Longitudinal trial court studies lack a simple model of system litigation. This essay advances the argument that models which attempt to explain either trial court behavior or changes in civil litigation have little explanatory power. Rather, a system mobilization model is needed that has the following paradigms: (1) a perception paradigm that produces awareness of matters that might be the subject of a conflict or dispute; (2) a paradigm that explains how these detected matters are socially constructed as potentially legal matters; (3) a legal mobilization paradigm explaining how legal agents or some legal subsystem is mobilized to handle some legal matters; (4) a process paradigm explaining how matters that enter the trial courts become matters for trial; (5) a trial court mobilization paradigm followed by (6) an appellate process paradigm. The development of such a model of system litigation will resolve some of the methodological as well as conceptual problems that currently beset research on trial courts. A number of these problems relating to the longitudinal study of trial courts are discussed.

This article suggests ways to integrate the insights and findings of two rather distinct fields: docket-based, longitudinal studies of trial courts and studies of dispute processing. In particular, I argue that longitudinal research on courts would benefit enormously from the incorporation of concepts and data on dispute processing. For example, instead of taking court cases as the starting point for study, longitudinal research should explore the multistage and transformative nature of disputing. Historical data should also be collected on the nature of the relationships between opposing litigants, on the roles played by participants other than the litigants (lawyers, supporters, audiences, third parties), and on the nature of processes within courts and within alternative community institutions for handling disputes. Longitudinal research can also contribute to our understanding of dispute processing by showing how current processes have been shaped by past use, and how changes in institutions and legal doctrine have influenced the definition and processing of disputes. I also discuss the weaknesses shared by some of the research in both fields, such as a greater concern for process than for outcome, a tendency to ignore political aspects of litigation, and an overemphasis on individual disputing behavior. I conclude by suggesting that longitudinal research on trial courts should pay greater attention to change in ideas about law and to shifting conceptions of right and wrong, cause and responsibility, and problem definition.

This article explores the way that a set of cases arising from a specific event, product, or claim form a congregation of cases that displays common features and that traces a discernable career over time. Such a career is related to, but not uniquely determined by, the course of the social activity that underlies the type of case. The relation of activity and case congregation is mediated by a complex structure of disputing activity (including norms, cognitive dispositions, institutions of access, stakes and resources, social support, legal services, and more). In addition to these external influences, such litigation itself influences its future course by various effects on the underlying activity, on the organization of disputing about it, and on the legal setting. Such endogenous effects include holistic effects associated with the size and distribution of the congregation and career effects associated with the way that the congregation unfolds over time. Delineation of these various effects suggests that litigation lives “a life of its own,” partly independent of underlying events in the outside world, but that the regularities in the litigation process are not reducible to a comprehensive pattern since the activity is interactive and strategic.

The concept of thematization—the process by which actors select a frame of reference for their communications—captures an aspect of dispute resolution that is fundamental to Macaulay's description of noncontractual commercial relations and to many recent dispute resolution studies. Thematization both describes the identification of events as relevant to relations between the parties and links these events to special resources and sanctions. In the thematization process managers apply their knowledge of commercial relations and of transaction structures to ensure freedom to choose between modes of handling matters. A pilot study of Danish firms illustrates the workings of the process. The author's preliminary analysis suggests that thematization within the firm determines how various forms of norms are applied at different times. Businessess continue to employ laws and litigation when other forms of governance of economic relationship fail. Thus law is still an important source of power in business.

This article documents and explains the emergence of implicit plea bargaining in the federal district courts during the Progressive and Prohibition periods. Three competing explanations for plea bargaining are tested statistically—the caseload, the substantive justice, and the evidentiary quality arguments. All three receive qualified support. The historical operation of each of these causal paths, however, was shaped by the preoccupation of more elite federal judges with their own professional self-image in the face of Prohibition. Implicit plea bargaining in the federal courts emerged reflexively as an unintended consequence of the failed Progressive assault on the “corrupt” explicit plea bargaining practices of lower state and county courts.

This article examines the ways in which litigation research has taken an insiders' view of the courts and the problematic implications of this position for a more critical analysis of sociolegal institutions. The first part presents a brief overview of the literature, showing the way in which court and judge are often collapsed into one, ahistorical and unchanging actor. Building on this critique, the second part presents a definition of the court as an organization that draws on a historical, comparative, and critical perspective. Finally, part III offers suggestions for expanding and enhancing research on litigation in the future.

This comment argues that to understand the role of trial courts in maintaining a particular order of differences in society, attention must be directed beyond official legal arenas and official rules to the actions of ordinary citizens and of “marginal” legal officials who make law and shape the court through practices that are excluded from official accounts. This move provides an account of the meaning of courts, of cases, and of law that is relational, and that attends to the agency of everyday people in producing and resisting forms of domination.

Changes in government litigation during the past fifty years are treated as an indicator of changes in policymaking priorities of various national administrations during that period. Policies of direct government intervention (enforcement) are distinguished from policies of indirect intervention (regulation). They are measured here by U.S. plaintiff and U.S. defendant litigation trends in federal district and appeals courts from 1937 to 1986. Trends in administrative appeals from regulatory agencies, boards, and commissions to the appeals courts are used to estimate the intensity of regulatory activity. There is some evidence of systematic variation in government litigation and administrative appeals due to an “administration” effect, but there are also secular tendencies suggesting a more general “government” effect cutting across various administrations. The implications of the analysis for the theory of the state are discussed.

Using a data base of 28,000 trial cases decided in four Arizona trial courts between 1912 and 1951, this article examines the relationships between crises, litigation, and policy change. After comparing and contrasting consensus and conflict perspectives on trial court litigation, an interrupted time series design is used to test three propositions derived from the conflict perspective. These propositions concern the impact of crises, namely, world wars and depressions, on different types of litigation; the victory patterns of different types of disputants; the ability of losing litigants to obtain policy relief; and the impact of policy change on varying disputants and litigants. The results suggest the utility of further attempts to explore litigation from an economic and political conflict perspective.

The local political economy links courts to society. A consideration of this linkage helps explain why so few of New York City's nineteenth-century homicides resulted in punishment. Their punishment requiring both state and local governments' cooperation and expenditures, high homicide rates manifested fiscal contradictions imposed by local voters, who desired high service but low taxes. Thus trials for homicides did not index homicides but were complex, indirect outcomes of fiscal, political, and soical processes.

This article describes economic research on models of legal disputes. Concepts such as rational choice and static equilibrium are often used inaccurately in the noneconomic research presented in this issue. This article critiques the longitudinal studies, illustrating a number of problems of conceptualization and data analysis. Finally, the authors consider normative models of dispute resolution and the evolution and effects of judge-made law.

Civil litigation rates in the European and Latin American countries examined in this article rose during the 1970s. It is unlikely, however, that this growth was primarily caused by socioeconomic development. First, per capita economic growth slowed during the 1970s compared to the earlier postwar period. Second, litigation rates between 1945 and 1970 were either flat or cyclical, reacting to forces independent of socioeconomic development. Third, rates of filing civil cases in the 1980s seem again to be falling. By investigating regional litigation rates within a country, nevertheless, it appears that the level of socioeconomic development does influence the total number of disputes generated or the citizenry's propensity to use formal courts. Further progress in understanding the multiple factors affecting civil litigation trends will depend on a sophisticated local environment model and further intracountry studies.

Drawing on the experience of the European working group for the comparative study of litigation patterns, the author assesses the possibilities and limits of longitudinal international comparisons. The major challenge is ensuring that what is compared is comparable. Overall national litigation data are not comparable as such; official statistics raise more questions than they answer. The problems lie in the (socio)legal categories used in various countries, consistency of registration over time, and differences in legal procedures. The author suggests that a more fruitful line of inquiry begins with sociolegal categories of problems (e.g., housing, debt) and searches for litigation patterns. Thus disaggregating litigation data has the additional advantage of allowing the use of problem-specific baselines, which makes for greater comparability of data.