1 Marc Galanter, Reading the Landscape of Disputes: What We Know and Don't Know (And Think We Know) About Our Allegedly Contentious and Litigious Society, 31 U.C.L.A. L. Rev. 4 (1983), cites and discusses some of the sources of these positions, which includes Chief Justice Burger, Warren E., The State of Justice, 70 A.B.A. J. 62 (1984) (revised text of annual report to the midyear meeting of the A.B.A.).Google Scholar

2 I have elsewhere discussed the long and complex history of judicial reform in the handling of small claims going back to colonial America and noted the cyclical reform issues of informalism and simplification and their structural impacts on the legal system. Steele, Eric H., The Historical Context of Small Claims Courts, 1981 A.B.F. Res. J. 293.Google Scholar

3 Auerbach focuses on status-based communities. His discussion should be set in the context of Sir Henry Maine's analysis of the development of modern law as a shift from status to contract. Henry James Sumner Maine, Ancient Law (London: J. Murray, 1861).Google Scholar

4 Compare Carol J. Greenhouse, Nature Is to Culture as Praying Is to Suing: Legal Pluralism in an American Suburb, 20 J. Legal Pluralism & Unofficial L. 17 (1982), where the author uses data from a contemporary fundamentalist Baptist community in Georgia to demonstrate that nonuse of courts does not indicate the absence of disputing, even in a small, intense community setting.Google Scholar

5 Jerold S. Auerbach, Unequal Justice (New York: Oxford University Press, 1976).Google Scholar

6 Charles Warren, A History of the American Bar 4 (Boston: Little, Brown & Co., 1911). Plato and Shakespeare have expressed similar and oft-quoted sentiments on lawyers.Google Scholar

7 David Riesman, Individualism Reconsidered 450 (Glencoe, Ill.: Free Press, 1954).Google Scholar

8 Abel, Richard L., A Comparative Theory of Dispute Institutions in Society, 8 Law & Soc'y Rev. 217 (1973); Special Issue of Law & Society Review on Dispute Processing and Civil Litigation, 15 Law & Soc'y Rev. No. 3/4 (1980–81); Galanter, supra note 1; Trubeket, David M. al., The Costs of Ordinary Litigation, 31 U.C.L.A. L. Rev. 72 (1983) (presenting the findings of the Civil Litigation Research Project); various working papers published by the Disputes Processing Research Program, University of Wisconsin—Madison, Law School, many growing out of the Civil Litigation Research Project; Steele, Eric H., Fraud, Dispute, and the Consumer: Responding to Consumer Complaints, 123 U. Pa. L. Rev. 1107 (1975); id., Two Approaches to Contemporary Dispute Behavior and Consumer Problems, 11 Law & Soc'y Rev. 667 (1977);Steele, Eric H. & Nimmer, Raymond T., Lawyers, Clients, and Professional Regulation, 1976 A.B.F. Res. J. 917;Engel, David M. & Steele, Eric H., Civil Cases and Society: Process and Order in the Civil Justice System, 1979 A.B.F. Res. J. 295.Google Scholar

9 Karl N. Llewellyn & E. Adamson Hoebel, The Cheyenne Way: Conflict and Case Law in Primitive Jurisprudence 20 (Norman: University of Oklahoma Press, 1941).Google Scholar

10 See, Engel & Steele, supra note 8, at 331–46, where we set out the interrelated “mechanistic” and “organic” paradigms of the legal system and their relationship to these two functions served by law.Google Scholar

11 Steele, Fraud, Dispute, and the Consumer, supra note 8; Engel & Steele, supra note 8; Galanter, supra note 1; Galanter, Marc, Why the “Haves” Come Out Ahead: Speculations on the Limits of Legal Change, 9 Law & Soc'y Rev. 95 (1974); id., Justice in Many Rooms: Courts, Private Ordering, and Indigenous Law, 19 J. Legal Pluralism & Unofficial L. 1 (1981).Google Scholar

12 Steele, Fraud, Dispute, and the Consumer, supra note 8; Engel & Steele, supra note 8; Galanter, Why the “Haves” Come Out Ahead, supra note 11; id., supra note 1.Google Scholar

13 Levine, Felice J. & Preston, Elizabeth, Community Resource Orientation Among Low Income Groups, 1970 Wis. L. Rev. 80; Mayhew, Leon & Reiss, Albert J. Jr., The Social Organization of Legal Contacts, 34 Am. Soc. Rev. 309 (1969); Mayhew, Leon H., Institutions of Representation: Civil Justice and the Public, 9 Law & Soc'y Rev. 401 (1975); and Barbara A. Curran, The Legal Needs of the Public: The Final Report of a National Survey (Chicago: American Bar Foundation, 1977).Google Scholar

14 See, e.g., Galanter, supra note 1, particularly at 34–51, where he demonstrates that litigation rates in the United States have historically often been far higher than they are now. See also Burger, supra note 1, at 66, where the Chief Justice said: “To rely on the adversary process as the principal means of resolving conflicting claims is a mistake that must be corrected…. When we must constantly witness spectacular expansions of court dockets, requiring more and more judges, something is wrong…. The entire legal profession—lawyers, judges, law teachers—has become so mesmerized with the stimulation of the courtroom contest that we tend to forget that we ought to be healers—healers of conflicts.”Google Scholar

15 See Steele, Fraud, Dispute, and the Consumer, supra note 8; Engel & Steele, supra note 8, discussion of the first stage of disputing—the perception and characterization of the situation.Google Scholar

16 Galanter, supra note 1; Mnookin, Robert & Kornhouser, Louis, Bargaining in the Shadow of the Law: The Case of Divorce, 88 Yale L.J. 950 (1979).Google Scholar

17 For an investigation of a contemporary American community that explores the varying modes of disputing, see Engel, David M., Legal Pluralism in an American Community: Perspectives on a Civil Trial Court, 1980 A.B.F. Res. J. 425; id., The Oven Bird's Song: Insiders, Outsiders, and Personal Injuries in an American Community (paper presented to the Law & Society Association, June 1983); and id., Cases, Conflict, and Accommodation: Patterns of Legal Interaction in a Small Community, 1983 A.B.F. Res. J. 803.Google Scholar

18 See Greenhouse, supra note 4.Google Scholar

19 Moore, Sally Falk, Law and Social Change: The Semi-autonomous Social Field as an Appropriate Subject of Study, 7 Law and Soc'y Rev. 719 (1973).Google Scholar

20 Galanter, Justice in Many Rooms, supra note 11, at 17. See also, by Georg Simmel, two essays in one volume: Conflict, trans. Kurt H. Wolff, and The Web of Group Affiliations, trans. Rheinhard Bendix, particularly 138–95 (New York: Free Press, 1955); and id., The Sociology of Georg Simmel, trans. and ed. Kurt H. Wolff, particularly 99–104 (New York: Free Press, 1950).Google Scholar

21 See Stewart Macaulay, Private Government, Disputes Processing Research Program working paper 1983–6, (University of Wisconsin—Madison, Law School, 1983).Google Scholar

22 See Galanter, Justice in Many Rooms, supra note 11.Google Scholar

23 This is similar to the question raised by the authors of the Wisconsin Civil Litigation Research Project. After careful and comprehensive surveys and analysis of the economic and social realities of contemporary litigation, those researchers conclude: “Finally, we are compelled to ask how the legal profession defines problems and provides solutions in an area like litigation and dispute processing. Why is there such a wide gap between the world described in the reform rhetoic and the world we observed? This question, which takes us far beyond our data or topic, nevertheless may be the most important one to arise from our study of the world of ordinary litigation.” Trubek et al., supra note 8, at 123.Google Scholar

24 See Engel & Steele, supra note 8, at 340–46.Google Scholar

25 Compare Roman Tomasic & Malcolm F. Feeley, eds., Neighborhood Justice: Assessment for an Emerging Idea (New York: Longman, 1976); and Richard L. Abel, ed., The Politics of Informal Justice (New York: Academic Press, 1982).Google Scholar

26 Compare Steele, supra note 2.Google Scholar

27 Tomasic & Feeley, supra note 25, at xi-xii.Google Scholar

28 Compare Abel, supra note 25.Google Scholar

29 Tomasic & Feeley, supra note 25; Abei, supra note 25.Google Scholar

30 See, e.g., Bruce H. Mann, Arbitration to law and Equity Before the American Revolution: The Morphology of Legal Change, N.Y.U. I., Rev. (1981), in press.Google Scholar

31 See Engel & Steele, supra note 8, at 340–46.Google Scholar

32 Kennedy, Duncan, Form and Substance in Private Law Adjudication, 89 Haw. L. Rev. 1685 (1976).Google Scholar