1. There have been exceptions—for example, Francis W. Laurent's study of a century of work of the local courts of Chippewa County, Wisconsin. Francis W. Laurent, The Business of a Trial Court: 100 Years of Cases (1950); Charles Clark and Harry Shulman, A Study of Law Administration in Connecticut (1937).

2. On the functions of trial courts in general, see Lawrence M. Friedman, “Trial Courts and Their Work in the Modern World,” Jahrbuch für Rechtssoziologie und Rechtstheorie (forthcoming).

This study focusses on two functions: dispute settlement, and routine administration. There are other functions, for example, social control (primarily criminal cases, hence not treated here) and review of governmental actions, where government is defendant in a civil suit. Government plaintiffs appeared in less than 3% of the cases studied; governmental defendants in only 4%.

3. On the definition of a dispute, see Richard L. Abel, “A Comparative Theory of Dispute Institutions in Society,” 8 Law & Society Review 217, 226-7 (1973).

4. Max Gluckman, The Judicial Process Among the Barotse of Northern Rhodesia (1955).

5. Id., op. cit; Floyd Fallers, Law Without Precedent (1969); Laura Nader, “Styles of Court Procedure,” in Law in Culture and Society (Laura Nader, ed. 1969).

6. It would, in fact, be improper for a judge, in a lawsuit that Smith brings against Jones, to consider the effect of the suit on their relationship as neighbors, or as brothers-in-law. Some courts—family and juvenile courts—have a mandate to take personal relationships into account. And judges may, in hidden or subconscious ways, react to aspects of a case which strictly speaking they ought not legally consider. Still, there is evidence of the “trained incapacity” of judges to handle expressive, social aspects of cases. See, for example, Rudiger Lautmann's study of the German judiciary, Justiz —die Stille Gewalt (1972); Richard Danzig, “Toward the Creation of a Complementary, Decentralized System of Criminal Justice,” 26 Stan. L. Rev. 1 (1973).

Of course, both pictures (of the Western court, and the court of the simple society) are exaggerations—or, if you will, ideal types. Trial courts in the United States and other countries can and do dispense a kind of justice more tailored to the specific situation of the parties, through informal means—in pre-trial proceedings, for example.

7. See Lawrence M. Friedman, The Legal System: A Social Science Perspective 260 (1975).

8. We should not jump to the conclusion, however, that courts and the doctrine they make have no effect on patterns of out-of-court settlement. “The law” that a court is likely to apply is an important factor in the bargaining that takes place in settlement of auto accident cases, for example. See Alfred F. Conard et al., Automobile Accident Costs and Payments (1964); H. Laurence Ross, Settled Out of Court: The Social Process of Insurance Claims Adjustment (1970). Compare Galanter's concept of the “appended” settlement system, that is, a dispute settlement system, which though unofficial is “normatively and institutionally appended to the official system.” He gives settlement of auto injuries as an example. Marc Galanter, “Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Legal Change,” 9 Law & Society Review 95, 126 (1974).

9. Of course, sometimes, even in routine matters, a serious issue needing exceptional training and skill to handle may abruptly arise. Most probate proceedings are routine; but once in a while a will is contested or a claim disputed. Arguably the judge must stand by, like a doctor at a hospital, in case of emergency. Many uncontested, routine cases are fossilized forms of what were once areas of more vigorous adjudication: divorce and debt collection, for example.

10. Ronald L. Chatham, The Geography of San Benito County, California, 2 (1962).

²⁷⁴ 11. U.S. Department of Commerce, Bureau of the Census, 1970 Census of Population, Vol. I, Characteristics of the Population, Part 6, 1035 (1973).

12. U.S. Department of Interior, Census Office, Report of the Statistics of Agriculture at the Eleventh Census: 1890, 200 (1895); U.S. Department of the Interior, Census Office, Report on Manufacturing Industries in the United States at the Eleventh Census: 1890, Part 1, 353, 355 (1895).

13. U.S. Department of Commerce, Bureau of the Census, Fifteenth Census of the United States: 1930, Vol. III, Population, Part 1, 273, 275 (1932); U.S. Department of Commerce, Bureau of the Census, 1970 Census, supra, note 11 at 1048, 1050.

14. U.S. Department of Commerce, 1970 Census, supra, note 11, at 1058, 1060.

15. Chatham, supra, note 10, at 137; see also History of San Benito County (1881); Lawrence M. Friedman, “San Benito 1890: Legal Snapshot of a County,” 27 Stan. L. Rev. 687 (1975).

16. National Society of Colonial Dames, Counties and Courthouses of California 32-33 (1964).

17. Chatham, supra, note 10, at 144, n.34.

18. Chatham, supra, note 10, at 149-53.

19. Chatham, supra, note 10, at 4.

20. Mildred B. Hoover, Historical Spots in California 23 (1937).

21. Leslie J. Freeman, Historic San Leandro, California 34, 40 (1940).

22. Cal. Code Civil Proc. § 904.2 (appeals from Municipal Courts), § 904.3 (appeals from Justice Courts), § 117j (appeals from Small Claims Courts). These statutes providing for such appeals are authorized by Cal. Const. Art. VI § 11. Cal. Code Civil Proc. § 77 provides for an appellate department of Superior Courts.

23. In Alameda County: 94.5% in 1890, 96.3% in 1910, 96.0% in 1930, 99.3% in 1950, 98.7% in 1970. In San Benito County: 93.5% in 1890, 96.7% in 1910, 99.0% in 1930, 100.0% in 1950, and 98.7% in 1970.

24. Cal. Code Civil Proc, § 117j currently requires a trial de novo when appeals from Small Claims Courts reach the Superior Court. Until 1968, a trial de novo was also required of appeals from Justice Courts by Cal. Code Civil Proc. § 983. Section 904.3 which replaced § 983 no longer embodies this requirement.

25. This is most acute for the earliest periods. Sporadic early records do survive; and newspaper accounts add significant information. See Friedman, supra, note 15.

26. Cal. Const. Art. VI §§ 10-11 established Superior Courts as courts of general jurisdiction, with the lower limit on their jurisdiction determined by statutes establishing inferior courts of limited jurisdiction. For the years 1890 and 1910 in our study, the civil jurisdiction of Superior Courts extended to cases where the amount in controversy was $300 or more. This jurisdictional floor had been increased to $2,000 by 1930 and $3,000 by 1950. The present law, in force in 1970, gives Justice Courts jurisdiction up to $1,000 (Cal. Code Civil Proc. § 112), and Municipal Courts jurisdiction up to $5,000 (Cal. Code Civil Proc. § 89). Superior Courts have jurisdiction over civil cases where the amount in controversy is $5,000 or more.

27. Administrative Office of the California Courts, Annual Report, Judicial Statistics for the Fiscal Year 1969-70 131, 192 (1971).

28. See Beatrice A. Moulton, “The Persecution and Intimidation of the Low Income Litigant as Performed by the Small Claims Courts in California,” 21 Stan. L. Rev. 1667 (1969).

29. In England, the county courts, the basic civil courts, function primarily as collection agencies. The defendants are consumers and occasional small tradesmen; the English county court is where a grocer or the owner of a clothing store goes to collect money his customers owe. See, for the history of these courts, Brian Abel-Smith and Robert Stevens, Lawyers and the Courts: A Sociological Study of the English Legal System, 1750-1965, (1967), especially 33-35.

30. 28 U.S. Code § 1332 (1971).

31. In 1970, of the 2,887 civil cases filed in Federal District Court for the Northern District of California (the district encompassing both Alameda and San Benito counties), only 359 (12.4%) could be classified as ordinary civil litigation of the kind likely to be found in state trial courts. The rest were divided among cases in which the federal government was a party (679) and private cases involving: prisoner petitions (966), marine personal injury (383), antitrust (90), copyright and patent (76), labor suits (57), the Federal Employers Liability Act (1) and unclassified subjects (276). Administrative Office of the U.S. Courts, Annual Report of the Director, 1970, 238-39 (1971).

Although the federal statistics do not indicate the county of origin for these cases, Alameda and San Benito counties accounted for only around one-fifth (21.7%) of the population of the Northern District of California in 1970. 28 U.S.C. § 84 (1971); Bureau of Census, 1970 Census of Population, General Social and Economic Characteristics, California 380 (1972). Assuming a rough proportionality between population and case filings, Alameda and San Benito counties would account for only 79 ordinary civil cases in federal court in 1970 (21.7% of 359). Even the inclusion of these counties' share of private unclassified cases would only increase this total to 139 (adding 21.7% of 276) and many of these additional cases would not represent ordinary civil litigation. When this figure is compared with the approximately 12,000 civil cases in the superior courts of Alameda and San Benito counties in 1970, it is small indeed (around 1%).

32. Craig Wanner, “The Public Ordering of Private Relations,” Part II, 9 Law & Society Review 293 (1975). In New Haven and Waterbury Connecticut, in the period roughly between 1919 and 1930, plaintiffs won 83% of their cases. Clark and Shulman, supra, note 1, at 41. See also Marc Galanter, “Why the ‘Haves’ Come Out Ahead; Speculations on the Limits of Legal Change,” 9 Law & Society Review 95 (1974).

In England, where the county courts have been used as routine debt collection courts, the same disparities appear. For example, in Durham County Court, in a single day, Feb. 13, 1911, there were 111 cases entered on the record books. In only 3 of these was judgment entered for defendant (plaintiffs won 80; seven were marked “paid;” in 12, defendant was not served; in eight the case was struck out or withdrawn). Durham County Court, P.R.O. AK2 no. 10. Plaint and Minute Book B 18ff, 1910-11. Aggregate statistics present a similar picture; for example, in 1870, 912,795 cases were entered in county court; 523,340 went to judgment; plaintiffs won 505,744 of these judgments; there were 8,185 non-suits and only 9,411 judgments for defendant. Civil Judicial Statistics, 1870, xi.

33. See the important work of José Juan Toharia, Cambio Social y Vida Jurídica en España, 1900-1970 (1974); a study of the volume of civil litigation at first instance in Sweden and Denmark, between 1930 and 1970, showed similar results. In Sweden, the volume actually decreased; in Denmark, litigation grew in absolute numbers, but not in proportion to the population. Britt-Mari P. Blegvad, P.O. Bolding, Ole Lando, Arbitration as a Means of Solving Conflicts 103-105 (1973). The rate of litigation has been static or declining in England, too, since about the turn of the century. Friedman, supra, note 2. Findings similar to Toharia's are reported by Carlos José Gutierrez, in a study of Costa Rican litigation, as yet unpublished.

34. Are these results specific to California? There is no reason to believe that they are. A spot check was made of records of Camden County, New Jersey, for the years 1892 and 1966. The records of this county show more or less the same progression. In the earlier year contract and property cases predominate; tort cases are rare. This can be seen both in the records of the Camden County trial courts, and in records of New Jersey circuit court judgments, on file in Trenton, New Jersey. By 1970, the pattern of litigation had come to resemble that of the two California counties. Family law cases are handled by separate chancery courts in New Jersey; such cases rose from a miniscule number to a dominant position in the percentage of cases decided on the trial court level in New Jersey. Time did not, however, permit comparison of urban and rural courts in New Jersey. Replication of this study in other parts of the country would be useful.

35. For pictures of these courts at work, see Joseph H. Smith, Colonial Justice in Western Massachusetts (1639-1702): The Pynchon Court Record (1961); Paul M. McCain, The County in North Carolina before 1750 (1954).

36. See Friedman, supra, note 25.

37. J. Willard Hurst, Law and the Conditions of Freedom in the 19th Century United States (1964); Lawrence M. Friedman, A History of American Law 157-58 (1973); Harry N. Scheiber, Ohio Canal Era, A Case Study of Government and the Economy, 1820-1861 (1969).

38. See Stewart Macaulay, “Non-Contractual Relations in Business: A Preliminary Study,” 28 Am. Soc. Rev. 55 (1963).

39. These private transactions are affected by law; they make use of formalities specifically validated by positive law, or they depend on the advice or consent of a lawyer or notary.

40. That is, parties or potential parties may choose to make use of “rival” institutions, such as arbitration. See Britt-Mari P. Blegvad, et. al., supra, note 33, or what William Felstiner calls “avoidance.” Avoidance is a technique of withdrawal (for example, “consumers switching their trade from one retail merchant to another after a dispute”) or it may take the form of “lumping it,” where “the salience of the dispute is reduced not so much by limiting the contacts between the disputants, but by ignoring the dispute, by declining to take any or much action in response to the controversy.” William L.F. Felstiner, “Influences of Social Organization on Dispute Processing,” 9 Law & Society Review 63, 76, 81 (1974); see also Richard L. Abel, “A Comparative Theory of Dispute Institutions in Society,” 8 Law & Society Review 217 (1974).