DEMANDS FOR COURT SERVICES IN DISPUTE RESOLUTION
Americans take many issues and troubles to courts (Haltom and McCann, 2004).
Lawsuits and other legal actions are much more common in the United States than in other nations. On a related note, the United States has some 1.3 million attorneys, with a rate of about 1 lawyer for every 300 citizens, which is one of the highest rates in the world. Although the United States has only about 4.5% of the world’s population, it accounts for more than two-thirds of all the world’s lawyers. Along with a very high rate of attorneys, the United States also has a high rate of litigation. The annual number of civil lawsuits today is much, much higher than a few decades ago, as is the monetary cost of this litigation.
Several reasons explain the increase in civil litigation over time. Americans today tend to accept that being sued is the price of freedom, and they seem more fascinated by litigation than people in any other society. In a sense, litigation is a form of entertainment, and a favorite indoor activity is to see due process take its course on television as evidenced by the enormous onslaught and popularity of law-related programming (Zobel, 1994). Some scholars argue that lawsuits are good for America (Bogus, 2001). For instance, product liability litigation has saved countless lives, brought critical information to light (along with product labels that warn us about almost everything that could be potentially harmful), forced manufacturers to make products safer, and driven off the market unreasonably dangerous products when regulatory agencies or Congress lacked the political will to do so (Koenig and Rustad, 2004).
Another reason for the rise in civil litigation is the increase in the number of lawyers since the 1960s (Nelson, 2009). Basically, the more lawyers there are, the greater is the quantity of litigation. The increase in the number of lawyers increases competition among lawyers and reduces a variety of costs, such as the cost of retaining an attorney and lower contingency fees. This lower cost to the litigant increases the demand for lawyers.
An additional explanation for the increase in the number of cases reaching the courts may be that although the number of litigants has not increased, the relatively few individuals or organizations (that is, repeat players) who typically use courts to settle disputes have in recent years simply found more occasion to do so. This resulted in a kind of assembly-line litigation aided by all-but-automated computerized litigation packets that are now available for products ranging from handguns to tires (France, 2001).
The increase in litigation is also related to the increase in the range and variety of legally actionable or resolvable problems:
As the scope of law expands, as more legal rights and remedies are created, the amount of litigation increases as a result of the new opportunities for court action. As new rights are created, litigation may be necessary to clarify the way in which those rights will be defined and understood by the courts. Furthermore, the creation of new rights may direct the attention of organized interest groups to the judiciary. Interest groups may come to perceive litigation as a viable strategy for stimulating group mobilization to achieve the group's political goals.
(Goldman and Sarat, 1978:41)
Sheldon Goldman and Austin Sarat (1978:41-43) identify three generic factors that may explain litigation. The first they call social development. Societal variation in the frequency of litigation is a function of changes in the level of complexity, differentiation, and skill of the society in which courts operate. Social development and changes in the structure of society bring about increased reliance on courts to process disputes. In less-developed societies, which feature stable and enduring contacts among individuals, disputes are easier to resolve informally. Consequently, courts play a less important role in disputes.
In more complex societies, relationships are typically more transitory, and disputes often occur between strangers. Furthermore, in developed societies, there is no longer a single dominant ethos or a set of customs. Under these circumstances, informal dispute processing is impractical.
The second generic factor that explains why disputes are translated into demands for court services is subjective cost-benefit calculations on the part of disputants. For some disputants, the decision to use courts is a relatively objective, well-thought-out decision, because they weigh what they may lose against the possible benefits of doing nothing or of using different methods of conflict resolution. For others, however, resorting to courts may be an act “that has value because of its cathartic effect, even though it may not produce tangible, material benefits” (Goldman and Sarat, 1978:42). In such a situation, vindictiveness, spite, or the desire for a “moral victory” outweighs the lack of material rewards from litigation.
The third generic factor in litigation is the creation of more legally actionable rights and remedies by legislatures and courts. Goldman and Sarat state, “The greater the reach and scope of the legal system, the higher its litigation rate will be” (1978:42). To some extent, the expanded use of courts is attributable to the expansion of rights and remedies stemming from Supreme Court decisions. The growing scope of law increases litigation by expanding the jurisdiction of the courts. The creation of new rights is likely to stimulate litigation designed to vindicate or protect those rights.
For example, prisoners’ lawsuits increased after a 1964 Supreme Court decision let prisoners sue state correctional officials when conditions of confinement failed to meet constitutional standards. The Court had in mind complaints involving excessive force, inadequate medical treatment, and freedom of religious expression. This decision spawned many prisoners’ lawsuits regarding these and less serious matters (Cox, 2009). As another example, the 1973 Supreme Court decision in Roe v. Wade invalidating statutes prohibiting abortions led litigation concerning such issues as whether the federal government had to pay for abortion through Medicaid, whether hospitals receiving federal funds had to make facilities for abortions available, whether parents must consent to a minor’s abortion, and whether a husband can veto his wife’s decision to terminate a pregnancy (Lempert, 1978:97-98).