NCJ Number
93224
Journal
California State Bar Journal Volume: 51 Issue: 4 Dated: (July 1976) Pages: 281-286,311-320
Date Published
1976
Length
16 pages
Annotation
An historical review of dispute settlement mechanisms indicates that courts have dealt less and less with the 'small injustices' suffered daily by the masses, and efforts to resolve disputes through alternative mechanisms have had mixed results. It is the task of an activist bar to develop legal forums capable of resolving disputes between unequal parties with both fairness and credibility.
Abstract
Historically, courts in the United States have been forums for settling grievances, until about the middle of the 19th century, when demands upon the courts gradually changed their function from dispute settling to facilitating economic transactions. Simultaneously, lawyers found that business clients were more lucrative sources of income than ordinary citizens. There have been three major approaches proposed for handling everyday grievances: small claims court, public regulation, and government-funded legal services for the poor. Further, a variety of procedures have emerged that rely less on assessing blame and more on consensus. Small claims courts are seldom used by individual citizens, and public regulation has a poor record of tough preventive measures. Legal aid services have had neither the resources nor the mandate to create institutions for resolving daily grievances. The basic demand continues to be for situational justice -- solutions that deal equitably with the parties without extensive reliance on precedent, technical rules, or formal procedures. Currently, there is little incentive for lawyers to create new legal institutions to facilitate the resolution of disputes outside courtrooms. What is needed is an activist bar that will organize to encourage and support structural change when there is ample evidence of need and options for improvement. Possibilities include education, prevention, simplification, and forum creation, as well as broadened legal representation. Lawyers should spearhead the effort to experiment with alternative forums for resolving disputes between people whose relationships are ongoing and thus subject to mediated solutions. Forty-three references are listed.