Abstract
The topic of this essay, at its broadest, is, what effect does social change have on the courts and the way they work?
Research underlying this paper was supported by Grant GS-33821, National Science Foundation, U.S.A. The opinions expressed are of course my own.
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Notes
Max Gluckman, The Judicial Process Among the Barotse of Northern Rhodesia (1955).
This is certainly true of appellate courts; less true perhaps of trial courts. Clearly, too, we are not speaking of hidden or subconscious motives which may move the court in its decisions. That is another and quite different matter.
Government owns property and makes contracts, and there are, therefore, many lawsuits, in which government is a party, as landlord, or tenant, or contracting party, that are cases of dispute settlement, because the governmental litigant is not acting in a governmental capacity.
Some of these, of course, are actions against the state in its capacity as land-owner or contracting party; these are simply treated here as dispute settlement cases. See n. 3 supra.
This remark is found in James Hewson, Every Man His Own Lawyer (1841), p. 6, among other places.
See the essay of José J. Toharia, this volume.
See the essay by Herbert Jacob, this volume.
See the essay of José Juan Toharia, this volume.
Britt-Mari Blegvad, P. O. Bolding, Ole Lando, Arbitration as a Means of Solving Conflicts (1973), pp. 103–105.
Civil Judicial Statistics 1904, p. 18.
Civil Judicial Statistics 1972, p. 19.
In California, many petty cases were brought before justice courts. Most of these records do not survive. A few cases may have been drained off into federal court, though the number is probably nor significant. See Lawrence M. Friedman and Robert V. Percival, A Tale of Two Courts, Litigation in Alameda and San Benito Counties, 10 Law and Society Rev. (1976).
In 6 of the 31 cases in 1890, the judge in this trial court wrote an elaborate opinion, citing authority and discussing the facts and the law rather thoroughly.
Shoreditch Minute Book, August-October 1859.
Durham County Court, P.R.O. AK2, No. 10, Plaint and Minute Book B, 1910–11, p. 18 ff.
Civil Judicial Statistics, 1870, xi. Plaintiffs won most first instance cases in High Court, too, but the percentages were not so overwhelming. Out of 2,319 cases in 1876, plaintiffs won a verdict in 1,341, defendants in 423; the remainder were held over, or nonsuited or withdrawn. Civil Judicial Statistics 1876, p. xxi.
The study is Craig P. Wanner, “The Public Ordering of Private Relations”, 9 Law and Society Rev. 293 (1975).
Civil Judicial Statistics, 1908, p. 18.
This is probably why the volume of litigation per thousand population is so much higher than in California counties.
Cnty. Ct., Newport and Hyde, Plaint. Bk. C., 1888–92, P.R.O. AK6, No. 23, pp. 51 ff. By 1916, the county had come to resemble Durham, in that many of the defendants were identified as “laborers.” P.R.O., AK6, No. 27.
Beatrice A. Moulton, “The Persecution and Intimidation of the Law Income Litigant as Performed by the Small Claims Courts in California”, 21 Stanford L. R. 1667 (1969).
Brian Abel-Smith and Robert Stevens, Lawyers and the Courts, A Sociological Study of the English Legal System. 1750–1965 (1967), pp. 33–35.
See further on this point the essays of Rolf Bender and Christoph Strecker, and of Marc Galanter, this volume.
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Friedman, L.M. (1976). Trial Courts and their Work in the Modern World. In: Friedman, L.M., Rehbinder, M. (eds) Zur Soziologie des Gerichtsverfahrens (Sociology of the Judicial Process). Jahrbuch für Rechtssoziologie und Rechtstheorie, vol 4. VS Verlag für Sozialwissenschaften, Wiesbaden. https://doi.org/10.1007/978-3-322-96982-8_3
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