Chapter Topics
Legal Mobilization
Court Caseloads
Party Capability
The Adjudicatory Process
Traditional versus Policy Lawsuits
Interest Groups in Court
The Media and the Legal System
Legal Mobilization
• Legal mobilization refers to the process
by which a legal system acquires its cases
• the state (public actors) and individual
litigants set the agenda of the judicial
branch
• the United States judiciary is largely
passive, requiring action by others for it to
become involved in disputes
• what becomes a legal dispute is a very
important question
Third Party Alternatives to Court
• Courts are merely one place where
disputes are resolved. It is useful to
compare courts to other mechanisms
citizens use to resolve disputes.
Identifying Characteristics
• some disputes are resolved by people in a
community with special (high) standing
(e.g., religious leaders)
• others are resolved by specially trained
arbitrators or mediators
• more specialized than judges
Third Party Alternatives to Court
Private versus Public
• level of connection to the government
• many dispute processing institutions are
private (e.g., student discipline boards)
• may lack authority to enforce their
decisions
• the police are an example of a public
dispute resolving mechanism
• police spend a great deal of energy trying
to maintain public order (versus enforcing
the law)
Third Party Alternatives to Court
Settlement Role
• Mediators work to get both sides to see
the other’s point of view
• Mediation is where the parties reach an
agreement that is satisfactory to each and
with which they comply.
• Arbitration is similar to mediation except
the parties agree ahead of time to be bound
by the decision
• Courts make decisions and enforce them
others try to encourage compliance
Third Party Alternatives to Court
Level of Formality
• Some attempts to resolve disputes work
with a very informal structure (e.g.,
marriage counselors)
• Others, like courts, have very formal rules
and procedures
• Courts are among the most formal
institutions compared to arbitration,
mediation and other private citizens
Third Party Alternatives to Court
Control by the Parties
• dispute settlement mechanisms offer the
parties varying degrees of control over the
outcome
• during mediation the parties must agree
to the outcome or there is no resolution, in
arbitration they agree in advance (i.e., give
up some control), and in courts there is very
little control by the parties. The court’s
order will be final and controlling.
Court Caseloads
• most disputes will never turn into a
lawsuit!
• are we experiencing a litigation explosion?
• court caseloads go up and down over
time, resulting in reaction by the judiciary
• not all cases are the same, we must look
carefully at judicial statistics
• of the 90 million cases filed every year,
approximately 60% are traffic related,
misdemeanors or small-claims
Party Capability
• Court cases differ in the capabilities of the
parties involved
• Galanter (1974): resources are important
• One-shotters – litigants who only
occasionally appear in court
• Repeat players – bring cases frequently
• some may refer to the two groups as
the “haves” (repeat players) and “havenots” (one-shotters) to denote primarily
their financial resources/experience
Party Capability
• Repeat players are experienced in court
and have considerable resources, therefore
they are more likely to win in court
• a lawsuit may pit repeat players v. oneshotters (criminal cases), one-shotters v.
repeat players (personal injury lawsuits),
one-shotters v. one-shotters (divorce),
repeat players v. repeat players
(government against government cases)
• Galanter offers a theory of case disposition
involving party capability – widely
tested/used
Routine Administration
• many cases filed in court are not complex,
in these cases routine administration
means the court has no disputed question of
law, the court is merely asked to formalize a
settlement
• uncontested divorce is an example (other
examples may include probate or mortgage
foreclosure)
• these cases are resolved quickly and with
relatively little effort by the courts
Procedural Adjudication
• cases that reflect the adversarial model
• Procedural adjudication involves four
key elements:
• judges and lawyers search for
applicable law
• relies on formal rules of evidence
• exhaustive exploration of all facts,
evidence, etc.
• assumes all parties are preparing for
trial
Procedural Adjudication
• Tort cases are a typical example of
procedural adjudication
• lawyers spend time preparing for trial,
but rarely end up in court– but prepare
as if they will
• The higher the stakes in the case (criminal
case with heavy penalties or torts) the more
likely the parties are to engage in
procedural adjudication
Decisional Adjudication
• involves cases where the law is clear and
the facts are straightforward
• in decisional adjudication judges seek
to rapidly establish the relevant facts and
expeditiously apply the law
• emphasis is on the quick resolution
• many litigants appear pro se
(representing themselves)
• Small-claims courts are an example of
decisional adjudication (others are traffic
cases, ordinance violations, etc.)
Diagnostic Adjudication
• focuses on determining the cause of the
problem rather than just settling the case
• often involves nonjudicial personnel in
defining issues (e.g., professional experts
such as psychiatrists or social workers)
• a good example is juvenile court where
the focus is on what is best for the juvenile
• sentencing decisions also involve
diagnostic adjudication
• a difficult area for courts because the law
offers less guidance in this area
Traditional versus Policy Lawsuits
• focuses on the scope of the lawsuit
Traditional litigation involves (most case):
• Single plaintiff and defendant
• litigation is retrospective
• plaintiff seeks compensation for past
wrongs
• lawsuit is a self-contained episode
• once case is over, judicial involvement
ends
Traditional versus Policy Lawsuits
Policy litigation involves (fewer but
important cases):
• multiple plaintiffs and defendants
• litigation is future oriented
• plaintiff seeks more than compensation
• lawsuit has broad ramifications, affects
other parts of society
• the court may stay involved
Traditional versus Policy Lawsuits
• policy litigation is growing in importance
and these cases attract a lot of attention
• may be private or public
• in the private sphere are recent cases
involving automobile manufacturers and
fast food restaurants
• in the public sphere are cases against
the government such as Brown v. Board
of Education (1954) involving racial
discrimination in public schools. Other
cases include, abortion, prison
conditions, etc.
Interest Groups in Court
• Interest groups are an important part of
legal mobilization in the United States
• they might sue to promote the interests
of their members
• offer advice to the courts on issues
presented in cases
• recommend possible judges to office
holders
• mobilize voters in judicial elections to
influence the judiciary
Why Interest Groups Litigate
• traditionally interest groups litigate
because they are disadvantaged in the
legislative or executive branch
• courts are seen as better protectors of
minority rights
• recently, interest groups have been going
to court because they see opportunity to
influence policy (favorable judges)
• powerful groups go to court to enforece
gains won politically
Interest Group Resources
• five resources are important to interest
groups in the courts:
• money $$$ (money wins)
• support from other organizations
(strength in numbers)
• longevity (victories come slow and over
time in the courts—passive and reactive)
• expert legal staff (knowledge wins)
• extralegal publicity (ability to share
message and influence decision makers)
Interest Group Strategies
• interest groups use four different
strategies to influence courts:
Direct Sponsorship
• interest groups may directly sponsor a
case, providing lawyers, paying for
expenses, etc. (Brown v. Board of Education
1954)
• most research has focused on the high
profile case sponsorship of interest groups
• mixed success because so few cases make
it to court
Interest Group Strategies
Amicus Curiae Briefs (friend of the court)
• filed by an interest group to make their
views known to the court
• offers possible legal arguments, data,
expresses a point of view about how a case
should be resolved
• less expensive (considerably) than case
sponsorship
• an increasingly popular tool of interest
groups—widely used
Interest Group Strategies
Class Actions
• a lawsuit brought by a person or an
interest group on behalf of all people
similarly situated
• are common among policy oriented
lawsuits
• interest groups help sponsor the case and
mobilize the individuals in the class
• often used in product liability cases
• a source of many “litigation explosion”
concerns
Interest Group Strategies
Judicial Nominations
• interest groups would like to determine
who gets appointed/elected to the bench
(thinking this will lead to a favorable judicial
climate)
• interest groups are increasingly active at
the federal and state levels in trying to
influence who becomes a judge
• Supreme Court vacancies are now a
major focus of liberal and conservative
interest groups
The Historical Relationship
• the relationship between the medial and
the courts is important
• the sixth amendment protects public
access to trials
• print access was guaranteed early
• but other forms of coverage, pictures,
television, internet, etc. have had more
difficulty getting established
• balance free and open access to court
activities with fair trial concerns
Televised Coverage
• Court TV began in 1991!
• concerns were about whether courtroom
participants would “perform” for the
cameras
• this concern still exists but doesn’t
appear to have become a reality
• most state courts allow some type of
video and audio recording
• federal courts continue to ban cameras
and audiotaping devices
New Uses for the Internet
• the internet is the latest technology
challenging courts to look forward
• courts are using the internet to
communicate to the public and increase
understanding of the legal system
• the internet is also being used to mobilize
the legal system—providing wide
dissemination of legal information that used
to be held by small numbers of lawyers
• technology will continue to challenge the
courts
Conclusion
• legal mobilization can fundamentally
change public and private life
• disadvantaged and advantaged groups
turn to the legal system
• increasingly the legal system is viewed by
interest groups as a place to try and
influence politics
• court cases vary tremendously—party
capability, type of adjudication and scope of
influence