1 Playground Daily News (Fort Walton Beach, Fla.), July 16, 1986, at 1, 3.Google Scholar

2 As a matter of law it is extraordinarily unlikely that a court would conclude that any of the astronauts had assumed the risk, since they had no subjective knowledge and appreciation of the specific risk which caused harm. See Page Keeton, Dan B. Dobbs, Robert E. Keeton, & David G. Owen, Prosser and Keeton on Torts. (5th ed. St. Paul: West Publishing Co., 1984).Google Scholar

3 Engel, David M., The Oven Bird's Song: Insiders, Outsiders, and Personal Injuries in an American Community. 18 Law & Soc'y Rev. 551 (1984), for one, seems to argue that there are certain definable groups of people who are more opposed to a litigious society, at least insofar as the litigiousness expresses itself in personal injury suits. Whether this is so is an open question.CrossRefGoogle Scholar

4 As Friedman notes in his discussion of the nature of objections to the law explosion, the objections come from both the left (further proof of a legitimization crisis in Western society) and the right (regulation is strangling democratic capitalism).Google Scholar

5 This is an extension of dram shop acts, which hold taverns liable for the subsequent torts of intoxicated patrons. See Keeton et al., Prosser and Keeton on Torts.Google Scholar

6 Coulter v. Superior Court, 21 Cal. 3d 144, 145 Cal. Rptr. 534, 577 P.2d 669 (1978); Gwinnell, Kelly V., 96 N.J. 538, 476 A.2d 1219 (1984); Mincks, Clark V., 364 N.W.2d 226 (Iowa 1985); But see, Raysinger, Klein V., 504 Pa. 141. 470 A.2d 507 (1983). Even more states have held the host liable where the intoxicated person who was served was a minor. See Gutman, Ronald Y., Drinking, Driving and the Social Host, 90 Case & Comment No. 6, at 3–8 (Nov.-Dec. 1985).Google Scholar

7 The unease of this group was shared by the California legislature, which passed a statute after the opinion in Coulter (note 6 above) declaring that social hosts are not responsible for their guests' behavior, and are not liable to third parties who are injured by the negligence of the guest. California Civil Code Section 1714 (as amended by Stats. 1978. ch. 929, § 2. at 2904).Google Scholar

8 See Galanter, Marc, Reading the Landscape of Disputes: What We Know and Don't Know (and Think We know) About our Allegedly Contentious and Litigious Society, 31 UCLA L. Rev. 4 (1983).Google Scholar

9 Friedman, asks, What is a law? Are all laws equal? Should we instead count “rules”? Which rules? Those of the New Orleans School Board? All of those common law rules made up by courts in areas such as torts? And what is a lawsuit? Any filing? Of course many filings go nowhere, but certainly counting cases which only go to judgment excludes too much. Maybe, suggests Friedman, we should look to a different unit and ask how much is spent on litigation or how much money changes hands because of litigation. And if we are interested in changes over time, we must be concerned with rates, controlling for population and incidence changes of one sort or another. See Lempert, Richard, More Tales from Two Courts: Exploring Changes in the “Dispute Settlement Function” of Trial Courts, 16 Law & Soc'y Rev. 513 (1978).Google Scholar

10 One obvious base rate is the number of lawyers, laws, and lawsuits per capita in other nations. By this measure most would agree that the United States has rates higher than most other Western societies. Of course whether having more is having too much is not an easy question to answer.Google Scholar

11 “[1]egal actors and institutions merely reflect what is happening in society as a whole” (at 5). Of course by this argument one may say (as certainly some do) that there is not too much cocaine because there is a demand for it. Below we will return to the issue of a demand model of the law explosion.Google Scholar

12 42 U.S.C. § 1983 provides a federal civil remedy for anyone who is deprived “of any rights, privileges, or immunities secured by the Constitution and laws by someone acting under color of law.” The statute has been at the center of complaints about the growth of federal cases. It has in some ways become an omnibus statute, providing access to federal courts for many individuals unhappy with the outcome of their encounters with state and local authorities, including prisoners, mental patients, persons adversely affected by local zoning board decisions, and others.Google Scholar

13 Increasingly, the objections have been accompanied by action. In torts, the area I know best, statutes designed to limit malpractice claims have been passed in several states. See Cal. Bus. & Prof. Code § 6144; Tex. Rev. Civ. Stat. Ann. art. 4590i § 11.02-.03. Legislation is proceeding through Congress designed to limit product liability recoveries. See Product Safety and Liability Reporter, vol. 14, no. 18 (May 2, 1986), at 3009 for the text of the Reagan Administration's proposed “Product Liability Reform Act of 1986.” Several states have also passed new, restrictive legislation in response to the “insurance crisis.” See Product Safety and Liability Reporter, vol. 14, no. 27 (July 4, 1986), at 473–74, for a summary of the new statutes in Florida and New Jersey. A 1986 USA Today article reported that 30 states had passed or introduced tort reform laws in response to the “insurance crisis.” USA Today, July 31, 1986, at 3A. In the past year several states have been added to that list.Google Scholar

14 This analysis seems to conform with the sense of unease expressed by the Bells and the sociologists in the two anecdotes that began this review. The complaints are about the erosion of “zones of immunity.” The host should not be liable for the negligent behavior of the guest. People who engage in very high risk enterprises should not sue when the risks turn into reality. I will return to this point in section C below.Google Scholar

15 This is, of course, part of the general argument that people in multiplex relationships are less likely to use formal law, with its legalistic, winner take all procedures. See John Griffiths, The Division of Labor in Social Control, in Donald Black, ed., 1 Toward a General Theory of Social Control 37–70 (New York: Academic Press, 1984).Google Scholar

16 “Legal culture, then, is a ‘network of values and attitudes … which determines when and why and where people turn to law or government or turn away.’ It is thus the immediate source of legal change, whatever the ultimate source may be …. In 1985, citizens of this country do not stand apart from the legal order; they confront it directly. They feel its impact more and more, and they turn to it with more and more requests and demands. This is the essence of the law explosion” (at 32).Google Scholar

17 Very large judgments are more common, and while most studies do not show a large rise in the size of the median judgment, the mean judgment has risen, due to very large recoveries at the top end of the scale (at 61).Google Scholar

18 More likely candidates for that role, would be the reduction of total accident costs. See Guido Calabresi, The Costs of Accidents (New Haven: Yale University Press, 1970), or even the earlier goal of distributing losses according to fault.Google Scholar

19 Efforts to explain this trend in public law with concepts such as legitimization crisis— Juergen Habermas, Legitimation Crisis (Boston: Beacon Press, 1975)—are not well received in this book (at 6–7).Google Scholar

20 In this part of the book Friedman introduces a new concept, “legal character.” Legal character refers to the part of the American character, “that specifically relates to legal behavior.” Legal character is made up of a cluster of legal-cutural traits (at 99). According to Friedman, “changes in legal culture affects the very ‘legal character’ of Americans” (at 97). However, the relationship between legal culture and legal character is never fully developed. In my judgment it would have been preferable to omit the idea of legal character.Google Scholar

21 “But school can and should explain that many groups dwell in this house, that no single moral code deserves total dominance, that there is no single correct slant on the story. Nobody owns the American dream simply because his ancestors came over on the Mayflower” (at 122).Google Scholar

22 Apparently, for instance, those who believe in a creationist version of the origin of the species would not receive equal time in textbooks. And, says Friedman, “It is difficult to imagine a textbook that would satisfy the millions who believe in Biblical morality; and at the same time satisfy those who assert gay pride or women's equality” (at 123). One senses that in a showdown between these two sets of values, Friedman would say that plural equality would call for the state to side against the millions, in part because they believe that homosexuality, if not the women's movement, is immoral, and, therefore, not just another of the many acceptable lifestyles. Yet clearly Friedman is uneasy with this outcome. In these passages he seems to find himself in a position similar to the one discussed by Joseph Tomain in the following passage. Some liberals espouse the belief that people are free to develop their lives as they see best without state intrusion. For these liberals, everyone's conception of the good life is equally valued. Consequently, the content of liberalism is bounded by the principle of neutrality. According to the neutrality principle, the state should remain silent regarding the good life. Liberals who argue for wide personal autonomy are caught in a contradiction. On the one hand, they espouse individual liberty as the guiding norm. On the other hand, they argue that the state must stay neutral regarding a conception of the good life. The dilemma is that this silent support for an individual's right to autonomy is inherently a picture of the good life defined by the state. Joseph Tomain, Constructing a Way Out of the Liberal Predicament (in Review Symposium: On Ackerman's Reconstructing American Law), 1985 A.B.F. Res. J. 345, 355.Google Scholar

23 If his examples are an indicator, Friedman uses an expansive definition of victimless crimes. He includes in his discussion in this area both the Mann “white slavery” Act and abortion. Of course prolife groups would disagree about this classification of abortion, and many people would also disagree about drugs, in light of the effects on families and on society at large.Google Scholar

24 Not everyone would agree with the demand model of changes in laws governing sexual behavior. See Genovese, Eugene, Law and the Economy in Capitalist America: Questions for Mr. Hunt on the Occasion of His Curti Lectures (in Review Symposium: The Work of Hunt, J. Willard), 1985 A.B.F. Res. J. 113, 118.Google Scholar

25 If I am wrong on this point, some, but not all of the rest of this essay is inapposite. Data on public opinion in this area is relatively limited. A Harris telephone poll done in May of 1986 asked a nationwide sample of 1,243 adults: “As you know, there have been a lot of questions asked lately about suits that are filed for damages against companies, towns and cities, doctors, accountants and other types these days. In general, do you think it is too easy or not for people to sue for damages when they think they have been injured or some wrong has been done to them?” In a forced choice answer, 69% said it was too easy to sue for damages, 24% said it was not too easy, and 7% were unsure. A majority of the sample agreed that the causes of an assumed litigation explosion were lawyers looking for contingency fees, people who figure they can make a lot of money from such suits, and laws which make it too easy to sue. It might be said, however that the survey was conducted at the height of the “insurance crisis” and was in many ways a biased instrument, designed to elicit negative comments about the presumed rise in litigation. For example, the question did not offer reasons such as “increased carelessness among manufacturers” for the assumed rise in lawsuits. A fairer survey, done during a somewhat calmer period, was conducted by Gallup for the Insurance Information Institute in early 1982. Of a sample of 2,013, 69% believed there were more suits than in the past, The respondents were asked: “Think for a moment about the reasons people have for starting lawsuits. As you see it, would you say that people who sue have a justified cause for doing so: about half of the time, more than half of the time, or less than half of the time?” Thirty-one percent of the respondents said less than half of the time, 41% said about half the time, and 24% said more than half the time, while 4% didn't know. This latter survey is quite extensive, and on several questions breaks down responses by gender, income, and age of the respondent. These attributes do not produce significant variation in the responses to the above question. Insurance Information Institute, Attitudes Toward the Liability and Litigation System 83–84 (New York: The Institute, 1982).Google Scholar

26 There are many other meanings of the word “responsible.” A key distinction in tort is between being responsible because one caused an event (strict liability) and being responsible because one was negligent. See H. L. A. Hart, Punishment and Responsibility: Essays in the Philosophy of Law (New York: Oxford University Press, 1968); Richard Lempert & Joseph Sanders, An Invitation to Law and Social Science (New York: Longman, 1986).Google Scholar

27 Emile Durkheim, Suicide: A Study in Sociology (New York: Macmillan, 1951).Google Scholar

28 Egoistic suicide is for Durkheim one of three types of suicide. The other two are altruistic suicide and anomic suicide. Egoistic and anomic suicide are not always easily distinguishable. For Durkheim's effort to do so see Emile Durkheim, Suicide 258.Google Scholar

29 For a discussion of aggregation problems in Durkheim see Hanan C. Selvin, Durkheim's Suicide: Further Thoughts on a Methodological Classic, in Robert A. Nisbet, Emile Durkheim 113–36 (Englewood Cliffs, N.J.: Prentice-Hall, 1965).Google Scholar

30 For a discussion of this problem in Durkheim see Jack D. Douglas, The Social Meanings of Suicide 41 (Princeton, N.J.: Princeton University Press, 1967); Alan Hunt, the Sociological Movement in Law 71 (Philadelphia: Temple University Press, 1978).Google Scholar

31 For example, at the 1986 annual meeting of the Law and Society Association, Martin Shapiro advanced the argument that Total Justice is a name for small redistributive efforts to help disadvantaged groups. The transfer is based upon the existence of a substantial surplus value. If the surplus goes down, the movement toward total justice will whither. There is less total justice in Russia, not because it is totalitarian, but because there is less surplus. “Total justice” may have natural limits if it grows to the point of being an incentive barrier, i.e., why produce if goods simply go to those with needs? Total justice is a “consumerism movement.” I almost certainly have done some disservice to Shapiro's argument, but it does express the general outlines of a different, more Marxist explanation of the law explosion.Google Scholar

32 Emile Durkheim, The Division of Labor in Society (New York: Macmillan, 1964).Google Scholar

33 On this view of The Division of Labor see, for example, Raymond Aron, 2 Main Currents in Sociological Thought 18 (Garden City, N.Y.: Doubleday, 1967); Robert K. Merton, Durkheim's Division of Labor in Society, in Nisbet, Emile Durkheim 105–12, at 111 (cited in note 29); Steven Lukes & Andrew Scull, eds., Durkheim and the Law 5 (New York: St. Martin's Press, 1983).Google Scholar

34 “In the second third of the twentieth century, the balance shifted toward plural equality, and the civil rights movement began to make marvelous progress” (at 141).Google Scholar

35 The 1878 court spoke of polygamy as “odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people.”Google Scholar

36 See William Hutchison, The Modernist Impulse in American Protestantism (Cambridge, Mass.: Harvard University Press, 1976). The most recent edition of the Handbook of Denominations lists 234 different organized religious groups in America. The authors make it clear that they do not consider non-Christian religions simply another denomination. It is, nevertheless, indicative of our culture that along with 10 branches of the Church of God, and 26 branches of Baptists, the book includes four branches of Judaism as well as an entry each for Islam, Buddhism, and Spiritualists. Frank S. Mead & Samuel S. Hill, Handbook of Denominations in the United States (8th ed. Nashville, Tenn.: Abington Press, 1985).Google Scholar

37 See generally Reid Luhman & Stuart Gilman, Race and Ethnic Relations: the Social and Political Experience of Minority Groups 135–51 (Belmont Cal.: Wadsworth Publishing Co., 1980).Google Scholar

38 See Oldham, J. Thomas & Caudill, David S., A Reconnaissance of Public Policy Restrictions upon Enforcement of Contracts between Cohabitants, 18 Fam. L.Q. 93 (1984).Google Scholar

39 Bowers V. Hardwick, 106 S. Ct. 2841 (1986).Google Scholar