¹ Its coordinated activities have lasted until 1987. A first joint publication appeared in 1989 (Blankenburg, 1989).

² In the “hyperlexis” view, which considers the whole of society as overlegalized, litigation is caused by “litigiousness”—the propensity to sue—coupled with too many legal rules and too many lawyers, both encouraging “litigiousness.” Galanter concentrates his argument on litigation, and so did the working group.

³ The data have various weaknesses. First, if the presumed U.S. litigation explosion is to be located in the 1970s, it is neither logical nor useful to juxtapose 1970 data for Spain and 1980 data for the United States. Second, the litigation rates for the different countries are calculated from such different data that it is hardly justified to put them together in one table, thus suggesting they are comparable. A careful reading of the two and a half pages of explanatory footnotes to the table clearly shows the complexity of the matter. This complexity concerns the contents and comparability of judicial categories, as used in the statistical reports of the different countries. The Galanter presentation of these data reduces this complexity to simplicity. The working group wanted to restore European real-life diversity to its rightful place (cf. also Nelson 1988b: 691).

⁴ The data appear mostly in yearly publications, with a delay of several years. Thus, in 1984, the data for 1980 were just becoming available.

⁵ In France, a modern, much more sophisticated statistical system was started in 1980. During the first two years the system did not work well, and the details of the data have not been elaborated. Since 1982, though problems persist, much more statistical information is available.

⁶ The sources used for this comparative presentation of judicial systems in Europe are essentially all the earlier papers by the members of the working group: Blegvad and Wulff (1984, 1989); Ietswaart (1989, 1986a, 1986b); Langerwerf and van Loon (1984, 1985); Verwoerd and Blankenburg (1985a, 1985b); but also Verwoerd (1988), van Loon and Langerwerf (1987). For France, see also Bonafé-Schmitt (1986); Pinseau (1985).

⁷ The French judicial system was successfully imposed on Belgium and the Netherlands during the Napoleonic period.

⁸ The availability of a simplified and cheap debt-collection procedure is bound to have a negative impact on the number of ordinary procedure cases: to the extent legally possible, creditors will use the simplified procedure. We shall come back to this when discussing the problem of counting “cases.”

⁹ If a long period of time is studied, the organizational changes in the institution, as well as in the tasks it performs, also pose a problem of comparability over time.

¹⁰ It would seem that the DPRP study (Miller and Sarat 1980–81) synthesizes a consensus on the logic of treating different areas of disputing separately. The underlying criteria for such a separation, elaborated in an extensive literature over the years, include the relations between the parties (degree of asymmetry, relative intimacy, the desire or the necessity to continue the relationship), the socioeconomic characteristics of the parties (individual, firm), monetary issues, among others. See Abel (1973); Felstiner (1974, 1975); Boyum (1983); Nader (1965, 1969a); Felstiner et al. (1980–81); Gulliver (1969b); Fallers (1969); Sarat (1976); Galanter (1974a); Macaulay (1963); Mather and Yngvesson (1980–81)); Miller and Sarat (1980–81); Bohannan (1967b); Danzig and Lowy (1975).

¹¹ Initially, we included two other categories of cases: those concerning rights arising from the social protection system, and those between citizens and government authorities. These areas were not covered, however, because unlike the four other countries, Denmark lacks administrative courts, and including these areas required too much additional research.

¹² We have taken 1970 as the year of reference. It should be noted that this particular year did not necessarily have the same meaning in all countries. If, e.g., 1970 has been preceded by a growth period and thus shows relatively high litigation rates, not much more growth may be expected in the 1970s. If, to the contrary, the 1950s and 1960s have been a rather quiet period and a certain growth started in the 1970s, the trend may be one of relatively strong growth. Ideally, overall growth before the period considered in detail should be taken into account. See Yohai et al. (1985).

¹³ Attempting to construct comparable rates for the five countries revealed two further problems created by reliance on official statistics. First, the data in Table 1 are not complete: for Belgium no statistics on labor courts exist, and for Denmark we lack data for the various institutions that handle labor grievances, as well as for the commercial and maritime courts. Indeed, Denmark shows the most important gaps in the data set, in part because of its high degree of decentralization: official statistics on the various parajudicial institutions are perhaps available but not easy to get hold of. Second, for the Netherlands two analyses of the official data exist, and they have important differences. Soetenhorst–de Savornin Lohman (1983) studied the demand for judicial services at the request of the Ministry of Justice. Her data allow us to calculate for the period 1970–79 an overall increase of the litigation rate by about 24 percent and a rate of 16.5 per thousand in 1979 (or 24 if we count orders to pay as well). Verwoerd and Blankenburg (1985b), on the basis of the same primary data, derive different figures: an overall increase of the rate of about 70 percent between 1970 and 1982, corresponding to a rate of 13.5 cases per thousand in 1982 (or 20.1 if we include orders to pay). Both are included in Table 1. The differences clearly result from the types of cases included in the calculations, but neither of the authors provide sufficient detail to explain these.

¹⁴ The use of population as a baseline is neither always necessary nor appropriate. Contemporary or historical research on a certain court or set of courts may limit itself to data internal to the court(s). In longitudinal studies of court activity it is possible to concentrate on the development of caseloads from an internal point of view. But any study of courts in their social context must take account of at least population growth (Lempert, 1978). It is because Friedman and Percival (1976a) proposed to analyze the role of the courts in their community that Lempert criticized their lack of use of proper baselines. As there are also drawbacks to the presentation of all litigation data as rates per thousand population, this method must always be justified by the nature of the argument and of the data.

¹⁵ Researchers in different areas of (potential) litigation take into account the real social baseline concerned. Studies on divorce rates have since long compared the latter to the marriage rate (see, e.g., Commaille et al., 1983). Studies on problems of the payment of child support take for a base the number of divorced mothers having a right to child support (Festy and Valetas, 1986). The number of road accidents is measured against the effective use of cars, i.e., the number of kilometers per car per year. It is only natural that we, in studying the courts, try to do the same thing.

¹⁶ See Law no. 75-617, of 11 July 1975 (published in Journal Officiel of 12 July 1975).

¹⁷ The same is true of garnishments. In these cases the court acts as the administrator of debt collection: every month it receives money from a number of debtors' employers and passes it on to the creditors. What is counted is the number of garnishments administered. But here the problem of counting is less acute, as these “cases” are not included in the category “total civil cases.”

¹⁸ In all Western European countries numerous specialized organizations contribute to dispute handling in the various areas of socioeconomic relations, ranging from local consumer associations to the courts. As the present study concerns litigation, we have in fact remained close to the courts. In the Netherlands, where the Rent Commission is an important and quite visible institution, its caseload has been taken into account. For Denmark, some of the numerous specialized parajudicial institutions have also been included.

¹⁹ Furthermore, the French data are incomplete; they report only on the county courts and not the others (high courts, commercial courts). The total rate is much higher.

²⁰ Again, these rates are only first approximations, since more appropriate baselines for labor grievances exist, e.g., the economically active population.

²¹ The relationship between change within courts and extralegal developments has been studied extensively, and overall, comprehensive theories have been proposed. But it has now been sufficiently demonstrated that there is no simple correlation between overall economic and legal development (Friedman and Percival, 1976a; McIntosh, 1980–81; Krislov, 1983; Daniels, 1984; Toharia, 1987; Munger, 1988). At the same time, neither courts nor (potential) litigants function in a socioeconomic vacuum. Nonetheless, the kinds of litigation that the courts are called upon to handle are so varied that global theories are inadequate.

²² While nonlongitudinal studies have dealt frequently with the socioeconomic status of plaintiffs (Wanner, 1974; on small claims court studies, see Yngvesson and Henessey, 1975: 235 ff.), only a few longitudinal studies have looked at this issue over time (McIntosh, 1985; Munger, 1988).

²³ In France, the state is financially liable if the police refuse to help evict tenants forcibly. In that case, the landlord has a right to an indemnity for unpaid rent. For this liability to come into play, several steps are necessary: (1) The landlord requests the eviction in court; (2) the judge grants the eviction; (3) the landlord notifies the tenants of the judgment, and asks them (again) to leave; (4) upon their refusal, s/he requests the help of the police. The ultimate decision in these matters rests with the prefect (head of the Department) and the prefects vary in their willingness to forcibly throw tenants out. If the prefect refuses, the state becomes liable.

²⁴ Changes in judicial organization in the period since 1970 have not been systematically studied in each country. Anecdotal evidence suggests, however, that ideally such changes should be taken into account as they may affect litigation rates. In France, a number of new labor courts were established in 1980–81, with all labor grievances falling within their exclusive jurisdiction. Up to 1980, county courts were competent to hear these matters where no labor court existed. Also, new labor judges were elected in that same period in the whole country. Altogether a rather chaotic situation resulted, and for a few years the labor courts did not function well, with a negative effect on the official rate of labor grievances in 1984.

²⁵ A valuable study of debt collection in the areas of landlord-tenant relations and consumer credit is Mornet (1980). It describes the functioning of private debt-collection agencies and explains their efficiency. The sociolegal function of courts in the area of debt collection is quite different from that in cases of eviction (cf. note 24). It is a pity that the debt-collection study has not been repeated more recently; fieldwork was done in 1976–77.

²⁶ The same conclusion has been reached in a totally different area. Maurice et al. (1979) started out studying comparatively the wage scales at different levels of skill in French and West German firms. They soon found out that the systems of job qualification and categories of skill were very different in the two countries, thus making comparisons of wages impossible. They ended up studying the education systems, since they form the basis of the acquisition of skills and the appreciation of these in the labor market.