WHO WINS? (FROM AMERICAN COURT SYSTEMS - READINGS IN JUDICIAL PROCESS AND BEHAVIOR, 1978, BY SHELDON GOLDMAN AND AUSTIN SARAT - SEE NCJ-55128)

• NCJ Number: 55135
• Author(s): M GALANTER
• Date Published: 1978
• Length: 6 pages
• Corporate Author: W H Freeman and Co
• Publication Format: Document
• Language: English
• Country: United States of America
• Note: REPRINTED FROM LAW AND SOCIETY REVIEW, V 9 (1975), P 357-364

Annotation

POSSIBLE EXPLANATIONS FOR FINDINGS THAT LITIGATION IS UNDERTAKEN MORE OFTEN AND MORE SUCCESSFULLY BY BUSINESS AND GOVERNMENT ORGANIZATIONS THAN BY PRIVATE INDIVIDUALS ARE CONSIDERED.

Abstract

A BRIEF REVIEW OF STUDIES OF CIVIL LITIGATION IN VARIOUS JURISDICTIONS SUPPORTS THE SURMISE THAT ORGANIZATIONS ARE MORE SUCCESSFUL AS PLAINTIFFS AND AS DEFENDANTS THAN ARE INDIVIDUALS, AND THAT LITIGATION IS INITIATED PRIMARILY BY ORGANIZATIONS. ORGANIZATIONS ENJOY GREATER SUCCESS AGAINST INDIVIDUALS THAN AGAINST OTHER ORGANIZATIONS. INDIVIDUALS FARE LESS WELL CONTENDING AGAINST ORGANIZATIONS THAN AGAINST OTHER INDIVIDUALS. IN GENERAL, THE COURTS OF THE UNITED STATES APPEAR TO BE FORUMS USED BY ORGANIZATIONS TO EXTRACT FROM AND TO DISCIPLINE INDIVIDUALS. IT MAY BE THAT ORGANIZATIONS, WHICH USE THE COURTS MORE OFTEN THAN INDIVIDUALS, ENJOY CERTAIN STRATEGIC ADVANTAGES IN LITIGATION. OR IT MAY BE THAT INDIVIDUALS FARE LESS WELL BECAUSE EITHER THEY OR THEIR CAUSES ARE THE TARGETS OF JUDICIAL BIAS, CONSCIOUS OR UNCONSCIOUS. ANOTHER POSSIBILITY IS THAT THE COURTS ACTUALLY TREAT ORGANIZATIONS AND PRIVATE INDIVIDUALS IN THE SAME FASHION, BUT THAT ORGANIZATIONS BRING MORE CASES THAT ARE EASY TO WIN, SUCH AS DEBT COLLECTION CASES. A MORE REFINED VERSION OF THIS SELECTION HYPOTHESIS IS THAT ORGANIZATIONS PRESENT NOT ONLY DIFFERENT KINDS OF CASES BUT BETTER CASES--CASES IN WHICH THE EVIDENCE IS STRONGER, THE CLAIM BETTER STATED, OR THE DEFENSE MORE IRONCLAD. PERHAPS THE OBSERVED DIFFERENCES BETWEEN ORGANIZATIONS AND INDIVIDUALS CAN BE EXPLAINED PARTIALLY IN TERMS OF QUANTITY AND QUALITY OF LEGAL SERVICES, WHICH IS ONE VEHICLE THROUGH WHICH DIFFERENCES IN THE LITIGATION CAPABILITIES OF ORGANIZATIONS AND INDIVIDUALS HAVE EFFECT. FOR A FULL EXPLANATION OF THE DISTRIBUTION OF LITIGATION IN SOCIETY, IT IS NECESSARY TO GO BEYOND DISTINCTIONS IN THE CHARACTERISTICS OF LITIGANTS TO EXPLORE THE RELATION BETWEEN PLAINTIFFS AND DEFENDANTS--WHETHER THEY ARE STRANGERS OR INTIMATES, WHETHER THEIR RELATIONSHIP IS EPISODIC OR ENDURING, SIMPLE OR COMPLEX. SUPPORTING DATA FROM THE STUDIES REVIEWED ARE INCLUDED, TOGETHER WITH A LIST OF REFERENCES. (LKM)