Empirical Theories About Courts

EMPIRICAL

THEORIES

ABOUT COURTS

EMPIRICAL THEORIES

ABOUT COURTS

~

edited by

Keith O. Boyum

and

Lynn Mather

CLASSICS OF LAW & SOCIETY

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Smashwords edition. Compilation, selection, and editorial matter copyright © 1983, 2015, by Keith O. Boyum and Lynn Mather. Additional copyrights to individual chapters and contributions are held by their respective authors. New Preface © 2015 by Lynn Mather and Afterword © 2015 by Keith O. Boyum. Cover design © 2015 by Quid Pro, LLC. All rights reserved.

Previously published in 1983 by Longman Inc., New York (currently Pearson Education, Inc.), as part of the Longman Professional Studies in Law and Public Policy Series, and copyright © 1983 by Longman Inc.

Published in the 2015 digital edition by Quid Pro Books, at Smashwords, as part of the Classics of Law & Society Series.

ISBN 978‐1‐61027‐317‐6 (ePUB, 2015 digital edition)

ISBN 978‐1‐61027‐311‐4 (pbk., 2015 reprint edition)

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Publisher’s Cataloging in Publication

Boyum, Keith O.

        Empirical theories about courts / edited by Keith O. Boyum and Lynn Mather.

        (previously published, 1983).

              p. cm. — (Classics of law & society)

        Includes bibliographical references and index.

1. Courts—Research—United States. 2. Courts—Research. I. Mather, Lynn M. II. Title. III. Series.

Additional editorial consulting for the reprint edition was generously provided by Lee Scheingold.

Contents

[Chapter endnotes follow at the end of the relevant chapter or contribution, and are linked.]

Foreword

2015

A judge. An adversarial trial. An opinion. An adjudicated outcome. For many, these words describe courts and case flow. If things were this simple, Empirical Theories About Courts would be a very short book. But, of course, this does not represent reality for most courts and cases. As Mather (Epilogue) puts it, for nearly all civil and criminal cases the traditional model of court as a judge-dominated, formal adversary process of adjudication does not hold (p. 245). What exists instead, as we learn from the pages that follow, is so variable, complex, and dynamic that a proper study of courts must return to first principles. And that is precisely what an all-star list of interdisciplinary court scholars, many of whom have established storied careers as trial court experts, does so well within the chapters of this book.

One of Empirical Theories About Courts’ greatest strengths in its return to the theoretical foundations of courts may be its breadth. The book’s chapters compare courts and legal processes across countries, traditions, and history. The theories developed and reviewed provide insight into both civil and criminal law and should be informative for those interested in trial courts, appellate courts, and how the two interact in a judicial hierarchy. Throughout its chapters, the book tackles the work of traditional, formal courts, but focuses even more on related topics like when and why we see a predominance of informal courts and how cases develop through claims and dispute formation.

This latter area of concentration — examining informal courts and case development — enables the book to emphasize how inadequate the traditional model of courts is for most situations in a way that is missing in much of the existing courts literature. This focus starts with an etiology of claims (chapter 6), the antecedents to both disputes and court cases. To do this, Boyum provides a very careful exploration of circumstances, something that includes defining them (including the rate and magnitude of changes in circumstances), estimating them (how do my circumstances differ from those of others?), and evaluating them (is the circumstance undue to me?).

Yngvesson and Mather (chapter 3) continue with the next step by investigating the disputing process in and out of courts and how disputes get transformed. They provide a critique of the tribal/modern paradigm of dispute processing that was prevalent in the literature at the time, arguing instead that attention should be focused on forum characteristics — such as degree of openness or closure, the extent to which language is specialized, and the complexity of organizational levels — that affect dispute transformation in a range of social settings. As the authors recognize, so much about civil and criminal dispute processing in the United States today (both the today of 1983 when Empirical Theories About Courts was first published and, maybe even more so, the today of 2015) cannot be accounted for in terms of such a paradigm. This includes the high frequency of informal processing of disputes, two-party negotiations, and compromise outcomes. There may still be room for judges to act as negotiation facilitators, a topic Black and Baumgartner delve into in chapter 4’s exploration of the third party and one that I have explored in my own quantitative research,¹ but Yngvesson and Mather are right to emphasize forum characteristics along with the power of the various parties in these proceedings.

In chapter 5, Galanter considers the centrifugal messaging and influence that comes from courts. As discussed within the chapter, this impact is sweeping. Among other things, this focus highlights how the threat of courts and the anticipation of their outputs can have a very powerful effect as cases begin to form following the claim and dispute transformation processes described above.²

Jacob (chapter 8) is able to further this discussion by examining the role of courts and court actors in the filtering of cases into the system. Done through a rich exploration of organizational theory and organizational boundaries, Jacob notes that appellate courts try to shape their case load and shelter themselves from excessive demands (p. 199). For trial courts, however, much depends on whether the case is criminal or civil. For the former, prosecutors hold powerful agenda control.³ For the latter, Jacob describes a diffuse process that can be indirectly manipulated by trial court work groups through things like filing deadlines and mandatory pretrial conferences to encourage settlement.

The insights gained from the in-depth theoretical exploration within the book on claiming, disputing, and case development outside of conventional adjudication are in and of themselves valuable. But they also serve an important methodological function. Empirical and quantitative scholars of courts today are increasingly concerned about selection bias — in other words, that any results that yield from our data and statistical modeling are representative of a larger set of disputes in the legal system.⁴ As the chapters throughout Empirical Theories About Courts confirm, there is no question that the cases that are filed in courts and lead to court-driven adjudications are not a random sample of all potential cases. What this means, of course, is that scholars of all sorts, even those only interested in appellate courts, must account for this book’s insights about the data generation process of cases getting into the system if they are going to avoid biased results. Doing otherwise amounts to just studying the iceberg from its tip.⁵

Let me turn to something very different that I enjoy about Empirical Theories About Courts. It is a wonderfully interdisciplinary text. With chapter authors hailing from a variety of disciplines, including law, sociology, anthropology, and political science, this should come as no surprise. There are numerous examples throughout the book to support this, but I would like to point to one that I find particularly compelling. In his chapter on case load studies (7), Krislov examines the four major theories of case loads used in the extensive existing literature. As he uncovers, these four theories come from very different disciplinary homes — economics (utilitarian theory), sociology (functional), political science and administrative law (systems theory), and legal theory (normative evolution). Krislov’s analysis helps underscore how so many of us across these varied disciplines are interested in the same questions and can benefit from a more shared theoretical perspective.

It has been over thirty years since Empirical Theories About Courts was first published, but I find the text to be very contemporary. Empirical Theories About Courts’ design to focus on theory building rather than simply examining discrete datasets or engaging in data mining of a single set of observations is a key factor in the book’s longevity. Observational data about courts have changed a great deal since the book’s first publication in 1983, but the theories endure. Because of its theory-based design, one of this book’s most persevering impacts on scholarship may be the large number of research questions presented within it that are ripe for rigorous testing. Today, even more so than the book’s first publication, some of these tests are possible on larger scales, across courts, and even comparatively.

I believe there are two strong explanations for this. First, despite the strong case made within the book for more systematic, empirical research on trial courts, there continues to be an upper court bias in scholarship within many disciplines (certainly my own, political science). This means that a great many questions regarding lower courts and the disputing process theorized about here remain largely unanswered.

Second, the data availability and reliability concerns noted within Empirical Theories About Courts are not nearly as problematic today. For example, Friedman’s concerns (chapter 2) that judicial statistics are shockingly poor in the United States and that most [states] hardly gather data at all (p. 20) no longer hold today. Technology and transparency within courts and court administration agencies are readily adding to the amount of court data that is being made electronically available. This is slowly opening up the potential for testing the empirical theories that are at the heart of this book in new, more large scale ways — across multiple federal or state trial courts, examining non-opinion outcomes like settlements and plea bargains, detailing the variance in the use of pretrial conferences, and the like. This is not to say, of course, that available data are perfect today — Friedman’s worry (chapter 2) that no two states classify cases the same way and the categories they use (such as ‘contract’) are often too broad to be helpful (p. 26) is likely still true in lawsuit classification among both state and federal courts — but things have surely improved in this regard, thereby making this book’s theories all the more relevant to contemporary scholars.

In short, Empirical Theories About Courts is an excellent place to start with today’s ongoing research on and examination of courts, cases, and potential cases, and it gives me great pleasure to commend you to it. The book encourages and enables a theoretical care that many of today’s empiricists, myself included, are often guilty of overlooking while developing research designs. If you are like me and have read this book in the past, return to it again and you will be delighted at its durability and relevance. If you have not read it before, there is no time better than the present.

CHRISTINA L. BOYD

Assistant Professor

Department of Political Science

University of Georgia

June, 2015

NOTES

1  Boyd, Christina L. (2013), She’ll Settle It?, Journal of Law and Courts 1:193; Boyd, Christina L. and David A. Hoffman (2013), Litigating Toward Settlement, Journal of Law, Economics, & Organization 29:898.

2  Others have often referred to this concept as bargaining in the shadow of the law or the shadow of the trial. Mnookin, Robert H. and Lewis Kornhauser (1979), Bargaining in the Shadow of the Law: The Case of Divorce, Yale Law Review 88:950; Smith, Douglas A. (1986), The Plea Bargaining Controversy, Journal of Criminal Law & Criminology 77:949.

3  Of course, to get to that point of having agenda control, prosecutors had their own organizational challenges related to their interests diverging from police interests (a topic thoroughly detailed by Feeley and Lazerson in chapter 9).

4  Kastellec, Jonathan P. and Jeffrey R. Lax (2008), Case Selection and the Study of Judicial Politics, Journal of Empirical Legal Studies 5:407.

5  Siegelman, Peter and John J. Donohue, III (1990), Studying the Iceberg from its Tip: A Comparison of Published and Unpublished Employment Discrimination Cases, Law & Society Review 24:1133.

Preface

2015

In the decades since Empirical Theories About Courts was first published, colleagues have suggested that we should produce a second edition of the book. Salient issues of criminal justice, litigation, and trial courts have certainly not receded in importance. Moreover, we could take advantage of all of the new court data that is now available to test the theoretical ideas developed in the book. We decided instead to leave that challenging undertaking for a new generation of scholars. They are in a better position to assess which ideas should be pursued and which discarded. To further that empirical research and increase the book’s availability, we are pleased that the original book is now being republished,¹ including in a digital edition. This interdisciplinary collection of essays on courts contains classic material from law and society, much of which should be highly relevant to scholars studying courts today. The group of us wrote the book during a renaissance of interest in trial courts. Urban crises, racial unrest, and a growing crime rate in the 1960s and 1970s had shed a harsh light on criminal justice in the United States. Rather surprisingly — as I write this in 2015 — it seems as if little has changed since then.

But one difference lies in the response of government commissions, foundations, and academics, which generated a large body of empirical research in the 1970s on law enforcement, prosecutors, and trial courts. The Omnibus Crime Control and Safe Streets Act of 1968 provided federal funding for criminal justice research and led to a specific call for proposals in 1978 to develop empirical theories of courts. Unlike government solicitations before or after — most of which focused on practical issues facing police, court administrators, or corrections officials — this request explicitly sought scholarly work to develop theoretical concepts about the role of courts in society:

It is important to bear in mind the overall goal of the program — to contribute to the development of empirical theories of courts . . . The focus of this program is on explanatory generalizations and theory development, not on the collection of data or solution of specific court problems. (NILECJ, 1978:5, emphasis in original)

Now, when federal support for scientific funding in the United States faces severe challenges, it is good to be reminded of an earlier time, when government was committed to social scientific scholarship. Overly optimistic and, in hindsight, perhaps naïve, the experts of an earlier generation believed that theoretical and empirical inquiry into courts would have long term value.

That the central focus of this book is on theories about courts, rather than on data or policy solutions, explains why it is being republished. In the intervening decades empirical data has accumulated, but interpretation and analysis of those data have lagged behind. The Federal Judicial Center and National Center for State Courts have done well encouraging federal and state courts to collect case data of all kinds and issuing excellent public reports analyzing case load statistics. Although initially focused on criminal courts, the reports now include statistics on tort filings, divorce, and other civil case data. The federal data are far better than the state data, however, due to inconsistencies across state systems in how they define legal terms and record court actions. Those who funded the research reported in this book recognized the importance of appellate and federal courts but stressed that they were "primarily interested in state trial courts. The trial court is the court with which citizens have the most direct contact in both civil and criminal matters." (NILECJ, 1978:1, emphasis in original). Despite the tremendous advances in empirical research on appellate courts since then, we still know relatively little about trial courts. This gap, I might add, is especially glaring for comparative research in the field of law and courts.

SOME IDEAS FROM THE BOOK – AND RECENT SCHOLARSHIP

Consider four questions about trial courts explored in this book and a few recent works that address or build on them. Instead of paying close attention to the movement of cases into courts, why don’t we instead examine the messages that radiate out from courts? Marc Galanter poses that question in chapter 5, the most frequently cited chapter in the book. As he explains, The principal contribution of courts to dispute resolution is the provision of a background of norms and procedures, against which negotiations and regulation in both private and governmental settings takes place (p. 121). Galanter argues further that the normative influence of courts depends only partially on what courts do but also on the resources and capacities of their various audiences (p. 118). Research on the impact of the infamous hot coffee case — in which an 85-year-old woman sued McDonald’s for severe burns suffered when she spilled coffee on herself — illustrates this idea well. As analyzed by Haltom and McCann (2004), conservative interest groups pushing the agenda of tort reform seized on this single case as an exemplar of what was wrong with the tort system in the U.S., a system that allegedly encouraged and rewarded frivolous litigation.

By mobilizing the media around this case and distorting the facts, the groups succeeded in changing state tort laws to the benefit of corporate defendants and, as recent research shows (Malhotra, 2015), they changed public opinion as well. Further, these tort reform statutes — with their caps on non-economic damages — altered the incentive structure for plaintiffs’ lawyers, especially in the area of medical malpractice, resulting in fewer claims filed and clients lacking legal recourse to sue for their injuries (Daniels and Martin, 2015).

Thus, there is a recursive element to how courts operate in society. Messages that emerge from courts affect and shape what kinds of injuries and problems will enter into court. Chapter 7 picks up on this idea through its exploration of the different meanings in the concept of a case. Here Samuel Krislov probes the distinct theoretical implications for each meaning. He also proposes how trial courts can encourage certain causes as legal actions by ruling who can litigate and who cannot. Examples in recent years include legal claims against tobacco companies by injured smokers or claims against gun manufacturers by crime victims. Research by Lytton (2008) on cases against the Catholic Church filed by boys who were sexually abused by priests shows how judges, simply by allowing the suits to proceed, legitimized the claims and encouraged other victims to go to court as well. Political leaders have an interest in defining the number and kinds of cases that can be heard in court. Too few cases could lead to popular dissatisfaction, while too many could overburden the system or create political instability.

The question of how and why individuals come to define their problems as legal claims is considered in chapter 6. Here, Keith Boyum analyzes the various studies of legal needs done at that time and discusses circumstances that might especially encourage legal claims. While his discussion takes a rational actor approach looking at the costs and benefits of formal legal recourse, recent research on this question has invoked several different theories, drawing for example on studies of claiming done in England, Scotland, Japan, and elsewhere. Cultural approaches emphasize legal consciousness or normative views of litigation (Ewick and Silbey, 1998). By contrast, institutional approaches to explain how problems or injuries become legal claims focus on the alternatives available to citizens, such as the availability of lawyers (Murayama, 2012). And new work by Engel (2013) proposes the use of psychological perspectives, particularly lessons from research on human cognition, to address the question of why people sue — and, even more, why they don’t sue.

A third question about courts underlies the chapters in Part I, namely, what concepts are most useful for comparing courts across time and space? Identifying key units of analysis is crucial for collecting and interpreting empirical data for longitudinal or comparative research. One approach, taken by Donald Black and M. P. Baumgartner in another widely cited chapter (4), is to focus on the different kinds of third parties who intervene in disputes. They propose a typology of twelve third-party roles that vary according to their partisanship and their degree of intervention in the conflict. This theory argues for the importance of relative status and relational distance for understanding the roles of supporters and settlement agents. In an interesting application of the theory, Cooney (1994) studied the social origins of evidence in court cases. Instead of thinking of evidence as purely objective, his research demonstrates the need to consider how social relationships and status influence the nature and amount of evidence introduced in court.

As an alternative to focus on third-party roles, Lawrence Friedman looks at underlying social structure in chapter 2, comparing courts in simple to more complex societies and then examining trends in litigation according to the type of society. Providing a comprehensive survey of studies at the time, he notes the general trend from informal courts to formal rationality to the more recent emphasis on substantive rationality, following a Weberian trajectory. Friedman’s conclusion on the global importance of courts was uncannily prescient: The court customs of the American tribe may well spread throughout the world, like Hollywood movies or Coca-Cola (p. 47). Indeed, current examples of this phenomenon include the spread of trial juries and other forms of lay participation in legal decision making (Hans, 2003), the increased judicialization of politics (Shapiro and Stone-Sweet, 2002), and the use of judicial review by constitutional courts (Ginsburg, 2003).

Another approach to comparing courts, suggested by Barbara Yngvesson and Lynn Mather in their chapter (3), focuses on contextual features of dispute processing such as specialization of language, openness to the public, or simplicity of organization. These features influence the ability of different actors to control the transformation of disputes, a concept they argue is central to understanding the relation between disputing and political order. Through dispute transformation, the form or content of the dispute changes in ways that bring other interests (especially broader political interests) to bear on individual conflicts. This chapter implicitly challenges the evolutionary perspective in Friedman’s work and instead stresses continuities and similarities between dispute processing in different types of societies. Throughout the world, adjudication in court is rare by contrast to the more common informal practice of mediation (Shapiro, 1980).

Another question about courts, addressed in the final section of the book, asks: how can organization theory help us understand the functioning of courts? Herbert Jacob mines organizational theories in chapter 8 to produce a rich set of ideas for court researchers to consider. The degree of hierarchy, impact of recruitment and socialization of personnel, boundaries between courts and their environment, and types of communication are just some of the issues he explores. Seeing courts as different kinds of complex organizations operating in historically specific eras, Seron (1990) shows how their organizational practices affect litigation, especially for federal trial courts. A noteworthy recent comparison of state trial courts across the U.S. by Ostrom et al. (2007) finds organizational variables of sociability and solidarity to explain a good deal of the variation in courts.

In the final chapter, Malcolm Feeley and Mark Lazerson take an interorganizational perspective and examine the significance of relations between police and prosecutors. Their conclusion — that the police play an important role in affecting the disposition of criminal cases in the courts (p. 217) — surely strikes a salient note. For the past year, much of the U.S. has been shocked by the lack of punishment for police officers who killed unarmed black suspects in Ferguson, Missouri; Cleveland, Ohio; and Brooklyn, New York. These incidents revealed the ongoing nexus between prosecutors and law enforcement, an interdependent relationship that makes it difficult for one organization to initiate sanctions against a member of another, even for misconduct.

CONCLUSION

By highlighting a few of the theoretical issues raised in Empirical Theories About Courts and pointing to some illustrations of their contemporary value, I have tried to suggest why the book is still timely. In rereading the text, although I winced at a few cringeworthy lines (some of them my own)² and tired debates, overall I came away impressed by the theoretical reach of the chapters and their relevance for empirical research today. The book poses significant — and still unanswered — questions about trial courts, and I hope that other scholars will find it useful.

LYNN MATHER

SUNY Distinguished Service Professor

SUNY Buffalo Law School

June, 2015

REFERENCES

Cooney, Mark (1994) Evidence as Partisanship, Law & Society Review 28:833.

Daniels, Stephen and Joanne Martin (2015) Tort Reform, Plaintiffs’ Lawyers, and Access to Justice. Lawrence, KS: University Press of Kansas.

Engel, David M. (2013) Perception and Decision at the Threshold of Tort Law: Explaining the Infrequency of Claims, DePaul Law Review 62:293.

Ewick, Patricia and Susan S. Silbey (1998) The Common Place of Law: Stories from Everyday Life. Chicago: University of Chicago Press.

Ginsburg, Tom (2003) Judicial Review in New Democracies: Constitutional Courts in Asian Cases. New York: Cambridge University Press.

Haltom, William and Michael McCann (2004) Distorting the Law: Politics, Media, and the Litigation Crisis. Chicago: University of Chicago Press.

Hans, Valerie P. (ed.) (2003) Special Issue: Lay Participation in Law. Law & Policy 25 (2).

Lytton, Timothy D. (2008) Holding Bishops Accountable: How Lawsuits Helped the Catholic Church Confront Clergy Sexual Abuse. Cambridge, MA: Harvard University Press.

Malhotra, Neil (2015) An Empirical Analysis of Tort Tales: How Cultural Memes Influence Attitudes on Tort Reform, Journal of Law and Courts 3:149.

Murayama, Masayuki (2012) Reconsidering the Japanese Way of Dispute Resolution: What Is It and Why, in Tom Ginsburg and Harry N. Scheiber (eds.), The Japanese Legal System: An Era of Transition, pp. 67–87. Berkeley, CA: The Robbins Collection of Berkeley Law.

NILECJ (1978) Criminal Justice Research Solicitation: A Research Program to Develop Empirical Theories About Courts. Washington, DC: National Institute of Law Enforcement and Criminal Justice, Law Enforcement Assistance Administration, U.S. Department of Justice.

Ostrom, Brian J., Charles W. Ostrom, Roger A. Hanson, and Matthew Kleiman (2007) Trial Courts as Organizations. Philadelphia: Temple University Press.

Seron, Carroll (1990) The Impact of Court Organization on Litigation, Law & Society Review 24:451.

Shapiro, Martin (1980) Courts: A Comparative and Political Analysis. Chicago: University of Chicago Press.

Shapiro, Martin and Alexander Stone-Sweet (2002) On Law, Politics, and Judicialization. New York: Oxford University Press.

NOTES

1  Other than correcting printing errors and minor editing of chapter 3, and the addition of this Preface and Keith Boyum’s Afterword, this edition is identical to the original 1983 book. Also, some of the references in the Bibliography that were shown as forthcoming have been updated to supply their final citation. Finally, we have included new biographical summaries (here) to supplement the original ones (found here).

2  For example, none of us used gender neutral language to describe lawyers and judges. And many of the authors (including myself) used the passive voice far too often.

Preface

1983

Each of the essays in this volume stems from work that was sponsored by the National Institute of Justice under the rubric, A Research Program to Develop Empirical Theories about Courts. As that title makes clear, the product sought was explanatory generalization and theory development, not the collection of data or the solution of specific court problems. As such, these essays may seem an unusual choice for National Institute of Justice sponsorship. A few words about the genesis of these essays are thus in order.

A number of voices had been heard in 1977 urging the National Institute of Law Enforcement and Criminal Justice (NILECJ, predecessor of the National Institute of Justice) to reform its programs of sponsored research. A goal urged by many in the research community was theoretically well-founded research that might lead to integrated understanding of issues involving crime and the administration of justice. In early 1978 the Adjudication Division of the NILECJ sponsored a one-day conference to which a number of researchers from various parts of the United States and Canada were invited. The question posed was how best to respond to these calls for reform; a consensus reached in the conference was that the time was ripe for explicit theorizing about courts.

Awards were made in 1978 for research that was in each instance underway by 1979. Although several different awards were made, coordination among grantees was sought and facilitated through the good efforts of Dr. Carolyn Burstein of the National Institute of Justice. Principal events in the coordination effort were two meetings attended by all of the grantees at Northwestern University in May 1979, and at Stanford University in November 1979. At these seminars, participants exchanged views that gradually moved from the stage of preliminary sketches to the stage of relatively well-developed ideas, and the unanimous opinion among participants was that the seminars were especially helpful.

As the essays were completed, commented on, and revised, some apparent coordination among them emerged. Occasionally explicitly, but in fact more frequently implicitly, the essays began to speak to each other. In view of that, a mutual decision was reached to jointly publish the essays in an edited book. Subsequently, the essays were further revised, edited, and assembled in the forms presented here.

Interestingly, the initial NILECJ research solicitation did not specify particular approaches to empirical theory building, nor did it limit the scope of topics to be covered (except in requiring some pertinence to trial courts). But if variety, all else equal, is to be sought, it was achieved in good measure in these research efforts. Represented in this volume are scholars from eight different institutions and from four different disciplines—political science, law, sociology, and anthropology. The perspectives of legal history and organizational theory are also developed in several of the chapters.

For conceptualizing, initiating, and, in the early stages, shepherding this project we owe thanks to Carolyn Burstein. There would have been no such project as this without her interest and energy. We are also very grateful to Jonathan Katz for ably picking up the administrative reins on our projects after Dr. Burstein left the National Institute of Justice. This may be an appropriate place to note that this book, like the individual essays, represents the views only of those to whom they are attributed, and do not necessarily represent the views of the National Institute of Justice or the U.S. Department of Justice.

For their special efforts in hosting our seminars we are grateful to Professors Herbert Jacob and Lawrence Friedman. Our stays and our sessions at Northwestern University and at Stanford University were pleasant and productive, but would not have been so without their good offices.

Our editor at Longman, Irving Rockwood, has been patient, affable, and helpful, and we are grateful. We also thank our production editor at Longman, Joan Matthews, for her assistance. The substantive editing was shared equally to the extent possible between the co-editors. Thus our names are simply listed in alphabetical order. If there is any merit or credit that should accrue to the editors, it is equally shared, but should any demerit or criticism be offered to one of the editors, it will cheerfully be attributed wholly to the other.

Keith Boyum would like to acknowledge the good help he received in preparing manuscripts at California State University, Fullerton. Bea Halphide and Dorothy Daversa of the Department of Political Science were willing in every instance, and were always especially competent. Lynn Mather is similarly grateful for the help in manuscript preparation she received at Dartmouth College. Deborah Hodges, in particular, provided excellent assistance, and proved especially graceful under pressure. We also appreciate the financial support of the Faculty Research Committee at Dartmouth College.

Keith O. Boyum   

Lynn Mather        

About the Authors

1983

[Updated biographical summaries, 2015, appear following the new Afterword to this edition.]

M. P. Baumgartner, who holds a Ph. D. in sociology from Yale University, is a Research Associate at the Center for Criminal Justice, Harvard Law School. With Donald Black, she is currently engaged in a cross-cultural survey of dispute settlement and social control. Results of one of her earlier projects, an investigation of conflict and its management in a suburb of New York City, will appear shortly in a book entitled The Moral Order of a Suburb (to be published by Academic Press). She is also co-editor of the second edition of The Social Organization of Law (with Donald Black; Academic Press, 1983).

Donald Black is Lecturer on Law and Sociology at Harvard Law School and Research Associate at the Center for Criminal Justice, a research facility of Harvard Law School. His publications include The Behavior of Law (Academic Press, 1976), The Manners and Customs of the Police (Academic Press, 1980), The Social Organization of Law (Academic Press, second edition with M. P. Baumgartner, 1983), and Toward a General Theory of Social Control (Academic Press, 1983).

Keith O. Boyum is Professor of Political Science at California State University, Fullerton. His research has centered on the influx and processing of civil cases in courts. With Samuel Krislov, he co-edited Forecasting the Impact of Legislation on Courts (National Academy Press, 1980). Recent articles he has written have been on that topic as well as on understanding delay in trial courts.

Malcolm M. Feeley is a political scientist teaching at the University of Wisconsin. He has also taught at New York University, Yale, and the University of California at Berkeley. He is the author of The Process Is the Punishment (Russell Sage Foundation, 1979), The Policy Dilemma (with Austin Sarat, University of Wisconsin, 1981), and other studies of court processes. Most recently he edited (with Roman Tomasic) Neighborhood Justice: Assessment of an Emerging Idea (Longman, 1982).

Lawrence M. Friedman is Marion Rice Kirkwood Professor of Law at Stanford University. He is the author of A History of American Law (Simon and Schuster, 1973), The Legal System: A Social Science Perspective (Russell Sage Foundation, 1975), and many other books and articles on law. His recent work has included a number of quantitative, historical studies of the work of courts. He is a recent former President of the Law and Society Association.

Marc Galanter, Professor of Law and South Asian Studies at the University of Wisconsin, Madison, has been Editor of the Law and Society Review and is President-Elect of the Law and Society Association. He has written a number of articles about courts and litigation in India and in the United States.

Herbert Jacob is Professor of Political Science and Urban Affairs at Northwestern University. He has written extensively about courts and criminal justice. Among his recent monographs are Felony Justice (with James Eisenstein, Little Brown, 1977), Crime and Justice in Urban America (Prentice-Hall, 1980), Crime and Governmental Responses in American Cities (with Robert L. Lineberry, National Institute of Justice, 1982), and Crime in City Politics (with Anne Heinz and Robert Lineberry, Longman, 1983).

Samuel Krislov is Professor of Political Science at the University of Minnesota, and formerly was department chairman. He is a past President of the Law and Society Association and of the Midwest Political Science Association, and at one time edited the Law and Society Review. As a Guggenheim Fellow in 1979–80 he devoted considerable attention to court case loads. His present interests include problems of compliance with emerging European Economic Community law, which he pursues as a Bush Fellow and as a Senior Fulbright Research Fellow.

Mark Lazerson is a graduate of the New York University School of Law, and practiced criminal defense work in New York City for several years before studying sociology at the University of Wisconsin. He is the author or co-author of several articles, including In the Halls of Justice the Only Justice is in the Halls, in The Politics of Informal Justice (Academic Press, 1982). He has conducted research on law and labor unions in Italy as a Fulbright Fellow.

Lynn Mather is Associate Professor of Government and Chair of the Urban Studies Program at Dartmouth College. She is the author of Plea Bargaining or Trial? (Lexington, 1979) and various articles on the administration of criminal justice. Her most recent research and writing has been on the transformation of disputes.

Barbara Yngvesson, Associate Professor of Anthropology at Hampshire College, has published articles on dispute processing, law in nonindustrial societies, small claims courts, and the transformation of disputes. She is currently engaged in ethnographic research on dispute transformation in a lower criminal court.

Empirical

Theories

About Courts

1

Introduction: Toward Empirical

Theories About Courts

Keith O. Boyum

The title of this volume includes three crucial terms: empirical, theory, courts. While most readers have some previous acquaintance with these terms, not all may be familiar with the special meanings for the terms that social scientists intend. To illustrate special meanings and also to set the stage for the chapters that follow, we begin with a review of the terms in our title.

The term empirical refers to observed phenomena.