solving Conflicts, p. 139. However, this does not necessarily mean that conflicts of value will numerically predominate in the caseloads of courts. In fact, preliminary data from another study show without question that most litigation in American courts involves what would seem, by the above definition, to be conflicts of interest. What appears to be a conflict between these data and the hypothesis is easily resolved if one makes the entirely plausible assumption that conflicts of interest represent a much larger universe from which a relatively small sample of disputes is mobilized to the stage of judicial proceedings.

⁷⁶ Ross, H. Laurence, Settled Out of Court. The Social Process of Insurance Claims Adjustments (Chicago: Aldine, 1970), p. 144 Google Scholar.

⁷⁷ Ibid.

⁷⁸ Edelman, Murray, Politics as Symbolic Action (Chicago: Markham, 1971), p. 10 and passim Google Scholar.

⁷⁹ As Dolbeare argues, people are more likely to use the courts when the balance of other political forces is against them, Trial Courts in Urban Politics.

⁸⁰ By involving the offiical third-party intervention of the courts, new rules and new actors, not always predictable, enter the dispute. Flexibility may be lost. When a dispute rises to a certain level of prominence the sphere of conflict may be enlarged, increasing the resources of one side to the disadvantage of the other. The political value of resources such as money, popular support, and interest group aggregation may be devalued in the judicial context, which places a great premium on individual effort, individual rights, and a more “objective” or abstract approach to conflict resolution.

⁸¹ Wanner, Craig, “The Public Ordering of Private Relations,” Law and Society Review, 9 (Spring, 1974), 421–440 CrossRefGoogle Scholar; and Galanter, “Why the ‘Haves’ Come Out Ahead.” Also, at the individual level cost considerations seem to produce a bias in court usage in favor of higher SES people. See Hunting, Robert and Neuwirth, Gloria, Who Sites in New York City (New York: Columbia University Press, 1962), pp. 98–110 Google Scholar.

⁸² Wanner, p. 437 and passim.

⁸³ The location of the prototypical conflict resolution medium for a particular type of dispute would of course vary among societies. See Hart, Henry and Sacks, Albert, The Legal Process: Basic Problems in the Making and Application of Law (Cambridge. Tentative edition, 1958), pp. 312–313 Google Scholar. The Hart and Sacks pyramid is often rightly criticized for overemphasizing the importance and primacy of the upper layers. Our use of the same metaphor is descriptive only. Certainly it would be contrary to much that we say elsewhere in this paper to endorse a top down view of the legal system. Morton Grodzins's “Marble Cake” metaphor, by which he described the federal system, might almost be more appropriate. Grodzins, , “Centralization and Decentralization in the American Federal System,” in A Nation of States, ed. Goldwin, Robert (Chicago: Rand McNally, 1963), pp. 1–4 Google Scholar.

⁸⁴ In our discussion in this section of the paper we treat government as a single unified whole. We are aware, however, that this treatment does not do justice to reality. We recognize that one unit of government may encourage use of the courts while other units discourage use. This is particularly important where the courts themselves, as a part of government, encourage or discourage litigation while other government bodies may be doing the opposite.

⁸⁵ Cf. Eckhoff, , “The Mediator and the Judge,” p. 172 and passim Google Scholar.

⁸⁶ de Tocqueville, Alexis, Democracy in America (New York: Knopf, 1945), pp. 291–297 Google Scholar.

⁸⁷ A high frequency of litigation in a particular geographic area, or about a particular set of problems, might indicate temporary instability but promise a transition into a more stable environment. There are numerous examples just in the United States in recent years—questions of the rights of juveniles, prisoners, students, and persons subjected to involuntary civil commitment—of relationships which had been handled more or less bureaucratically and one-sidedly but which have now become “judicialized” and at least temporarily less stable. One could take the position that schools or prisons were run more efficiently when all disputes were settled internally. Or it could be argued that recourse to the courts provided a safety valve to stabilize conditions which, because of other social forces, were no longer responsive to the old rules.

⁸⁸ See Frank, Jerome, Courts on Trial, p. 92 and passim Google Scholar.

⁸⁹ For an interesting discussion of the relationship of court procedures and regime legitimacy see Balbus, Isaac, The Dialectics of Legal Repression (New York: Russell Sage Foundation, 1973), chapter 1Google Scholar.

⁹⁰ See Becker, Theodore L., Comparative Judicial Politics (Chicago: Rand McNally, 1970), pp. 109–112 Google Scholar. Public norms may also reflect emerging norms of private dispute resolution.

⁹¹ See Scheingold, Stuart, The Politics of Rights (New Haven. Yale University Press, 1974), p. 48 and passim Google Scholar. Also see Goss v. Lopez, 42L.Ed.2d725 (1975), where the Supreme Court extended some due process guarantees to high school students threatened with suspension.

⁹² Lockard, Duane, Toward Equal Opportunity (New York: Macmillan, 1968), p. 141 Google Scholar.

⁹³ Scheingold, , The Politics of Rights, pp. 8, 130 and passim Google Scholar.

⁹⁴ Jacob, , Debtors in Court, pp. 117–124 Google Scholar.

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⁹⁶ The importance of rights and their relation to litigation and litigation strategies is also discussed by Scheingold, The Politics of Rights.

⁹⁷ Macaulay, Stewart and Walster, Elaine, “Legal Structures and Restoring Equity,” Journal of Social Issues, 27, No. 2 (1971), 173–188 CrossRefGoogle Scholar.

⁹⁸ Becker, p. 113.

⁹⁹ This line of argument was suggested to us by Hadley Arkes. We are not advocating a return to “juridical authority” in the same sense in which Theodore Lowi uses the term. Lowi, , The End of Liberalism (New York: Norton, 1969), chapter 10Google Scholar. For a good expression of the contrary view, that legalization is the sign of a collapsing social order and not the means of its rejuvenation, see Levinson, Sanford, “The Rediscovery of Law,” Soundings (Fall, 1974), pp. 318–337, esp. p. 333Google Scholar.

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