Framework for Analysis of Legal Mobilization: a Decision-Making Model Author(S): Frances Kahn Zemans Source: American Bar Foundation Research Journal, Vol

American Bar Foundation

Framework for Analysis of Legal Mobilization: A Decision-Making Model Author(s): Frances Kahn Zemans Source: American Bar Foundation Research Journal, Vol. 7, No. 4 (Autumn, 1982), pp. 989- 1071 Published by: Blackwell Publishing on behalf of the American Bar Foundation Stable URL: http://www.jstor.org/stable/828252 Accessed: 30/03/2009 11:47

Your use of the JSTOR archive indicates your acceptance of JSTOR's Terms and Conditions of Use, available at http://www.jstor.org/page/info/about/policies/terms.jsp. JSTOR's Terms and Conditions of Use provides, in part, that unless you have obtained prior permission, you may not download an entire issue of a journal or multiple copies of articles, and you may use content in the JSTOR archive only for your personal, non-commercial use.

Please contact the publisher regarding any further use of this work. Publisher contact information may be obtained at http://www.jstor.org/action/showPublisher?publisherCode=black.

Each copy of any part of a JSTOR transmission must contain the same copyright notice that appears on the screen or printed page of such transmission.

JSTOR is a not-for-profit organization founded in 1995 to build trusted digital archives for scholarship. We work with the scholarly community to preserve their work and the materials they rely upon, and to build a common research platform that promotes the discovery and use of these resources. For more information about JSTOR, please contact [email protected].

American Bar Foundation and Blackwell Publishing are collaborating with JSTOR to digitize, preserve and extend access to American Bar Foundation Research Journal.

http://www.jstor.org Framework for Analysis of Legal Mobilization: A Decision-Making Model Frances Kahn Zemans

The Americanlegal system, structuredin an entrepreneurialmode, relies upon the individualactor to personallyevaluate the burdensand benefits of invoking the law on his or her own behalf. Withoutdiscounting the contribu- tion to our understandingof legal mobilizationwhich has been made by the access-to-justicemovement, the author argues thatfocusing on the poor and the distributionof legal services has limited our understandingof the legal system. The articlepresents an alternativeanalytic framework for examinationof citizen use of the law. The model of legal mobilizationpresented focuses on demandsrather than needs, on citizensrather than lawyersor judges, on decision making rather than access, and on invoking the law rather than compliance with it. Drawingon the literatureand availableempirical evidence, the author attemptsto analyticallyclarify the complexprocess of legal mobilization by organizing relevant variables into a decision-makingmodel that focuses on the individualactor and the factors weighedin deciding whether and how to proceed in mobilizingthe law. I. INTRODUCTION

A. Access to Justice: The Dominant Approach Recent decades have witnesseda veritableexplosion of interestin the law and the distributionof its guaranteeswithin American society. Atten- tion has focused on the extent to which legal rights are meaningfulto the averagecitizen. Concernwith access to justice has been reflectedin both researchand social action, with the legal professionand the courts particular objects of attention.1

Frances Kahn Zemans is an Affiliated Scholar, American Bar Foundation. B.S., 1965, University of Michigan; M.A., 1966, and Ph.D. in political science, 1972, Northwestern University. 1. It should be noted that concern with access to justice is not unique to the contemporary period. The codification of 1810-1850 was intended to limit the power of judges and make law more open to the lay public and thereby "promote the broad distribution of access to the legal system." Mark V. Tushnet, Commentary, Perspectives on the Development of American Law: A Critical Review of Friedman's "A History of American Law," 1977 Wis. L. Rev. 81, 106. For a discussion of the role of "legal access for ordinary people" in the emergence of small claims courts, see Eric H. Steele, The Historical Context of Small Claims Courts, 1981 A.B.F. Res. J. 293, 295.

The conceptualframework within which the access-to-justiceapproach has been articulatedrests on legal needs and those factors, most particularly the cost of legal servicesand complexitiesof formal justice, that inhibit meeting those needs. A conceptualframework is of course important in guiding researchquestions. Not only does it help direct research activity, but by its very nature it delimits the scope and sharpensthe focus of that inquiry. There is always the hazard that an inappropriate frameworkwill lead even in well-executedwork to missing part of the reality importantto understandingthe subject under investigation.Such has been the case with the legal needs framework.While there are brief infrequentreferences in the literatureacknowledging that "needs" are in the eye of the beholder, the literaturetypically ignores that realization. Furthermore,it neglectsthe obvious fact that changesin the deliverysys- tem will change demand-that is, if legal servicesare made cheaperand more available, there will be greaterdemand whateverthe "need." In- stead, it begins with either a list of legal needs or a cataloguingof perceived problems accompaniedby the author's assertion of legal needs that follow from them and then proceedswith an evaluationof how the legal system as currentlyconstituted denies justice to those whose needs are not met.2 That "legal needs" view, which pervadesthe legal servicesliterature, can be tracedto the genesisof the legal servicesmovement in the concern for social justice for the poor and the belief that meetingtheir legal needs would contributeto that end. In their extremelyinfluential work sum- marizingavailable data on class differencesin the use of lawyers,Carlin and Howard3concluded that those differencesresulted in the denial of justice to the poor. The factors they took to be importantin the unequal use of lawyersincluded awareness of a problemas a legal matter,willingness to take action (includingprior contact, experiencewith law, and fear of reprisal),getting to a lawyer, and hiring a lawyer(i.e., avoidingbeing screenedout by the profession).Although a perceptualstage is implicitin this list of considerations,the focus in this and later work4is on (1) the special relevanceof these issues to the poor as contrastedto the rest of

2. For a sharply critical view of this approach see John Griffiths, A Comment on Research into "Legal Needs," in Erhard Blankenburg, ed., Innovations in the Legal Services 29 (Cambridge, Mass.: Oelgeschlager, Gunn & Hain, 1980). Not all the research using the legal needs terminology necessarily suffers from these problems. Barbara A. Curran, in The Legal Needs of the Public: The Final Report of a National Survey (Chicago: American Bar Foundation, 1977), avoids some of these pitfalls by concentrating on the actual use of legal services; this study also does not sever the poor from the rest of the population and so avoids what has been the greatest difficulty in much of the research effort. A discussion of this problem follows in the text. 3. Jerome E. Carlin & Jan Howard, Legal Representation and Class Justice, 12 U.C.L.A. L. Rev. 381 (1965). 4. Jerome E. Carlin, Jan Howard, & Sheldon L. Messinger, Civil Justice and the Poor: Issues for Sociological Research (New York: Russell Sage Foundation, 1967). No. 4 FRAMEWORKFOR ANALYSIS OF LEGALMOBILIZATION 991

the populationand (2) the need to providelawyers' services at minimalor no cost.5 Indeed the argumentwent furtherto imply that the obligation of the profession is to determinethe legal needs of the poor (presuming that they are readilyrecognizable to an educatedobserver) and to orga- nize the poor for legal action. It is indeed surely true that participationand the distributionof demands in a legal system structuredin an entrepreneurialmode are dependent upon resources, skill, aggressiveness,and legal consciousness, none of which is evenly distributedin our society. The distributionof such resourcesand access to them is thereforecritical to the administration of justice. Yet withoutdiscounting the substantialmerit of the access- to-justiceargument or rejectingthe importanceof providinglegal services for the poor, one must be awarethat availableevidence does not support the implicationthat knowledgeof the law and its protectionsand the cost and distributionof legal counselalone are sufficientto explainthe observable pattern of legal mobilization. While knowledgeof the law and the cost of legal adviceare undoubtedlycentral to mobilizingthe law, they are only two among many factors-and not always the most important.In- deed a numberof studieshave clearlydocumented that resourcesalone are insufficientto predictuse of lawyersand the legal system on a varietyof issues.6 Furthermore,the dominantapproach that concentratesupon the poor and distinguishesthem from the rest of the population in their relationship to and use of the law fails to attributerationality to the poor themselves and diminishesthe importanceof their self-initiativein using the law on their own behalf. By promotinguse of lawyers'services this perspective implicitlyencourages increased dependence of the poor on professionals.7 This hazard was recognizedby Edgar and Jean Cahn in their earliest

5. This perspective is not limited to the United States. See, e.g., Kees Schuyt, Explaining the Limited Use of Legal Services by the Poor: A Three Dimensional View, paper presented at a Confer- ence on the Report of the Royal Commission on Legal Services, Cardiff, Wales, 1980. See also 1-3 Mauro Cappelletti, ed., Access to Justice (Alphenaandenrijn, Neth.: Sitjhoff & Noordhoff; Milan: Dott. A. Giuffre Editore, 1978, 1979): vol. 1 of the series is Mauro Cappelletti & Bryant Garth, eds., A World Survey, bks. 1 & 2 (1978); vol. 2, Mauro Cappelletti & John Weisner, eds., Promising In- stitutions, bks. 1 & 2 (1978); vol. 3, Mauro Cappelletti & Bryant Garth, eds., Emerging Issues and Perspectives (1979). 6. See, e.g., Roger Bryant Hunting & Gloria S. Neuwirth, Who Sues in New York City? (New York: Columbia University Press, 1962); Herbert Jacob, Judicial and Political Efficacy of Litigants: A Preliminary Analysis, in Joel Grossman & Joseph Tanenhaus, Frontiers of Judicial Research (New York: John Wiley & Sons, 1969); Curran, supra note 2; M. P. Baumgartner, Law and the Middle Class: Evidence from a Suburban Town 2-3, paper presented at the Annual Meeting of the Law and Society Association, Madison, Wis., 1980; Hazel Genn, Who Claims Compensation: Fac- tors Associated with Claiming and Obtaining Damages, in D. Harris et al., eds., Compensation and Support for Illness and Injury (Oxford University Press, forthcoming). 7. See Ivan Illich's Disabling Professions for a discussion of this point in relation to professions more generally. Ivan Illich et al., Disabling Professions (London: Marion Boyars, 1977). 992 AMERICANBAR FOUNDATION RESEARCH JOURNAL 1982:989 work on the role of law and legal servicesin the War on Poverty.8In an articleappropriately titled "Power to the People or the Profession?-The Public Interest in Public Interest Law,"9 the Cahns later criticizedthe legal servicesmovement for the too-dominant role enjoyed by lawyers. Unlike much of the literatureand social action that followed from their early work, the Cahns point to the importanceof the assertionof legal rights without either the interventionof legal professionalsor the direct involvementof the legal apparatusof the state. They recognizedthat until laypersonscan enforce their own rights, therecan be no guaranteethat they will not be manipulated.10"Finally and ultimately,"they say, "ex- pandingthe legal manpowersupply must involve increasingthe capacity of each individualto cope independentlyand preventativelywith situations posing the possibilityof legal injury.'" B. An Alternative Perspective: Centrality of the Individual Decision Maker An importantfirst step out of the confined vision of much of both the scholarlyand the activist traditionsthat followed from the Cahns' early work was taken by Leon Mayhew and Albert Reiss,'2 who began their empiricalanalysis of the Detroit Area Study data with problemsthat citizens define as legal matters. In a later piece Mayhew'3made explicit his views as to the limits of the earlierapproach and questionedthe orientation of much of the legal servicesand legal needs literature."The idea that only a specialsegment of the public remainsunprotected-a segment disadvantagedby 'an ethos born of poverty, isolation, and past non-use of [the] legal system'4 is both naive sociology and unambitiousjurispru- dence."1 In contrastto earlierfindings, or at least earlierassertions, the "Detroit study producedevidence suggesting that the biggest obstacle to more use of lawyersis not inadequateincome but an absenceof the perception that seeing a lawyerwould be useful or appropriate.Those who

8. Edgar S. Cahn & Jean C. Cahn, The War on Poverty: A Civilian Perspective, 73 Yale L.J. 1317 (1964). 9. Edgar S. Cahn & Jean Camper Cahn, Power to the People or the Profession?-The Public In- terest in Public Interest Law, 79 Yale L.J. 1005 (1970). 10. Id. at 1040. 11. Id. at 1021. The Cahns go on to suggest that the process for expanding this supply must begin with early legal socialization in grade school. Such legal socialization is an important variable in the model I will be presenting. 12. 1967 Detroit Area Study: Citizens in Search of Justice (Leon Mayhew & A. J. Reiss, Jr., principal investigators, University of Michigan (Inter-University Consortium for Political and Social Research, 1 CPSR 7406) (2d ed 1977)). Leon Mayhew & Albert J. Reiss, Jr., The Social Organiza- tion of Legal Contacts, 34 Am. Soc. Rev. 309 (1969). 13. Leon H. Mayhew, Institutions of Representation: Civil Justice and the Public, 9 Law & Soc'y Rev. 401 (1975). 14. Quoting F. Raymond Marks, Jr., The Legal Needs of the Poor: A Critical Analysis 10 (Chicago: American Bar Foundation, 1971). 15. Mayhew, supra note 13, at 426. No. 4 FRAMEWORKFOR ANALYSIS OF LEGALMOBILIZATION 993

felt the need to see a lawyer usually found one."16 The same has been found to be true for a national sample, only 19.2 percent of whom had given serious thought to consulting a lawyer but did not do so.'7 In support of a reasonable decision-maker hypothesis, the most frequent reason given for considering seeing a lawyer, but not doing so, was the solution of the problem by another means.18 Indeed the failure to use lawyers' services even in the face of perceived legal problems does not in itself automatically identify either a maldistri- bution in legal services or a problem in access to justice. There are two important reasons why this is so. First, many problems for which law provides a potential resource may also be solved by alternative means.'9 Jack Ladinsky and Charles Susmilch,20 for example, find that formal brokers of consumer disputes are organized to serve the poor. What, they ask, happens to the middle-class consumer with a grievance? They answer with the presumption that middle-class actors handle these complaints themselves. They may in fact mobilize the law on their own behalf without seeking either advice or assistance from a third-party resource, either lawyer or other.21 Second, given the costs, broadly conceived, of mobilizing the legal system, rational decision makers, able and willing to assert their rights, may choose not to do so. For the expected benefit to be gained by invoking a legal norm may simply be perceived as not worth the trouble. Competence alone, therefore, particularly as measured in the abstract, is insufficient to predict actual mobilization-physical, psychological, financial, and other factors need to be evaluated for their impact on decisions to invoke the law irrespective of the socioeconomic status of the decision maker. In addition there is a cost in the form of the stigma of failing to handle one's own problems that may be attached to use of the law. For the American legal system, structured in an entrepreneurial mode, relies upon the individual actor to personally evaluate the burdens and benefits of invoking the law. It assumes self-interested actors, and ac-

16. Id. at 411. 17. Barbara A. Curran & Katherine J. Rosich, Data Manual for the Survey of the Legal Needs of the Public 284 (Chicago: American Bar Foundation, 1980). 18. Id. at 275. 19. As part of the access to justice movement the dispute-processing literature has argued that technologically complex, rich societies have fewer and less efficient forums for handling disputes than do technologically simple, poor societies. William L. F. Felstiner, Influences of Social Organi- zation on Dispute Processing, 9 Law & Soc'y Rev. 63 (1974). 20. Jack Ladinsky & Charles Susmilch, The Processing of Consumer Disputes in a Metropolitan Setting, paper presented at the Annual Meeting of the Midwest Political Science Association, Chicago, April 1980. 21. In a later piece Landinsky and Susmilch report that a full 75 percent of consumers with problems take their grievances directly to the providers. See Jack Ladinsky & Charles Susmilch, Com- munity Factors in the Brokerage of Consumer Product and Service Problems 16, paper presented at the Annual Meeting of the Law and Society Association, Toronto, June 4, 1982. 994 AMERICAN BAR FOUNDATION RESEARCHJOURNAL 1982:989 cordingto availableevidence it is typicallyused by individualsand orga- nizationsseeking direct advantageor gain for themselves.These findings indicate a more active decision-makingrole for the individualactor than has been acknowledgedheretofore in much of the literatureon legal services and access to justice.22 A conceptual frameworkorganized around problem solving and dispute resolutiondictates rather different research questions than one organized aroundmobilizing the law. Ratherthan concentratingon the resolution of disputes, with the legal system viewed as one of many possible routes to that end, a legal mobilizationperspective considers the resolution of disputes as one among many reasons to invoke the law as a resource. As Karl Llewellynand Adamson Hoebel noted some years ago, the concept of legality carrieswith it the idea not only of right but of remedy.23In other words, the law creates a cause of action. It specifies the conditionsunder which one who is aggrievedcan use the law as a re- sourceand call on the power of the state for assistance.2In addition, and importantto its educativerole, the law specifieswhat has been authoritatively defined as a legitimategrievance and the conditionsunder which it is appropriateto ask for interventionby outside parties,including public ones. The literaturemakes frequent references,sometimes critically, to the Americanlegal ideology that relies on an aggregationof individualcases to achieve the policy goals articulatedin statutes and judicial decisions.

22. Best and Andreasen's study of consumer complaints laments the failure of many consumers to complain about perceived problems with purchases and blames the lack of proper structures and the limited access to them for this seeming failure. Yet their own data actually support a rational actor hypothesis. For they find that the cost of the purchase and the cost of the problem affect the rate of voicing directly and significantly. That is to say, where the costs are sufficiently high to consumers, they will, as one might expect, be more willing to invest the effort to right the perceived wrong. See Arthur Best & Alan R. Andreasen, Consumer Response to Unsatisfactory Purchases: A Study of Perceiving Defects, Voicing Complaints, and Obtaining Redress, 11 Law & Soc'y Rev. 701, 716 table 8 (1977). It has been noted that the methodology of the Best and Andreasen study was ideologically biased toward a consumer perspective. H. Laurence Ross & Neil O. Littlefield, Complaint as a Problem- Solving Mechanism, 12 Law & Soc'y Rev. 199 (1978). 23. K. N. Llewellyn & E. Adamson Hoebel, The Cheyenne Way: Conflict and Case Law in Primitive Jurisprudence 26 (Norman: University of Oklahoma Press, 1941). 24. Weber relates the same concept in a characteristically complex and highly specified formula- tion:

Sociologically, the statement that someone has a right by virtue of the legal order of the state thus normally means the following: He has a chance, factually guaranteed to him by the consensually accepted interpretation of a legal norm, of invoking in favor of his ideal or material interests the aid of a "coercive apparatus" which is in special readiness for this purpose. This aid consists, at least normally, in the readiness of certain persons to come to his support in the event that they are approached in the proper way, and that it is shown that the recourse to such aid is actually guaranteed to him by a "legal norm." Max Rheinstein, ed., Max Weber on Law in Economy and Society 15 (Cambridge: Harvard Univer- sity Press, 1966) (from Max Weber, Wirtschaft und Gesellschaft 368-85 (Tubingen: Verlag von J. C. B. Mohr, 1925)). No. 4 FRAMEWORKFOR ANALYSIS OF LEGALMOBILIZATION 995

The view that the public good will emergeout of the assertionof individual claims is deeply embeddedin the Anglo-Americanlegal traditionand fits nicely with the individualisticspirit that pervadesAmerican culture.25 Yet despite recognitionof the central role played by individualsin our legal system, little seriousscholarly attention has been accordedto citizen initiativein mobilizingthe law.26 A decade ago the Cahns referredto the "almost mythical centrality which the judicial process presentlyoccupies in the legal order"27along with a recognitionof the hazardsattendant to expandedreliance on legal professionalsfor the enforcementof rights. A researchand social effort that focuses too narrowly on legal professionals in effect, to use the Cahns' term, "disenfranchises"all nonlawyers.Yet the Americanlegal system is structuredso that the citizen's assertionof perceivedrights is central to its operation. In a world with more obedient human beings, full compliancemight be the order of the day. But the realityis that law dependsupon citizen-mobilizersfor its implementation.Accordingly the model of legal mobilization to be presented here focuses on demands ratherthan needs, on citizens ratherthan lawyersor judges, on decision making ratherthan access, and on the invoking of the law ratherthan compliancewith it. Drawingon the literatureand availableempirical evidence, I will attempt to identify the variablesimportant to decisions to mobilize the law. By implicationthis is a call for furtherresearch from this perspective.

25. As a cultural phenomenon the case-by-case approach is not limited to the public legal system. In both rule enforcement and dispute processing in private organizations the same general procedure is followed. For an example of this phenomenon see Steele and Nimmer's study of self-regulation by the bar. Eric H. Steele & Raymond T. Nimmer, Lawyers, Clients, and Professional Regulation, 1976 A.B.F. Res. J. 917. 26. A case in point is a recent publication, divided into six parts with one devoted to "Partici- pants in the Judicial Process." See Sidney Ulmer, ed., Courts, Law, and Judicial Processes (New York: Free Press, 1981). In this book the only consideration given to citizens as participants is in a subsection on the American jury, an institution in declining use even among those cases that actually get to trial. For those that do not get to trial, and for the vast bulk of legal activity occurring outside the courts, the jury is a factor only as its potential involvement may affect negotiations; as a forum for citizen participation it is irrelevant. Nader and Shugart's "Old Solutions for Old Problems" provides a good example of a social change perspective that not so much neglects the individual case-by-case process as it does reject it for failing to deal with underlying inequities. Although Nader and Shugart concentrate on consumer complaints, their work is representative of this genre. Curiously, in rejecting the individual case approach they call for a government agency in the consumer area. However, they fail to recognize that government agencies are themselves subject to the same limitations in their reliance on individual complainants for the initiation of cases. Laura Nader & Christopher Shugart, Old Solutions for Old Problems, in Laura Nader, No Access to Law (New York: Academic Press, 1980). For descriptions of how two government offices created to prosecute fraud evolved into dispute- processing mechanisms by virtue of their responsiveness to citizen demands, see Eric H. Steele, Fraud, Dispute, and the Consumer: Responding to Consumer Complaints, 123 U. Pa. L. Rev. 1107 (1975); Frances Kahn Zemans, Coercion to Restitution: Criminal Processing of Civil Disputes, 2 Law & Pol'y Q. 81 (1980). 27. Cahn & Cahn, supra note 9, at 1008. 996 AMERICAN BAR FOUNDATION RESEARCHJOURNAL 1982:989

1. SystemicImplications-Macro Analysis The centralityof the individual lay decision maker in the American legal process has important implicationsat both a macro and a micro level of analysis.At the macrolevel, by virtueof a legal systemstructured to requireinitiation by the citizenry,individuals in the aggregateset the agendas of courts and regulatoryagencies and are critical actors in the enforcementof the law and more broadlyin the implementationof public policy.28While not sufficient to achievethe resultsdesired, citizen initiative is in almost all cases a requisite of the distributionof legality. Years ago Karl Llewellynwarned that one of the statutorydraftsman's major problemsis "to make sure that his formula, when it becomes an official rule, will not merelybask in the sun upon the books. He must so shape it as to induce its application ... or else ... his blow is spent in air."29More recentlyHarry A. Jones has been one of the few to explicitly discuss the importance of citizens to the efficacy of law (though he unnecessarilyrestricts his observationto privatelaw). "Most preceptsof the privatelaw depend for supporton privateinitiative; if claims are not presentedor suits filed or defenses raised by the persons who stand to benefit from the applicationof a statutory or case-law rule, the rule is likely to remain a dead letter, both in the courts and in the larger society. "30 Philip Selznick31established the systemic import of these insights by showing not only that the applicationof rules dependsupon affected in- dividualsbut that this dependenceshapes the very substanceof articulated

28. Individual action in the legal system is itself highly structured by judicial rules including particularly those dealing with standing to sue. 29. Karl N. Llewellyn, A Realistic Jurisprudence-The Next Step, 30 Colum. L. Rev. 431, 452 (1930). Roscoe Pound made the same point in 1912 in urging legal scholars to pay more attention to making rules effective. "We have studied the making of law sedulously. It seems to have been assumed that, when made, law will enforce itself. . . . But the life of the law is in its enforcement." Roscoe Pound, The Scope and Purpose of Sociological Jurisprudence, pt. 3, 25 Harv. L. Rev. 489, 514 (1912). 30. Harry W. Jones, The Efficacy of Law 21 (Evanston, Ill.: Northwestern University Press, 1969). While this is most obviously true in private law, I have argued elsewhere that the public/private dichotomy in this regard is more confusing than clarifying. See Frances Kahn Zemans, Legal Mobilization: A Special Case of Political Participation, paper presented at the Annual Meeting of the American Political Science Association, Washington, D.C., 1980, for a discussion of the dependence of both the criminal justice system and regulatory agencies on the willingness of injured complainants to initiate cases. Although he does not develop the implications of his statement, Lawrence Friedman does ac- knowledge the similarity between the civil and criminal law with respect to the role of citizen as gatekeeper: "Criminal law, then, is not so very different from contract and tort law whose rules lie sleep- ing until a private citizen brings them to life." Lawrence M. Friedman, The Legal System: A Social Science Perspective 110 (New York: Russell Sage Foundation, 1975). 31. Philip Selznick, Law, Society, and Industrial Justice (New York: Russell Sage Foundation, 1969). No. 4 FRAMEWORKFOR ANALYSIS OF LEGALMOBILIZATION 997 policies.32 In his study of the administration of fair employment legislation Selznick documented the ways in which the commitment to voluntarism in our legal system limits government action, showing how the aims of public policy are actually redefined and public goals attenuated when, as is both the ideal and the practice in American law, action depends on the initiative and participation of affected parties. While in some cases this process may involve bringing a legal action in court, in most situations it operates through individuals invoking a legal norm to regulate behavior. It is at this individual level of enforcement that public policies are asserted and thereby shaped. Thus to understand how public policies are implemented, one must consider the factors that affect decisions to mobilize the law. 2. Individual Motivations-Micro Analysis At the micro level, it is individuals invoking the law who determine which rights have substantive meaning for them and which remedies they receive. With citizen initiative required (except in relatively rare cases) to put the legal system into operation, the perceptions and goals of affected parties bear consideration. Backed by the authority and power of the state, the law is a resource with a potential to be used for any number of different reasons. In some instances the law is mobilized for clearly articulated purposes. Examples might include invoking legal norms to induce compliance with the terms of a contract or to elicit payment for injuries resulting from a tort. In other instances the mobilizer may seek revenge. Even actually going to court may have little to do with getting a judicial disposition. Rather it may be a strategic act intended to affect negotiations; alternatively it may be for the purpose of altering interpersonal relationships.33 And some regulatory investigations appear to be initiated by businesses seeking a competitive advantage.3 Whatever the original motivation, court cases do not comport with the subjective meaning of an incident, the latter being necessarily transformed into legally cognizable terms before it enters the formal legal structure.35

32. The importance of litigant demand to agenda setting in the courts has been documented. See, e.g., J. Woodford Howard, Jr., & Jerry Goldman, The Variety of Litigant Demand in Three United States Courts of Appeals, 47 Geo. Wash. L. Rev. 223 (1978); Gerhard Casper & Richard Posner, The Workload of the Supreme Court (Chicago: American Bar Foundation, 1976), for data on this point for U.S. Courts of Appeal and the U.S. Supreme Court, respectively. There has, however, been a failure to recognize the extent to which the implementation of public policy more generally depends upon the initiative of potentially affected parties. 33. Herbert Jacob, Related Party Disputes in Criminal Courts: Some Data and Speculations About Alternative Functions, in Peter F. Nardulli, ed., The Study of Criminal Courts: Political Per- spectives (Cambridge, Mass.: Ballinger Publishing Co., 1979). 34. Stan Crock, Companies Are Snitching to Feds About Actions of Their Rivals, Wall St. J., June 25, 1980, at 25, col. 4. 35. In practice there are numerous examples of incidents that are not transformed to fit the written law but are handled "legally" nonetheless. A case in point can be found in the Pro Se Small 998 AMERICANBAR FOUNDATION RESEARCH JOURNAL 1982:989

Although interesting theoretical arguments have been made distin- guishingamong cases accordingto a norm or justice motive as opposed to an interestor money motive,36the evidencesuggests that while the ar- ticulation of claims in terms of justice provides ideological support for the use of state power, the goals of those who use the law are con- siderablymore mundane.3 Using data from a Detroit Area Studyof experiencewith and responses to five different problems, Mayhew found little concern with justice. When asked how they would want to solve the problemsthey defined as their "most serious," very few mentioned justice. The proportion of "justice-oriented"responses ranged from 0 percent to 9 percent except for discriminationcases, which, as Mayhew notes, is an area that lends itself to descriptionin terms of justice and rights.38In an earlierstudy of an equal employmentopportunity office, Mayhewsimilarly documented the apparentlylimited role that justice seekingplays in legal mobilization, even in an area most likely to be conceptualizedin terms of rights. Cur- ran's findingsin a national surveyof 29 differentproblem areas are consistent with Mayhew's. Of all the problemssurveyed, job discrimination was the least likely to be pursuedwith a lawyer.39Indeed it is the problem least likely to result in the use of any resource.40 Studiesof consumerfraud show similardistributions of requestedrem- edies. In his study of a state consumerfraud office, Steele found that a mere 6 percentof the complainantswanted only protectionof the public or punishmentof the seller.4'My own work on a county district attorney's office of fraud and consumercomplaints reports the same pattern. Even includingthose who mentionedmultiple remedies, only 6.2 percent of the complainantssought to protect the public, and 7.4 percent mentioned a desire for punishment.42The most common remedyrequested is

Claims Court in Cook County, Illinois, which handles minor disputes of individual plaintiffs acting on their own. In addition to disregarding many of the formalities of civil procedure, that court frequently takes judicial cognizance of disputes that do not seem to have a basis in law. For other examples see Stewart Macaulay, Lawyers and Consumer Protection Laws, Law & Soc'y Rev. 115 (1979); Zemans, supra note 26. 36. Vilhelm Aubert, Competition and Dissensus: Two Types of Conflict and of Conflict Resolu- tion, 7 J. Conflict Resolution 26 (1963); Romoyuki Ohta & Tadao Hozumi, Compromise in the Course of Litigation, trans. Peter Figor, in 6 Law in Japan 97 (1973). 37. This appears to be so even though Western legal systems in general, and the American legal system in particular, have been frequently characterized as highly rights conscious, especially in contrast to Eastern legal systems. See, e.g., Takeyoshi Kawashima, Dispute Resolution in Contem- porary Japan, in Arthur Taylor von Mehren, Law in Japan: The Legal Order in a Changing Society (Cambridge: Harvard University Press, 1963); Pyong-Choon Hahm, The Decision Process in Korea, in Glendon Schubert & David J. Danelski, eds., Comparative Judicial Behavior (New York: Oxford University Press, 1969). 38. Mayhew, supra note 13, at 413. 39. Curran, supra note 2, at 135, 141. 40. Id. at 139, 141. 41. Steele, supra note 26, at 1138. 42. Zemans, supra note 26. No. 4 FRAMEWORKFOR ANALYSIS OF LEGALMOBILIZATION 999

restitution,a findingconsistent with a rationalactor approach.That is to say, most of those who go to the trouble to complain do so in hopes of receivinga measurablereturn on their investmentof time, effort, and in some cases monetaryresources. In simpleterms, a decisionmust be made that the potential benefit is worth the cost, with some considerationof the risk factor. Even Steele's finding that requests for public-oriented remediesare significantlyrelated to the complainant'sincome is consistent with this hypothesis. It is not, as Abel claims, a paradox"that those who have the strongest ground to complain [read: low socioeconomic status] about their treat- ment by society and by the informal and formal dispute institutionsto which they must take their grievances,complain the least, and those who are treatedbetter complain the most."43It is ratherperfectly rational not to expend scarceresources to pursuecomplaints if no positive resultsare reasonablyexpected. At the systemiclevel this may have the unfortunate resultof presentinga pictureof satisfactionwhere none exists, therebyin- hibitingdesirable change. But from the point of view of the typical individual actor, long-runsystemic change does not provide sufficientincen- tive to incur the costs involvedin complaining.44Given the reactivestruc- ture of the legal system, the decisionprocess of those actors who mobilize the law is an appropriateanalytic focus. II. A DECISION-MAKINGMODEL OF LEGALMOBILIZATION There are a numberof benefits to be derivedfrom a decision-making model of legal mobilization,both conceptuallyand in policy terms. First and foremost a decision-makingmodel is consistent with the incentive structurebuilt into the reactive judicial system that parallelsa market economy. Like the marketeconomy it presumesrational actors operating in their own subjective interests.45While neither negating nor making

43. Richard L. Abel, From the Editor, 11 Law & Soc'y Rev. 611, 615 (1977). 44. As if in recognition of the importance of benefits as incentives to citizen participation in law enforcement, there has been an exponential increase in the use of restitution in the criminal justice system. For a detailed and comprehensive discussion of the state of the law regarding restitution, see Alan T. Harland, Offenders, Victims, and Monetary Remedies in Criminal Couts, paper presented at the Annual Meeting of the Law and Society Association, Madison, Wis., June 1980. For an assessment of empirical evidence, see Joe Hudson & Steve Chesny, Research on Restitution: A Review and Assessment, in Burt Galaway & Joe Hudson, eds., Offender Restitution in Theory and Action (Lexington, Mass.: Lexington Books, 1978). 45. That there are severe exogenous limits on these decisions is not to be ignored. But it should be noted that the proposed decision-making model is explanatory rather than normative or prescriptive. An acknowledgment of resource limits on participation in the legal system is not necessarily an endorsement. As the text has made clear, however, neither does such acknowledgment imply that resource theory provides a sufficient explanation for the observable pattern of legal mobilization. A major limitation of a legal system structured to respond to initiation by those whose rights are at issue is that only those incidents easily discernible to the affected party will be subject to the arm of the law. See, e.g., Ross Cranston, Regulating Business: Law and Consumer Agencies (Oxford Socio-Legal Studies Series) (London: Macmillan Press, 1979), for a discussion of this point regarding consumer protection. 1000 AMERICANBAR FOUNDATION RESEARCH JOURNAL 1982:989

light of the psychologicalor financialdifficulties in attemptingto assert rights, a decision-makingmodel implies that these factors act as inhibi- tions on all actors. Indeed this broaderperspective is necessaryto eluci- date a clearerunderstanding of the systemicimpact of these factors. With "needs" relativeto price, the inherentlogic of a cost-benefitanalysis of legal mobilizationbegins to emerge. It is well documentedthat only a small proportionof both civil and criminalcases entering the formal legal system actually continue to judicial disposition.46This has been a subject of concern to the access-to- justice movement, which has focused on the role played by the distribution of the legal profession, caseload, and delay in preventingcitizens from having their day in court. While not formally excludingcases that meet jurisdictionalrequirements, the costs inherent in delay and legal services encourage withdrawal or settlements for less than the law allows.47An alternativeperspective argues that nowherenear all the cases filed are worthy of judicial considerationand the investmentof personal and public funds to pay for it. By filteringout excessivecases these con- straintsthus allow the courts to maintain some efficiency and effectiveness.48 But irrespectiveof the implicationsof restrictionson caseload,explora- tions limitedto those cases that actuallyenter the formal legal systemare destined to present an incompletepicture of citizens' use of the law. A more inclusivescheme is preferablenot only because of the obvious tru- ism that what enters the formal system reflects decisions made earlier. More-importantly,the impact of the law is to a large extent determined by legal mobilizationthat never develops into an actual case in court. That is to say that while compliancewith the law may be purely voluntary, it is more often a responseto an invokingof the authorityof the law and/or implicitor explicitthreats to employ the power of the state to enforce the law. The model presented in figure 1 representsan analytic scheme of participationin the legal systemincluding those variablesthat have been found to influence decisions to mobilize the law. As an analyticscheme the model is meant to clarifybut not necessarily

46. For data on the progression of cases from arrest to disposition in the criminal system see, e.g., James Eisenstein & Herbert Jacob, Felony Justice: An Organizational Analysis of Criminal Courts (Boston: Little, Brown & Co., 1977); for civil cases see Hans Zeisel, Harry Kalven, Jr., & Bernard Buchholz, Delay in the Court (Boston: Little, Brown & Co., 1959). 47. H. Laurence Ross, Settled Out of Court: The Social Process of Insurance Claims Adjustments (Chicago: Aldine Publishing Co., 1970). 48. There is in fact a substantial economic literature that presents predictive models of choice between settlement and litigation. See, e.g., Neil K. Komesar, Toward an Economic Theory of Con- flict Choice, Disputes Processing Research Program Working Paper 1979-2 (Madison: University of Wisconsin-Madison Law School, 1979). I Z SESb (income, community occcupation, expectations F- normsb education) of successb secek assistalnce of result(withdraw, third-iparty settlement,disposition) I- alternaitives lumpit

seek/ 0 perceived . employ court/ / +^bXV TnYP nr- *k aI a - occurrence/ I II v cti;nnI +inn seek advice legal V government problema A services agency

avoidance m P~~~~~~~~~~~~ self-hlelp 0

I- I-m lawpolicyb rights anticipated I/ cons(:iousnessb costsb N- -I aNumerousvariables, including the seriousnessof the bAlthoughfor the sake of claritythese variablesare incident/situation,its salience,duration, and periodicity, shownonly at the pointof the initialdecision in the O andthe natureof the interpersonalrelationships among model,they shouldbe seen as dynamic,having a poten- the actorsinvolved, affect the perceptionof an eventas tial impactat eachdecision point. a problem. zZ

Fig. 1. Model of legal mobilization NOTE: For clarity the diagram represents a simplified form of the model with some of the nonsequential aspects of the model |ee presented in the text. 1002 AMERICANBAR FOUNDATION RESEARCH JOURNAL 1982:989

precisely conform to empirical reality.49The series of decision points that constitute the model are represented sequentially from the initial perception that an incident or circumstance might warrant a response, to a decision to take action, to a choice among possible resources (including legal services), and finally to pursue a case through the courts to disposition. In actual practice these decisions are not necessarily exclusive of one another. For example, the decision to take action may be predicated on the availability of legal assistance and knowledge of its appropriateness to the problem, incident, or circumstance that stimulated the response. In addition, any number of the interim decisions might in practice be skipped altogether, or more accurately made simultaneously. So, for example, a consumer dissatisfied with a product or service might independently and without the advice of others go directly to a small claims court to seek redress.50What the model represents is in fact an ongoing deci- sional process whether or not to continue pursuit of a perceived goal. It is also recognized that the decision-making process may often (or even typically) not be self-conscious. Both the perception of an occurrence and recognition that it may be appropriately the subject of some action are often likely to emerge in daily social intercourse with definitions and opinions subject to the influence of others. Recognizing the inherent limits (as well as potential benefits) of any analytic scheme, one can proceed to an examination of the variables indicated in figure 1 as affecting the likelihood and direction of legal mobilization. The figure is a somewhat simplified representation that does not include some of the connecting arrows to be discussed. As indicated, the six independent variables that are displayed as affecting the decision to take action actually continue to affect the decision-making process and will be so described in the text. Legal mobilization is analogous though not identical to other forms of help-seeking and resource use behavior, with participant initiative the key in each case. The substantial research literature in the health-seeking field

49. Althoughwith more researchit would be possible,no effort is madehere to developa formal mathematicaldecision-making model. The goal is ratherto lay out a frameworkfor analysisbased on availableresearch evidence. 50. To a large extent the sequencerepresented in the model is endorsedby the legal systemand professionalswho serveit. For in most casesa complainantis encouragedto seek an accommodation with an adversaryand/or pursuealternate remedies. In some areasof law thereis even a requirement to exhaustother remedies before seekingredress in the courts. Althoughthe courtshave carvedout numerousexceptions, the standardrule in administrativelaw, for example,is thatjudicial action will be stayeduntil administrativeremedies have beenexhausted. See, e.g., Exhaustionof Administrative Remedies,in KennethCulp Davis, AdministrativeLaw Treatise56 (St. Paul, Minn.: West Publish- ing Co., 1958). Courtsalso defer to the internalprocedures of privateassociations. See Zechariah Chafee, Jr., The InternalAffairs of AssociationsNot for Profit, 43 Harv. L. Rev. 993 (1930). Courtsalso encourageextrajudicial settlement of claims.See Zeiselet al., supranote 46; Ross, supra note 47. No. 4 FRAMEWORKFOR ANALYSIS OF LEGALMOBILIZATION 1003

can, therefore,provide some insights for our inquiryinto legal mobilization.5' In both the medicaland the legal arenasthere are a numberof decisions that must be madebefore an individualassumes the role of patientor client. It is with these early stages of the decisionprocess that my inquiry commences. A. Perceptionof Event or Situation The model beginswith the perceptionof an occurrenceor circumstance as potentiallyin need of a response.52This may be the result of a change in perception or of an actual change in the environment.53While this point may appeartoo obvious to be worth mentioningit is a criticaland often neglectedfactor in understandingwhy so many persons whom the objective observerwould characterizeas suffering a legal wrong fail to take any action, even whereneither competence nor income is a barrierto entry into the formal legal system. Several variablesincrease the likelihood that one will perceivean incident or occurrenceas in need of a response. An incidentor circumstancecan be measuredin terms of salience, duration, and loss, both actual and anticipated.For noncontinuousevents frequencyalso influencesperceptions.54 An increasein any of these variables increasesthe likelihoodthat action will be perceivedas appropriate. Salience is a particularlyimportant variable in understandingthe "failure" of the poor to pursue their legal rights. As in the documented failure to pursue health and welfare benefits,5 the demands of day-to- day existenceand coping with life crises often overrideany consideration of mattersthat may in the future, after the investmentof very scarceresources, resultin the rightingof some wrong. The role of saliencein perceptions is not, however, limited to the poor. Since no one can simultaneously devote attention to unlimited stimuli, choices are continuously required.The effect of the variablescan be illustratedin a simple example. Mr. Jones has a vegetablegarden on his property.Although a neighbor

51. For an overviewof utilizationbehavior studies, see John B. McKinlay,Some Approachesand Problemsin the Studyof the Use of Services-An Overview,13 J. Health& Soc. Behav. 115 (1972). 52. Althoughthe discussionwill be limitedto individualdecision makers, there is nothingin the model that so restrictsits applicability.The singleactor is, however,the easiestto consider.Further- more, this focus is consistentwith the importantpoint that individualactors play a centralrole in the mobilizationof the law in Americansociety. 53. The importanceof problemperception to the help-seekingprocess has long been recognizedin the medical literature.See, e.g., Charles Kadushin,Individual Decisions to UndertakePsycho- therapy,3 Admin. Sci. Q. 379 (1958-59);David Landy,Problems of the PersonSeeking Help in Our Culture,in MayerN. Zald, ed., Social WelfareInstitutions (New York: John Wiley& Sons, 1965). 54. The relevanceof these variablesto perceptionsof crimesand decisionsto notify the police or prosecutoris discussedin FrancesKahn Zemans, Dispute Processing: The Mediumand the Message of CriminalJustice, in Nardulli,ed., supra note 33. 55. McKinlay,supra note 51. 1004 AMERICANBAR FOUNDATION RESEARCH JOURNAL 1982:989 who picks some cucumbersfor his own use without Mr. Jones's permission may be committing both a theft and a tort, the chance that Mr. Jones will react (assuminghis full knowledgeof the incident) is directly relatedto how long this activityhas been going on, how frequently,and how much has been taken (not to mention Mr. Jones's general attitude toward his neighbor).The extent to which this activityis known to other neighbors who might also decide to partake of Mr. Jones's vegetables would affect his anticipatedloss and the likelihood of his perceivinga problem.While the model predictsthat each of these variableshas an influence on perceptionsirrespective of salience, the latter is highly relevant. To elaborate on our example, let us suppose that Mr. Jones has been cultivatinghis garden for many years, developinghis own hybrids, entering competitions, and thereby garnering much adulation. Being highly salient, any disturbanceof the vegetablegarden is likely to cause concern and even response.56 In additionto these factors, some of the variablesshown in figure 1 as influencingthe decisionto take action also affect perceptions.Communi- ty or subgroupnorms and law or policy in particularboth play a strong educativerole in influencinghow events are perceived.Just as the medical literaturedocuments the culturalinfluence on perceptionof physical pain and its impact on seeking medical assistance,57social and legal norms define and thereforeaffect perceptionsof wrongs. Wherea wrong may already have been perceived, social and legal norms can reinforce those views confirmingthe individual'sperception that it is right (appropriate) to feel aggrievedin a given circumstance.The developmentof consumerprotection laws and consumeractivism provide a case in point. B. The Decision to Act The decision to take action is subjectto the influenceof the same variables as are perceptionsas well as to the other variablesdenoted in figure 1. In addition to laws and norms, rights consciousness, socioeconomic status (sEs), anticipatedcosts, and expectationsof success influence (1) the decision whether or not to take action, (2) the kind of action to be taken (includingwhether to invoke the law), and (3) how persistentthe effort to obtain the goal will be. As noted previously,the decisionprocess is in fact a continuous and not perfectly sequentialone, with separate stages delineatedfor analyticclarity. The variablesdenoted in figure 1 as affecting the earliest stages are active throughout the decision-making process.

56. The importance of salience, frequency, and duration of symptoms has been similarly identified in the medical help-seeking literature. See, e.g., David Mechanic, Medical Sociology: A Selec- tive View 130-31 (New York: Free Press, 1968). 57. Mark Zborowski, Cultural Components in Response to Pain, 8 J. Soc. Issues 16 (1952). No. 4 FRAMEWORKFOR ANALYSIS OF LEGALMOBILIZATION 1005

Given the perceptionof a problem or occurrencethe model presents threeresponse options: lumpingit, avoidance,or takingaction. Although lumpingit and avoidanceare often referredto as if synonymous,they are ratherdifferent. Lumpingit is a conscious decision to tolerate the situation in question; it is a decision not to act. Avoidance, by contrast, is more proactive, and it lessens if not eliminatesthe felt wrong by remov- ing it from the actor's direct experienceor vision.58For example, perceived consumerfraud can be ignored(lumped), with the consumerretur- ning to the same merchant,or it can be avoided, by exerciseof the choice to shop elsewhere.The decisionto take directaction to rightthe wrong is of course a third option. Once an incidentor circumstanceis perceivedas potentiallydemanding a response,the decision whetherto take action is influencedby two normative factors:the content of the law and social norms;two attributesof the actor: rights consciousnessand socioeconomic status; and two per- ceptualvariables: expectations of successand anticipatedcosts. To better understandhow each of these variablesaffects the decision-makingprocess it will be necessaryto considereach of these six independentvariables in turn. 1. The Influence of Norms In addition to affecting the perceptionsof problems,decisions to take action and the form of those actions are similarlyand more directlyaffected by social and legal norms. The relationshipbetween them has been a subjectof long-standingdebate. On one hand the law has been characterized as merely an institutionalizationor formalizationof broadly endorsed social norms.59Alternatively, the law has been viewed ratherpe- joratively as a mechanismby which those in positions of power impose their norms on the less powerful.60Perhaps the reason that the debate continuesunabated is the element of truth in both perspectives;it is not that the reality lies somewherebetween these two positions, but rather that there is a continuingtension betweenlaw and social norms. Without some foundationin broad social norms, the law would be unenforceable. On the other hand, were these same norms universallyendorsed there

58. Avoidance is similar but not identical to the concept of exit (the latter requiring a total severance of a relationship) as discussed by Hirshman in his "exit, voice, and loyalty" scheme. Voice, defined as "any attempt at all to change, rather than to escape from, an objectionable state of affairs," is the equivalent of taking action in the model presented here. Albert O. Hirshman, Exit, Voice, and Loyalty: Responses to Decline in Firms, Organizations, and States (Cambridge: Harvard University Press, 1970). For an inquiry into the relationship between social structure and the choice among these alternatives see Felstiner, supra note 19. 59. Paul Bohannan, The Differing Realms of the Law: The Ethnography of Law, 67 Am. An- thropologist 33 (1965). 60. Stanley Diamond, The Rule of Law Versus the Order of Custom, 38 Soc. Res. 42 (1971). 1006 AMERICANBAR FOUNDATION RESEARCH JOURNAL 1982:989 would be little need for the intervention of the powerful arm of the state.61Such a dichotomization,however, is far too simplistic,for in addition to whateverelse the law accomplishes,it does play an educative role by which it informs the society of what has been authoritatively deemed to be appropriatebehavior.62 a) Legal Norms D O To the extent that lawmakingbodies are accepted as legitimate,the rules they endorsewill encourageboth compliancewith and use of the law. For the law informsthe citizenryof the circumstances under which the power of the state can be employed. That is to say, it providesa legal cause of action. For the individualconsidering the possibility of an active responseto an incident, the model predictsthat the in- herentpotential to use the power of the state providesboth a strategicad- vantage and an endorsementto action per se. Where the law providesa mechanismfor legal action, the decisionmaker is thus more likely to take some overt action than to choose avoidance or lumping it.63 The actual decisionto take action and the analyticallydistinct decision to choose legal action may in practiceoften be synonymous.Indeed it is in those cases where the role played by the content of the laws in influ- encing mobilizationis most clear. Recent changesin the bankruptcylaw providesan apt example. In October 1979a new federalbankruptcy code took effect that allows people facing bankruptcyto keep much of what they own by exemptingmany items from the grasp of creditors.In April 1980, 39,494 people filed for bankruptcy;this compareswith 25,897 for the same periodin 197964 (an increaseof more than 50 percent).While in- flation and unemployment surely have contributed to an increase in bankruptcyclaims, the sharp rise reflects statutory changes that have made bankruptcymore palatable. For some this has meant taking legal

61. Judge Learned Hand made a similar observation about the protection of liberty: Libertylies in the heartsof menand women;when it diesthere, no constitution,no laws, no courtcan save it; no constitution,no law, no courtcan evendo muchto help it. Whileit lies thereit needsno constitution, no law, no court to save it. Learned Hand, The Spirit of Liberty 190 (New York: Alfred A. Knopf, 1954). 62. See Johannes Andenaes, The General Preventive Effects of Punishment, 114 U. Pa. L. Rev. 949 (1966), for a discussion of this point. 63. This of course assumes some knowledge of the law, which itself may be limited by the same demographic and perceptual independent variables that affect the decision to take action. In addition the substantive and procedural clarity of the law is a factor in useful knowledge and therefore is important to the assertion of legal rights; Mayhew refers to this as specification. Mayhew, supra note 13, at 410. The legal impact literature has also consistently cited the clarity of an articulated policy and its communication to relevant actors as important variables in predicting its effects. See, e.g., James P. Levine, Methodological Concerns in Studying Supreme Court Efficacy, 4 Law & Soc'y Rev. 583 (1970); Stephen L. Wasby, The Impact of the United States Supreme Court: Some Perspectives (Homewood, Ill.: Dorsey Press, 1970). 64. William G. Flanagan, Debtors File for Bankruptcy at a Record Rate, Spurred by New Code, Recession, Tight Credit, Wall St. J., June 30, 1980, at 4, col. 1. No. 4 FRAMEWORKFOR ANALYSIS OF LEGALMOBILIZATION 1007 action ratherthan employingsome alternativemechanism (credit counseling as an example).For most, however, the change in the law has meant the differencebetween action and no action.65 It must be noted that the law sometimesvirtually precludes alternative routes. That is to say, there are some results over which the state main- tains a monopoly, where the proximate goal is the imprimaturof the state. Divorce is an obvious example. Thus it is not just the existenceof relevant laws but the particularburdens and benefits they impose that will enter into the decision of whetherto mobilize the law. b) Social norms O D At this and later stages in the decision-making process social norms also affect choice and do so in two quite different ways. First, as with the law, we are socializedto believe in and support social norms. In addition, failure to behave in accordancewith those norms may subject one to sanctions. These two effects are not mutually exclusive;indeed the threatand/or impositionof sanctionsplays a part in the very mechanismby which norms are inculcated.6 Like law, social norms influence both the perceptionof wrongs and views about the circumstancesunder which action is appropriatelytaken. They may also dictate the particularkind of action to take. Such norms operate at both the communityand group level. There appearto be, for example,geographical differences in levels of litigiousness.Both the likelihood of making an insuranceclaim after an automobile accident and the likelihood that the issue will be pursuedin the public courts vary by city.67Other evidence indicates that citizensof ruralcommunities are less likely to pursuean adversarialoption than those in largercities.68 "Legal culture"terminology is often used to characterizethese and other differences in use of the law. Although somewhatelusive and somethingof a residualcategory used to explaindifferences not otherwiseaccounted for, legal cultureremains a concept of considerableattention.69

65. Still the avoidancealternative (what the creditindustry calls "skip-outs"-people who move without notice), as always, continuesto accountfor greaterlosses to the creditindustry, according to a spokesmanfor the National ConsumerFinance Association. Id. The choice to "skip out" ratherthan proceedinto bankruptcyeven with substantialexemptions is of coursealso influencedby the cost variable. 66. This mentionof cost as a factor in the impactof social normsdoes not minimizethe importance of cost as an analyticallydistinct variable. It does, however,indicate the interactionamong these variablesin practice. 67. Hunting& Neuwirth,supra note 6; Zeisel et al., supra note 46. 68. StephenDaniels, Civil Litigationin IllinoisTrial Courts:An EmpiricalAnalysis, paperpre- sented at the Annual Meetingof the MidwestPolitical ScienceAssociation, Chicago, 1980. 69. A study of delay in civil court, for example,found evidencethat local legal culturewas the predominantexplanatory variable in the pace of civil litigation. Despite importantdifferences in caseloadand jurisdiction,state and federalcourts in the same locationshad similarpaces of litigation. ThomasChurch, Jr., et al., JusticeDelayed: The Pace of Litigationin UrbanTrial Courts,2 State Ct. J. 3, 41, 45 table 7 (Fall 1978).For a broad-rangingdiscussion of the topic see Friedman, supra note 30, esp. ch. 7, On Legal Culture. 1008 AMERICANBAR FOUNDATION RESEARCH JOURNAL 1982:989

Within a given locale there may of course be numeroussocial groups, each with its own set of norms. Thus, for example,loud public behavior that one group might view as disruptiveand disturbing,another might endorseas "having a good time." Destructionof propertymay similarly be defined as eithervandalism or a childishprank. Even if the more negative label is applied to each of these incidents, group norms may dictate avoidanceor "lumpingit" ratherthan a more active response.To pursue the argumentone step further-that is, to anticipatethe continuingim- pact of social norms in the decision-makingprocess-direct confrontations of the "violators" may be deemed appropriatebut seeking assistance from any third party whetherpublic or privatemay not be. In fact bringing in "outsiders" may be itself considered a violation of group norms. Evidenceof the importanceof group normsto mobilizingthe law is provided by Macaulay in his pioneering study of dispute resolution within a business community. In addition to uncoveringtwo widely accepted substantivenorms ("commitmentsare to be honored" and "one ought to producea good productand stand behind it"), there were clear proceduralnorms dictatingthe circumstancesunder which it is appropriate to invoke the law. The data in this case indicatedonly very limiteduse of the law, with disputes"frequently settled without referenceto the contract or potential or actual legal sanctions."70 Some provocativeexamples of the role of referencegroup normsin the mobilizationof services are provided by the medical literature.A 1966 study of clinics at MassachusettsGeneral Hospital, for example,suggests that the observable differences between the Irish and Italians in their physical symptoms and the actions taken in response to them are ex- plained by variability in reference group situation definition.71 While there is strong evidence from the legal literaturethat relevantreference groupsmay have a similarinfluence at least on the decisionto take action and the kind of action to take, there has been virtuallyno attempt to identify differences accordingto particularsocial groups. Hunting and Neuwirthin their study of accidentcases in New York City, for example, and BarbaraCurran in her examinationof 27 problemareas both document the influence of family and friends in the decision to take action72

70. Stewart Macaulay, Non-contractual Relations in Business: A Preliminary Study, 28 Am. Soc. Rev. 55, 61 (1963). The examples cited in the text have assumed that all those involved in a given situation are members of the same group and share the same social norms. In heterogeneous modern American society that is often not the case. In general, group norms would be expected to support a more active legalistic response against outsiders than against group members. 71. Irving Kenneth Zola, Culture and Symptoms-An Analysis of Patients' Presenting Com- plaints, 31 Am. Soc. Rev. 615 (1966). 72. Hunting & Neuwirth, supra note 6, at 65-66; Curran supra note 2, at 203. No. 4 FRAMEWORKFOR ANALYSIS OF LEGALMOBILIZATION 1009 and of what kind of action to take, but again without systematicgroup level analysis.In pursuingthis kind of inquirythe following factorsmight be hypothesizedas relevantto the impactof a referencegroup on perceptions of issues and decisions to take action: the frequencyof the problems within the group, the relativefamiliarity of group memberswith the problem, and the success rate of group membersin pursuingthe same problem.73Each of these and others merit research. 2. Attributes of the Decision Maker Psychologicaland sociologicalstudies have shown just how important an individual'sattributes are to behaviorand beliefs. While those disci- plines differ on whetherindividual or group-basedattributes are the more important,a decision-makingmodel can appropriatelyconsider both. a) Legal socialization to rights consciousness and assertivenessC 0 While the law establishescauses of action, such authorizationonly provides an opportunity.The action itself is dependentupon individualinitiative. In fact, there appearsto be substantialcultural and individualvari- ation in the extent to which citizensare concernedwith and willingto assert their rights. In common parlancesuch behavioris often referredto as the pursuit of rights as a matter of principle. Typicallysuch references allude to cases where the decision to pursueone's rights is not easily ex- plained by simple economic analysis. Although these may representthe more extreme cases, the hypothesis implied in the model is that the greaterthe rightsconsciousness of an individual,the more likely he or she is to pursue rights generally, irrespectiveof the economic calculation. This is not to arguethat pure economicsdo not play a role. Indeedcost is anotherimportant variable in this decision-makingmodel and will be discussed as such later. Rather it is to argue that rights consciousnessmay help explainwhy many cases are pursuedeven when the cost of doing so exceeds the potential economic gain. Ratherthan knowledgeof the law, this concept representsthe salience of rights on the one hand and the sense of justificationin assertingthem on the other. It incorporatesthe assertivenesspart of Philippe Nonet's definition of legal competenceas one part ability and one part assertive- ness. Legal competence is thus more than passive knowledge of rights and duties. "It is an active and searchingawareness of the opportunities

73. For purposes of discussion the potential actor has been described as a member of only one reference group relevant to an issue at hand. The reality is of course far more complex. For at any point in time an individual may identify with many different groups, any of whose norms may be potentially appropriate standards of behavior. In fact, for the individual decision maker considering action for redress, a conflict in norms may be as effective an inhibitor to action as norms that directly dictate inaction. 1010 AMERICANBAR FOUNDATION RESEARCH JOURNAL 1982:989 offered by law for enhancing one's position in society. One might call this 'law-consciousness.' Another aspect of legal competence is assertive- ness."74 This is to say, knowledge of the law and the technical ability and resources to use it are insufficient to predict mobilization of the law without consideration of rights consciousness. With the law establishing rights to be asserted as well as commands to be obeyed, the acquisition of rights consciousness in a society is basic to understanding the operation of the legal system. While it may be true that "the system socializes individuals to believe they can or cannot avail themselves of various modes of recourse,"75 as Lawrence Friedman puts it, neither the legal socialization literature nor efforts at legal education in the schools give much, if any, attention to the individual initiative required to translate abstract rights into actual legal benefits. i) Legal socialization literature D D The general thrust of research on legal socialization has been toward discovering where and understanding how children learn compliance with the law.76An example of this general perspective is reflected in the following introduction to a study of children's attitudes toward the legal system: "The socialization of children into the legal system includes diverse objectives; children must come to recognize laws, perceive their functions, accurately view their sources, develop relevant attitudes toward those who enforce them, and guide their own behavior to conform to morality and legality."77 Here as elsewhere in most of the literature on legal socialization the notion of asserting one's rights or use of the law by the citizen is given no mention. This approach is consistent with, and in some respects is a sub- category of, the political socialization literature that directs its attention to authority and compliance and the development of requisite attitudes.78

74. Philippe Nonet, Administrative Justice: Advocacy and Change in a Government Agency 8 (New York: Russell Sage Foundation, 1969). 75. Lawrence M. Friedman, The Idea of Right as a Social and Legal Concept, in June Louin Tapp & Felice J. Levine, eds., Law, Justice, and the Individual in Society: Psychological and Legal Issues 69, 70 (New York: Holt, Rinehart & Winston, 1977). 76. Socialization has been defined as the "developmental process through which persons acquire societal orientations and behavior patterns" (June L. Tapp, Cross-National Interview Data, in Leigh Minturn & June L. Tapp, Authority, Rules and Aggression: A Cross-National Study of Children's Judgments of the Justice of Aggressive Confrontations, pt. II, at 1 (Washington, D.C.: United States Department of Health, Education, and Welfare, 1970)). Legal socialization is simply the same concept applied to law and the legal system. For various perspectives on socialization see essays in John A. Clausen, ed., Socialization and Society (Boston: Little, Brown & Co., 1968). 77. Judith V. Torney, Socialization of Attitudes Toward the Legal System, in Tapp & Levine, supra note 75. 78. See, e.g., Joseph Adelson & Lynette Beall, Adolescent Perspectives on Law and Government, 4 Law & Soc'y Rev. 495 (1970); Harrell R. Rodgers, Jr., & George Taylor, Pre-Adult Attitudes Toward Legal Compliance: Notes Toward a Theory, 51 Soc. Sci. Q. 539 (1970). For a similar perspective on political socialization more generally, see Robert D. Hess & Judith V. Torney, The Development of Political Attitudes in Children (Chicago: Aldine Publishing Co., 1967); David Easton & Jack Dennis, Children in the Political System: Origins of Political Legitimacy (New York: McGraw-Hill Book Co., 1969). For an extensive list of research in political socialization generally, No. 4 FRAMEWORKFOR ANALYSIS OF LEGALMOBILIZATION 1011

This perspectiveimplies a conceptualizationof citizenship as involving obedience but not demand, and of law solely as a mechanismof social control, emanatingfrom the ruler and directedtoward the ruled. A more interactiveapproach, more consistentwith the frameworkpresented here, has begun to appearin a limited amount of recent legal socialization literature.Felice Levine and June Tapp, for example, assert that it is "the goal of legal socializationto stimulatelegal reasoningskills that reflecta reciprocalrights consciousness and legal competence."79Ex- trapolatingfrom the legal socializationliterature, which suggeststhat in- dividualsacquire ideas about rules and compliancein a numberof contexts like home and school, Levine and Tapp speculatethat legal competence similarlydevelops in a host of "legal" environments.80This is consistentwith the politicalparticipation literature that has hypothesizedand indeed discoveredrelationships between participatory behavior in family, school, workplace,and the largerpolity.81 Just as participatoryskills are acquiredin nonpoliticalsettings, so rightsconsciousness may be nurtured in numerous "legal" environments.Thus legal competence may, and some say should, be learnedat an earlyage in contextsother than the public legal system. Yet like the legal socializationliterature itself, plannedef- forts at law-relatededucation have focused on complianceand abstract rights with little or no attention to the kind of individualinitiative on which the implementationof rights depends. ii) Law-relatededucation CDD Jean and Edgar Cahn argued that the only way to increasethe legal capacityof the citizenry(which they viewed as a necessityif the averagecitizen was not to be subjectto manipulation by legal professionals)was to teach legal concepts in grade school. Only by understandinglegal concepts would there be developeda belief in the ability to affect one's own destiny.82Yet surprisinglythe ability to affect one's own destiny by using the law is given little attentionin law-related education. The AmericanBar Association's Special Committeeon Youth Educa- tion for Citizenship,the major force behindthe growthof law-relatededucation, describes itself as "created to help young people learn about

including the legal system, see Jack Dennis, Political Socialization Research: A Bibliography (Sage Professional Paper American Politics, Series, 04-002, vol. 1) (Beverly Hills, Cal.: Sage Publications, 1973). 79. Felice J. Levine & June Louin Tapp, The Dialectic of Legal Socialization in Community and School, in Tapp & Levine, supra note 75, at 163. 80. Id. at 169. 81. See, e.g., Gabriel A. Almond & Sidney Verba, The Civic Culture: Political Attitudes and De- mocracy in Five Nations (Boston: Little, Brown & Co., 1965); Peter Bachrach, Interest, Participa- tion, and Democratic Theory, in J. Roland Pennock & John W. Chapman, eds., Participation in Politics (Nomos 16, Yearbook of the American Society for Political and Legal Philosophy) (New York: Lieber-Atherton, 1975). 82. Cahn & Cahn, supra note 9, at 1021. 1012 AMERICANBAR FOUNDATION RESEARCH JOURNAL 1982:989 law, the legal process, and the legal system . . . to ... seek to prepare them for citizenship in a society in which law plays an increasingly important role."83 Their self-designated role to stimulate and promote programs has been reflected in their work as a clearinghouse of information on available materials. A review of several of their published directories84 indicates that topics generally center on the role law plays in the society, the normative underpinnings of legal rules and concepts, and democratic government and an informed citizenry. Only rarely is acknowledgment given to the decision process involved in invoking the law on one's own behalf.85 Like formal efforts at legal socialization generally, the emphasis is on criminal versus civil law and on the structure of government, including the Constitution and the Bill of Rights. The extent to which the realization of these rights is dependent upon individual initiative is not now part of the promoted perspective. This is not meant in any way as an objection to law-related education as currently conceived. On the contrary, the potential benefits of such instruction are wide ranging.86The point is rather that rights consciousness, that active searching for and assertion of rights by the individual citizen that is so central to the operation of the legal system, has been and continues to be neglected in the formal efforts at legal socialization.87 Indeed this may be why rights consciousness is likely to be correlated with particular eth- nic groups or geographical areas. That is to say, the development of rights consciousness that will eventually be an important variable in the citizen's use of the law is dependent upon the legal socialization that has occurred in private and/or substate contexts.

83. American Bar Association, Special Committee on Youth Education for Citizenship, Teaching Young People About the Law (brochure) (Chicago: American Bar Association, n.d.). 84. See, e.g., American Bar Association, Special Committee on Youth Education for Citizenship, Directory of Law-related Education Projects, ed. Jane M. Koprowski (4th ed. Chicago: American Bar Association, 1982); id., Media: An Annotated Catalogue of Law-related Audio-visual Materials (Working Notes, No. 8), ed. Susan E. Davison (Chicago: American Bar Association, 1975); id., Gaming: An Annotated Catalogue of Law-related Games and Simulations (Working Notes, No. 9), ed. Susan E. Davison (Chicago: American Bar Association, 1975). 85. To the extent that individual initiative and the necessary role it plays in implementing the law is addressed at all, it tends to be confined to circumscribed examples such as consumer rights. 86. See Paul A. Freund, Law in the Schools, in Tapp & Levine, supra note 75, at 158, for a thoughtful discussion of the benefits of law teaching as part of the general educational curriculum. 87. The ABA Special Committee on Youth Education for Citizenship is not the only source of materials for law-related education. West Publishing Company produces a Law in Action Series for first to ninth graders (Linda Riekes & Sally Mahe Ackerly, Law in Action (St. Paul, Minn.: West Publishing Co., 1980)), and the Constitutional Rights Foundation and Scholastic Books publish a two-volume work called Living Law (New York: Scholastic Books, 1978). The program and publication that seems to come closest to education in the practical use of the law is from the National Street Law Institute of Georgetown University. In Street Law there is a direct acknowledgment that initiative is required to obtain the benefits of the law. The authors note that it is possible for tenants and consumers to get redress "especially when [they] are aware of their rights and take action to ex- ercise those rights" (emphasis added). Lee P. Arbetmen, Edward T. McMahon, & Edward L. O'Brien, Street Law: A Course in Practical Law 3 (2d ed. St. Paul, Minn.: West Publishing Co., 1980). No. 4 FRAMEWORKFOR ANALYSIS OF LEGALMOBILIZATION 1013

The promotion of rights consciousnessof course has the potential of increasingthe use of the law and thus the workloadof the courts. Indeed therehas been substantialconcern with overworkingour judicialmachinery.88Given the natureof the legal process,the impactof increasedrights consciousnesson the courts can be easily exaggerated.As noted previously most cases in which the law is mobilizednever get anywherenear going to court. For the courts are only a last resortwhen efforts at legal mobilization have failed to achieve an acceptableresult and the goal is sufficiently importantto overcome the costs of invoking the state's judicial apparatus.In addition, a democraticsociety with a reactivelegal system requiresa competent and proactive citizenry. The alternativeis an increased dependenceon legal professionalswhose services are of course not equally distributedthroughout society. Lawyersin the continuousemploy of those whose rightsthey represent (eitheron a retaineror as house counsel) can serve as the client's rights consciousnessby providing for their clients that "active and searching awarenessof the opportunitiesoffered by law" that Nonet characterized as legal competence.89However, for the vast majorityof individualciti- zens who do not continuously employ legal counsel (and for whom it would not be economicallyrational to do so), legal socializationto height- en rightsconsciousness is importantto the implementationof public policy. Indeedthe distributionof rightsconsciousness may help explainwhy some public policies are more likely than others to be effectively implemented. This is a corollaryto the point made by JusticeBlackmun in the Bates decisionin his responseto the argumentof the State Bar of Arizona, that lawyer advertisingshould be prohibitedbecause use of the courts would increase if people learned of their rights. "Although advertising might increasethe use of the judicialmachinery, we cannot acceptthe notion that it is alwaysbetter for a person to suffer a wrong silentlythan to redressit by legal action."90 The model of legal mobilizationincludes rights consciousness as an important variablein predictingmobilization of the law. As the above discussion indicates,rights consciousnessitself is influencedby the legal so-

88. See Thomas Ehrlich, Legal Pollution, N.Y. Times Mag., Feb. 8, 1976, § 6 at 17, for a much quoted critique of the use of the law. A more recent and somewhat different approach can be found in Laurence Tribe, Too Much Law, Too Little Justice, 224 Atlantic, July 1979, at 25. In systems terms this is a form of demand overload that could potentially threaten the institutions. Chief Jus- tice Burger, among others, has been a strong supporter of the development of alternative mechanisms of dispute resolution (e.g., neighborhood justice centers) as a way of avoiding system overload. Alternative mechanisms will be discussed later; for the moment it is sufficient to note that rights consciousness encourages the assertion of rights but not necessarily use of the formal state legal machinery. Indeed activating alternative mechanisms depends upon individual initiative. 89. Nonet, supra note 74, at 8. 90. Bates v. State Bar, 433 U.S. 350, 376 (1977). 1014 AMERICAN BAR FOUNDATION RESEARCHJOURNAL 1982:989

cializationprocess. While the position of rightsconsciousness in the model suggeststhat it affects the decisionwhether or not to take action at all, it also influencesthe very perceptionof an incidentas potentiallyin need of a response. As with other variables discussed, rights consciousness continues to operate throughoutthe decision-makingprocess illustrated in the model. In each instance where there is a choice between actively proceeding(whether in the legal system or some alternativemechanism), the greaterthe rights consciousnessthe more likely the issue will be pursued.91 b) Socioeconomic status 00 The access-to-justiceand legal needs literaturehas to some extent been inspiredby a concernthat equal justice under the law has little meaningif its availabilityis directlyproportional to socioeconomicstatus. The three componentsof this variable(occupa- tion, education, and income) are each thought to affect use of the law somewhat differentlybut all in the same direction.92That is to say, the greaterthe education, income, or occupationalstatus, the greaterthe access and thereforethe greaterthe opportunityto use the law. Perhapsthe most obvious, and generally neglected, explanation for what some re- searchersconclude is underutilizationof the law by those of lower socioeconomic status is their absorptionin personalproblems. Simply coping with currentlife crises may overrideconcern for the less proximateand highly contingent benefit providedby the law. Among the indicatorsused to measuresocioeconomic status, the impact of income is the clearestand most direct. With professionallegal assistance often necessary to legal mobilization and in particularto the initiationof the state legal machinery,the cost of legal servicesmay be an important barrierto use of the law.93While free legal services for the poor in civil cases expandedenormously in the 1960swith federalfinanc- ing of the OEOLegal ServicesProgram (later incorporatedinto the Legal Services Corporation), it is limited to the very poor and to certain substantiveareas of the law.94And even though legal mobilization,as has

91. As importantas rightsconsciousness is to mobilizationof the law, it is a particularlyelusive variablefor empiricalinquiry. The potentialfor researchto test the validityof the model as a whole will be discussedlater in the article. 92. The threedirect measures of education,income, and occupationcan be combinedin a variety of ways to develop a socioeconomic(SES) index. The simplestis to standardizeeach measureand add them, giving equal weight to each. For an exampleof typical questionsand a coding scheme used to measuresocioeconomic status see SidneyVerba & NormanNie, Participationin America:A Political Democracyand Social Equality, 365-66 app. C (New York: Harper& Row, 1972). 93. A contingentfee arrangementby whichthe lawyeris paid a percentageof the awardhas only limitedapplicability for the poor, whose legal claimsare often too small in dollaramount to justify the investmentof counsel'stime. 94. The future of the Legal ServicesCorporation is now uncertain,with the Reaganadministra- tion on recordin oppositionto continuingfunding for it. TheirFY 83 budgetproposal delivered to CongressFebruary 8, 1982, includedno separatefederal funding for the LegalServices Corporation, with currentfunding to be used for close-outfunctions. ABA GovernmentRelations Office Memo- No. 4 FRAMEWORKFOR ANALYSIS OF LEGALMOBILIZATION 1015

been continuouslyargued herein, most frequentlyoccurs without the actual assistanceof legal counsel, that does not renderthe cost of counsel irrelevant.For the known inability to pay for counsel criticallyunder- mines the effectivenessof invoking the law. With the assertionof legal rights implying the threat to use the power of the state, the extent to which one cannot afford to pay for the professionalassistance necessary to get the state to act, one's threat to do so is hollow. Thus the unequal distribution of economic resources ought to affect legal mobilization however broadly conceived. The assumedeffects of educationand occupationon use of the law are mediated through legal competence and social networks. As Carlin, Howard, and Messinger95noted in their highly influentialwork, the perceived competenceto use the legal system includesseeing oneself as pos- sessingrights and seeing courts as forums that can be used. The expectation is that the higherthe educationallevel, the more likely personsare to see themselvesas possessing rights and as capable of using the courts. Because of the complexitiesof the legal process and its dependenceon argumentation,the more educatedare assumedto actuallybe more capable of using legal machinery.The more educated may simply be more adept at articulatingtheir demandsin terms cognizableby the courts. In any case, data from a study of debtorsin Wisconsinsupport this analysis at least to the extent of finding a positive relationshipbetween education and a self-perceivedability to effectively employ the courts.96 Occupationalstatus, which is itself highly correlatedwith income and education, is hypothesizedto have its own independenteffect on use of the law. In part, legal competence, in both its ability and aggressiveness parts, is thought to be relatedto higher status. But in addition, those in higher status occupationsare presumedthrough social networksto have more direct and vicarious knowledge of the circumstancesunder which and means by which the law can be successfullyused. The available evidence on the actual relationshipbetween socioeconomic status and legal mobilization, however, presents a substantially more complexpicture than much of the literaturehas implied. For example, evidencesuggests that those who seek legal assistanceare able to find it. NeitherCurran in a nationalstudy nor Mayhewand Reiss in a Detroit area study found evidence that those seeking a lawyer could not find randum,Feb. 16, 1982.The administration'scontinuing dissatisfaction with the LegalServices Cor- porationis reflectedin PresidentReagan's decision to withdrawhis nine nominationsto the board. StuartTaylor, Jr., ReaganWithdraws 9 Nomineesto Legal Unit, New York Times, Dec. 12, 1982, at 11. 95. Carlinet al., supra note 4. 96. In that studya judicialefficacy score was derivedfrom responsesto a seriesof five questions. See Jacob, supra note 6, at 259 table 8.1 note a. 1016 AMERICANBAR FOUNDATION RESEARCH JOURNAL 1982:989

one.97 While the decision to search for legal assistance may itself be a function of the perceived ability to find and hire one, that relationship has been left largely unexamined. It also appears that the impact of socioeconomic status on the decision to take action (as well as on the choice of what action to take and on the decision to pursue a case into and through the formal legal machinery) may be issue specific.98 That is to say, there seems to be substantial variability in the effects of socioeconomic status (and, I should add, a number of other variables) according to the substantive issue of concern. Curran, for example, found that mean use of lawyers does not vary by income or education,99 but variability does appear when the specific issue is con- trolled. As cases in point, those with higher income are less likely to use lawyers in torts and juvenile matters and more likely to do so in other areas. Education also affects lawyer use in some areas when the issue is held constant. For debtors, the discovered relationship between socioeconomic status and judicial efficacy mentioned above does not translate to actual use of the courts.'10 That is to say that while socioeconomic status is related to perceived efficacy with judicial machinery, it does not predict to bringing cases to court. Using courts is of course not the equivalent of using the law or taking action more generally. New York accident victims of higher SES were found less likely than those of lower status to retain a lawyer but more likely to take some action.'°1 In the consumer area, Arthur Best and Alan R. Andreasen found that among the white population complaints vary directly with SES, but the pattern does not repeat itself among the black population.'02 A study of disputes in suburban New York found that middle-class people were less likely than working-class people to mobilize the law for some purposes. In particular members of the middle class tended to avoid using the law in personal matters.'03 Curran's findings indicate that the variability reported in these various studies is not just a function of differing research designs.104To some ex-

97. Mayhew & Reiss, supra note 12; Curran, supra note 2. 98. Hurst argues that "common vulnerability to pain and suffering and the omnipresence of insurance companies . . . might make social class less determinative in [torts] than in other fields as to the character of the parties who litigated." James Willard Hurst, The Functions of Courts in the United States, 1950-1980, 15 Law & Soc'y Rev. 401, 423 (1980-81). 99. Curran & Rosich, supra note 17, at 153, 158. 100. Jacob, supra note 6. 101. Hunting and Neuwirth discovered that while 27 percent of those of low SES failed to take some action, only 2 percent of those of high SES failed to do so. But of those who did act, persons of high SES were less likely to retain lawyers (72 percent as opposed to 95 percent for low SES). The obverse of this finding is that higher status respondents were more likely to act by self-help than were those of lower status (28 percent to 5 percent). Hunting & Neuwirth, supra note 6, at 68, 98. 102. Best & Andreasen, supra note 22. 103. Baumgartner, supra note 6, at 2-3. 104. Curran, supra note 2. No. 4 FRAMEWORKFOR ANALYSIS OF LEGALMOBILIZATION 1017 tent it is relatedto differencesin the extent to which issues are what May- hew calls "law infused."105But it also relatesto other variablesspecified in the model, including the availabilityof alternativemechanisms. The existenceof the insuranceindustry, for example, makes auto accidentsa very special case. To the extent to which knowledgeof availablealterna- tives generallyand the competenceto use them are status related, there may then.be found an inverse empiricalrelationship between status and use of formal legal machinery. This would explain Hunting and Neu- wirth's findings mentionedabove.106 Thus although those with more resources may be more likely to see the need for and be able to purchase legal services,they are also more able to avoid the formallegal machinery by finding alternativesolutions. In addition, as Mayhewand Riess have noted, a resourcetheory of legal representationalso fails to account for the extent of use of legal servicesthat does occur among those who have the least resources.107 Findingsreported in the medical literaturesuggest that the discovered relationshipbetween social status and use of servicesmay be mediated through referencegroups. One study, for example, concludes that the differencesfound in immunizationrates among different socioeconomic status groups can be explainedby the influence of friends and reference groups.108The documentedclass differencesin polio vaccinationswere directlyrelated to positive responsesto perceivedexpectations of respondents' friends. When the friendshipfactor was held constant, there were no significant differences in immunization rates between classes. Al- though the study leaves the relationshipbetween class and expected behavior unexplored,it has enormousimplications for the sociolegallitera- ture. If the evidence supports the hypothesis that persons respond to health problemsand utilizehealth facilitiescommensurate with the expectations of their friendsand referencegroups,109 and if that is the explanation of the class differencesin the actual use of health services,then the same analysis may apply to the use of legal services. As noted previously, the class differences in the use of legal services have been attributedin large measureto income disparitiesand the cost of legal services(they have also in part been attributedto a skeweddistri- bution of legal competence).What is suggestedhere is that group norms may be limiting use of legal services both by socializing members to group definitions of appropriatebehavior (includingthe circumstances

105. Mayhew, supra note 13. 106. Hunting & Neuwirth, supra note 6, and findings cited in note 101 supra. 107. Mayhew & Reiss, supra note 12. 108. Robert R. Gray, Joseph P. Kesler, & Philip M. Moody, The Effects of Social Class and Friends' Expectations on Oral Polio Vaccination Participation, 56 Am. J. Pub. Health 2028 (1966). 109. Id. at 2029. 1018 AMERICANBAR FOUNDATION RESEARCH JOURNAL 1982:989

under which it is appropriateto mobilize the law) and by the threatened or actual imposition of costs on members for failure to follow group norms. In the area of consumercomplaints this hypothesismay account for what has been called "an upper class tendencyto perceivean imper- fection [in purchasedgoods] as a grievanceto be redressedrather than as a drawbackin a product that is, on the whole, satisfactory.""0This approach, while again emphasizinggroup norms as an independentvari- able, may also account for the variationby specific issue area in the direction and degree of impact of socioeconomicstatus on the decision to act in the face of a perceivedproblem. 3. Perceptual Variables Any decision-makingmodel by its very natureimplies some cost-benefit analysison the part of the decision maker. While some limited attention has been directedto employinga cost-benefitapproach to the study of compliance,"' it has been generallyignored in the literatureon use of the law. That is not to say that cost has not receivedattention. On the contraryit has been a variableof considerableinterest. Yet, as discussed previously,the recent literaturethat has focused on access to justice has characterizedcost (which it has tended to define in purely monetary terms) as a barrierto justice ratherthan as one among a numberof factors consideredin the decisionto mobilizethe law. Whetherthe ultimate benefit receivedis worth the investmentin costs is a subjectiveevaluation left to the decision maker. However, whateverthe valuation placed on the benefit, the calculationis mediatedby the level of expectationof success. Though expectationsof successmight be consideredan aspectof the cost variable, its distinctivenesswarrants treating it separately in the model. a) Expectations of success E In a decision-makingframework it may appear rather obvious that one's expectationsof success influence both the decisionto act and the kind of action to take. Yet becausea decision-makingperspective has not generallybeen taken, alternativehy- potheseshave been offered to explainthe evidencethat reasonableactors' expectationsof successaffect participationin the legal process. Most pro- nounced among the evidenceis the consistencyof the finding that plaintiffs in civil litigation are more likely to succeed than are defendants. Craig Wanner'sexamination of civil trial courts in Baltimore, Cleve-

110. Eric H. Steele, Two Approaches to Contemporary Dispute Behavior and Consumer Prob- lems, 11 Law & Soc'y Rev. 667, 673 (1977). 111. Roger V. Stover & Don W. Brown, Understanding Compliance and Noncompliance with Law: The Contributions of Utility Theory, 56 Soc. Sci. Q. 363 (1975). No. 4 FRAMEWORKFOR ANALYSIS OF LEGALMOBILIZATION 1019

land, and Milwaukeeshows consistentlyhigh levels of plaintiff success.112 He concludeswith implicitdisapproval that "successand failureat litigation are unequallydistributed among the litigantsin such a way that the trial process generallyratifies the demandsmade by plaintiffs."13 Yet if suits are filed under appropriateconditions, plaintiffs would be expected to be more likely to succeedthan defendants.Indeed one role of professional counsel is to advise clients as to the likelihood of success in court prior to filing litigation. While litigationmay be used for latent purposes includingharassment or as part of a strategyin another arena, by and large we can assume that most plaintiffs go to court to win. Wanner's data thus supportthe notion that plaintiffs are rational actors operating ratherskillfully. A broad range of small claims studiescan be similarlyinterpreted. For while small claims courts have been a particularfocus of condemnation for their alleged favoring of corporate actors,14 the evidence indicates that plaintiffs generally, whether individualor corporate, tend to win. Although some of the plaintiff successrate is attributableto defaults, the plaintiff advantageholds up for contested trials as well. Thus Barbara Yngvesson and Patricia Hennessey in their survey of studies of small claims courts report that the plaintiff success rate in contested cases ranges from 71 percentto 100 percent.15 In addition, and perhapsmore persuasively,the plaintiff advantagein defaultsdoes not disappearin courtsthat limit plaintiffsto individuallitigants. Thomas L. Eovaldi and Peter R. Meyersreport that of the cases that end before trial in the Cook County Pro Se Court (whereclaims are limitedto $300 and only individualscan bringsuit) 40 percentare default judgmentsfor the plaintiff.116Of the cases that do go to trial, close to 81 percentend in success for the plaintiff.117 A National Center for State Courts study of 15 small claims courts around the country similarlyfound that almost 67 percent of the plaintiffs won their cases, includingdefaults. If limited to those that actually

112. Craig Wanner, The Public Ordering of Private Relations, Part Two: Winning Civil Court Cases, 9 Law & Soc'y Rev. 293 (1975). 113. Id. at 305-6. 114. See, e.g., Beatrice A. Moulton, Note, The Persecution and Intimidation of the Low-Income Litigant as Performed by the Small Claims Court in California, 21 Stan. L. Rev. 1657 (1969); Small Claims Study Group, Little Injustices-Small Claims Courts and the American Consumer: A Pre- liminary Report to the Center for Auto Safety (2 vols. Washington, D.C.: Center for Auto Safety, 1972). 115. Barbara Yngvesson & Patricia Hennessey, Small Claims, Complex Disputes: A Review of the Small Claims Literature, 9 Law & Soc'y Rev. 219, 246 table 7 (1975). 116. Thomas L. Eovaldi & Peter R. Meyers, The Pro Se Small Claims Court in Chicago: Justice for the "Little Guy"? 72 Nw. U. L. Rev. 947, 976 table VI. Another 43 percent are settled before trial, but no data are provided regarding success rates for the various actors. Id. 117. Id. 1020 AMERICANBAR FOUNDATION RESEARCH JOURNAL 1982:989

went to trial, the plaintiff success rate is over 85 percent."8These findings, includingparticularly the higher success rate for cases that went to trial (i.e., where plaintiffs made greater investments),support the hypothesis that the greaterthe expectationof success, the more likely the pursuanceof a case. They also indicate that the screeningof cases, including the self-selectionprocess by litigants, is operatingeffectively at least to the extent that it is filteringout invalidclaims.119 As if in response to accusationsof systematicclass bias in the small claims courts, the Na- tional Centerfor State Courtsstudy finds consistencyin the plaintiff success rate irrespectiveof whetherthe defendantis an individualor a corporation.120The overwhelmingsuccess of plaintiffs in contested trials is also maintainedregardless of the education,income, or race of the plaintiff.121 The examplescited to support the hypothesis(that the greaterthe expectationof success, the more likely the action) have been limitedto public court action only becauseof the availabilityof data from the context. The frameworksuggests, however, that the expectationof success variable, like the other independentvariables discussed, operates at each decision point. The implicationis that the decision to take any action, including direct contact of an adversary,seeking advice, and pursuingal- ternativemechanisms as well as enteringthe formal legal machinery,is invariablyaffected by the actor's expectationof success. Indeedthe selection of one option over anotheris directlyaffected by expectationsof rel- ative success in different contexts. In support of a general effect of the expectationof success variableand the reasonablenessof its application to the decision-makingprocess, Hunting and Neuwirth found that two and one-half years after the accidents studied, 79 percent of those who took some kind of action (the equivalentof 64 percentof the total sample) had receivedpayment.'22 Ladinsky and Susmilchreport that 60 per-

118. John C. Ruhnka, Housing Justice in Small Claims Courts, 47 table 4.1, 51 table 4.3 (Wil- liamsburg, Va.: National Center for State Courts, 1979). 119. These data do not of course speak to the possibility that there are other valid claims that are being filtered out as well. 120. Ruhnka, supra note 118, at 53 table 4.5. 121. John C. Ruhnka & Steven Weller, Small Claims Courts: A National Examination 57 tables 3.18, 3.19, 3.20 (Williamsburg, Va.: National Center for State Courts, 1978). A favorable disposition is the indicator of success in all of the studies cited. Although judgments must be executed before the plaintiff may be considered genuinely successful, in the courts studied the collection rate is relatively high, particularly for contested trials. In the National Center for State Courts study of small claims courts, e.g., more than 70 percent of the plaintiffs reported being able to collect the judgment after contested trials, irrespective of the assistance of an attorney. Not surprisingly the collection rate for default judgments was substantially lower (60 percent with an attorney, 34 percent without). In almost all cases the entire amount of the judgment was collected. Id. at 166 table 7.4, 7.5. 122. Hunting & Neuwirth, supra note 6, at 39. No. 4 FRAMEWORKFOR ANALYSIS OF LEGALMOBILIZATION 1021

cent of the Milwaukeeconsumers who complainedto providersreported full success, with another 9 percent partiallysuccessful.'23 Expectationsare, of course, influenced by experience,both personal and vicarious. The model thus contains a feedback loop from result to expectationof success, but since this relationshipis sequential,it is the result in an earliercase or cases that affects expectations.There is some evidence that a positive experiencewill increasethe likelihood of repeated action in a similarsituation and that a negativeexperience will decrease it. The New York accident injury victims studied by Hunting and Neu- wirth are illustrative.Of those who had no previousaccident experience, 87 percenttook action. The pattern not only is different for those who had been involved in an earlier accident but is directly related to the recovery of damages. Of the respondentswho had been in an accident previouslybut had not recoveredany damages, 75 percentsought damages for their subsequentaccident injuries. The comparablefigure for those who had previouslyrecovered damages is 95 percent.124 The linkage between experienceand expectationsof success may be mediatedthrough attitudinal change, most particularlythrough the development of judicial efficacy in the course of litigation. Yet the available evidence leaves this linkage highly questionable. In his study of delin- quent debtors, for example, Jacob found that those with experiencein the courts felt less efficacious toward them than those without it.125Not very surprisinglyattitudes were correlatedwith levels of success: those whose contact with the courts was beneficial (i.e., remedialas in bankruptcy) felt more judicially efficacious than those whose experiencewas threatening(i.e., punitive as in garnishmentproceedings).126 Extrapolatingfrom these findingsto reach a conclusionthat a positive experiencein court contributesto judicialefficacy and thus to greateruse of the courts must be temperedby the possibilitythat the levels of judicial efficacy precedeinvolvement in the courts in the first place. With little else separatingthe bankruptsfrom the garnishees,level of judicial efficacy, were it measuredbefore the debt delinquency,might have been the best predictor to bankruptcyversus garnishment.Indeed evidence concerningcitizen contact with other governmentagencies indicates that a negative experiencehas a negative impact on perceptionsof agencies (and of the benefits of contactingthem), while a positive experiencehas

123. Ladinsky & Susmilch, supra note 21, at 17. 124. Hunting & Neuwirth, supra note 6, at 71. 125. Jacob, supra note 6, at 267. 126. Id. at 268. 1022 AMERICANBAR FOUNDATION RESEARCH JOURNAL 1982:989 little or no effect.'27 In the legal context it is not yet clear whether even success using the legal process in one area is extrapolated to mobilizing the law in another issue area. The longitudinal studies necessary for ex- amining the impact of personal and vicarious legal experience on future mobilization have yet to be undertaken. b) Cost D D Cost is perhaps the most obvious influential variable in the decision to mobilize the law. As indicated previously, the monetary costs of using public legal machinery has been a main focus of the criticism directed at restrictions on access to justice. However, while these costs are not insubstantial, especially when professional counsel is required for effective use of formal legal structures, the cost variable must be conceptualized much more broadly if it is to fairly represent the costs that the decision maker must consider in determining whether to mobilize the law. Time and convenience, social relationships and reputations, and financial requirements are all costs that must be borne in legal mobilization. Like the other independent variables discussed above, costs in all of its permutations affect each decision point in the model. Some costs rise geometrically when the public legal system is formally entered, but each plays a role at every stage in the process of legal mobilization. Because of the uncertainty and high risk involved, actual adjudication makes some of the costs even more inhibiting in that context. i) Time and space D]D Time and personal inconvenience, although given only scant attention in the legal literature, have long been viewed as centrally important in political participation more generally.128As early as the publication of the Federalist Papers, time was seen as a limitation on active political participation; as characterized then, it was recognized that at some point legislators must return to their fields.129Legislators no longer must return to their fields,130but time is no less a critical factor in

127. Several studies in different contexts confirm that negative experience with governmental actors affects attitudes toward government agencies. The same studies indicate that the obverse fails to occur. That is to say, a positive experience does not seem to generate positive attitudes. See, e.g., Daniel Katz et al., Bureaucratic Encounters: A Pilot Study in the Evaluation of Government Serv- ices (Ann Arbor, Mich.: Institute for Social Research, 1975); Herbert Jacob, Black and White Per- ceptions of Justice in the City, 6 Law & Soc'y Rev. 69 (1971); Hartmut Koch & Gisela Zenz, Erfahr- ungen un Einstellungen von Klagern in Mietprozessen, in Manfred Rehbinder & Helmit Schelsky, eds., Zur Effectivitat des Rechts, vol. 3, Jahrbuch ftr Rechtssoziologie und Rechtstheorie 509, 527-28 (1972) (a study of lawsuits between landlords and tenants in three German cities). Hunting and Neuwirth's discovered relationship between positive experience and likelihood of repeat behavior is not necessarily inconsistent with these findings. For even if attitude toward an institution is relevant to use of it, as indicated in the model, there are numerous other variables that may well overcome a negative attitudinal variable. Hunting & Neuwirth, supra note 6. 128. For a discussion of legal mobilization as a form of political participation see Zemans, supra note 30. 129. David Easton, A Systems Analysis of Political Life 124 (New York: John Wiley & Sons, 1965). 130. The occupations from which legislators are drawn do tend to permit long periods of flexible or free time. See Occupational Profile of State Legislatures: 1979 (New York: Insurance Information Institute, 1979). No. 4 FRAMEWORKFOR ANALYSIS OF LEGALMOBILIZATION 1023 political participationin general or in seeking a benefit from the law in particular. Any proactiveresponse involves some investmentof time. In the earliest stages of legal mobilization,time is more manipulable,with the assertion of a claim, the seekingof informaladvice, and even the activationof some alternativemechanisms all manageablein nonworkinghours. But once the formal legal system is entered,much of the activityis restricted to regularworking hours. The wheels of justice in the courtroom,as it is said, move very slowly. In the classic work in the field, Zeisel, Kalven, and Buchholz document the hours invested by judges in seeing cases through trial, with the averagetime per disposition amountingto 131/4 hours.131The litigant's time burdensare of course greater. Time requirementsare often connectedwith space; indeed, distanceis one measure of inconvenience.The farther away one's adversary,and one's advisors, and the farther away are counsel and the courts to be found, the greaterthe inhibition on legal mobilization.Stated the other way, the greater the proximity of actors and institutions that must be contacted, the less inconvenientand less time consumingis the action. Distancealone appearsto affect both the initiationof court cases and the likelihood of appeal, as one report for the National Center for State Courts has described: The long distancesmean travel, eitherfor the judge and other court per- sonnel or for litigants. A multicountydistrict or circuit is necessaryto justify a full-timejudge, who must visit each of the counties severaltimes per year. . . . [L]itigants,witnesses, and jurors must travel to the court whenevera court day is scheduled.... Partiallybecause of the reduced need to travel, the Connecticutjudge can attendto the court needs of three times as many persons as the averageWyoming judge.'32 While little systematic evidence is available, the distances litigants must travel in such a jurisdictionare likely to inhibit the bringingof legal action. There is some historical evidence that this logic holds up empirically. A study of civil cases in China in the nineteenth century presents data that the farther the plaintiff was from the court the less his ability to prosecute his case.133Furthermore the higher levels of litigation found in urban areas and typically attributedto both a high density of interactionand more role-specificrelationships may in part be due simply to the greater

131. Zeisel et al., supra note 46, at 39 table 13. 132. E. Keith Stott, Jr., Theodore J. Fetter, & Laura Crites, Rural Courts: The Effects of Space and Distance on the Administration of Justice, Pub. No. R0032, at 7 (Denver: National Center for State Courts, 1977). 133. David C. Buxbaum, Some Aspects of Civil Procedure and Practice at the Trial Level in Tan- shui and Hsinchu from 1789 to 1895, 30 J. Asian Stud. 255 (1971). 1024 AMERICANBAR FOUNDATION RESEARCH JOURNAL 1982:989 physical availability of the state legal machinery. This same argument has been postulated to explain the variability in appeal rates from different U.S. district courts within the same circuit, with the highest rates from those that sit in the same cities as the courts of appeal.34 ii) Social costs D D The burgeoning dispute resolution literature has given a considerable amount of attention to social costs. The most frequent theme has been the destructive impact of adjudication upon interpersonal relationships and the consequent need for more mediative settlement procedures. As a zero-sum game that entails a finding of blame, the adjudicative process has been criticized as particularly inappropriate to the resolution of disputes between individuals who expect to maintain their relationship after the settlement of the dispute at hand.35 The same applies to business relationships. Willard Hurst in fact argues that there is a direct relationship between size of firm and hesitancy to engage in litigation by virtue of the need to protect a reputation for future dealings. "The larger the business firm and the more dependent its interests on long-term confident, harmonious relations with a network of others in the community-investors, credit sources, suppliers, customers, elected officials-the more likely it will shun the publicity that may attend lawsuits."'36 While the focus of criticism has been on the public courts, there has been a general indictment of the paucity of more mediative and therefore more ameliorative extralegal mechanisms to handle disputes in this country.137Without getting diverted into an in-depth discussion of the dispute

134. Howard & Goldman, supra note 32. 135. It is now well accepted that so-called dispute resolution procedures often only process rather than actually settle a dispute with any finality. This is itself related to the interpersonal relationships involved. For a recognized dispute between individuals who have had a long and multiplex relationship is often only a periodic episode in a longer underlying grievance. See Max Gluckman, The Ju- dicial Process Among the Barotse of Northern Rhodesia 19 (Manchester, Eng.: University Press, 1955). This observation may even hold for actual adjudication in public courts. See, e.g., Jacob, supra note 33. 136. Hurst, supra note 98, at 422. 137. Anthropologists have described dispute resolution mechanisms from other cultures that they deem more beneficial to continued relationships, some of which they have suggested transplanting to the home shores. For a discussion of different dispute-processing mechanisms see, e.g., Laura Nader, Styles of Court Procedure: To Make the Balance, in Laura Nader, ed,. Law in Culture and Society 69 (Chicago: Aldine Publishing Co., 1969); Laura Nader & Harry F. Todd, Jr., eds., The Disputing Process-Law in Ten Societies (New York: Columbia University Press, 1978). For a strong argument about the preferability of an institution from another culture see James L. Gibbs, Jr., The Kpelle Moot, in Paul Bohannan, ed., Law and Welfare (Garden City, N.Y.: Natural His- tory Press, 1967). Felstiner argues against the transferability of mediative mechanisms to technologically complex rich societies such as the United States: Mediation is no longer feasible because, whatever the shared general social and cultural experience, no specific mediators nor occupants of specific social positions will possess as a matter of existing experience sufficient information about the particular perspectives and histories of the particular disputants to be able ef- ficiently to suggest acceptable outcomes. Felstiner, supra note 19, at 79. Yet mediation has been exceedingly important in some business contexts, perhaps because within that context the experience of some does provide sufficient information to allow for the suggestion of acceptable outcomes. No. 4 FRAMEWORKFOR ANALYSIS OF LEGALMOBILIZATION 1025

literature,suffice it to say that the frameworkpresented here argues for recognition that interpersonaland social relationships are important potentialcosts in the mobilizationof the law and that they weigh heavily on the decisionmaker's choices. The impactof this variableextends back to the very definitionof an incidentor situationas constitutinga problem for which some redressis required.Thus, for example,one is more likely not to respond negativelyto, let us say, a neighbor'splanting of a veg- etable gardenthat extendsover the propertyline if they interactsocially, have the same friends, and/or have childrenwho play together than if these interpersonalrelations do not exist. Withoutthem the cost of inter- pretingthe action as an unwarranted,if not unlawful, taking of property would be substantiallyreduced. Like the other independentvariables, social costs play a role at everystage of the decision-makingprocess. Thus, the threat to a relationshipmight allow asserting a claim directly to anotherparty but not to a third party. Or it might allow for the intervention of some third parties but not for direct appeals to the law. Or it might allow for appealsto legal normsbut not allow for actual adjudication, and so on through the sequential steps of the legal mobilization process. Thereis substantialevidence that calculationof the social costs plays a role in legal mobilizationdecisions. A discussion of strategiesto avoid legal malpracticesuits, for example, asserts "It cannot be overempha- sized that a good client relationshipmay not only help in avoidingunmer- itorious claims but may also be the decisive factor which may even per- suade a client not to pursuea valid claim."138That is to say, if the relationship is sufficientlyvaluable (in this as in other situations),fear of its severance will deter legal mobilization. Another example comes from Austin Sarat'sstudy of litigationin a small claimscourt in whichthe pro- spective relationsbetween the parties influencedchoices among alternative techniquesfor handlingdisputes; those without a long relationalhis- tory who did not anticipateany continuationof a relationshipwere (as the model would predict)more likely to use adjudication.139 Ironically,the importanceof relationalcosts in legal mobilizationdecisions may be most clearlyexemplified by data which seem to (but do not actually)support the null hypothesis.Contrary to what the above discussion might suggest, 56 percent of Hunting and Neuwirth'srespondents said people would sue relatives or friends for the same amount as strangers.'40But the explanationgiven for this behaviormakes it the ex-

138. Ronald E. Mallen & Victor Levit, Legal Malpractice 22 (St. Paul, Minn.: West Publishing Co., 1977) (emphasis added). 139. Austin Sarat, Alternatives in Dispute Processing: Litigation in a Small Claims Court, 10 Law & Soc'y Rev. 339, 370 (1976). 140. Hunting & Neuwirth, supra note 6, at 47. 1026 AMERICAN BAR FOUNDATION RESEARCHJOURNAL 1982:989 ception that proves the rule, for respondentsnote that it is the insurance companiesand not the friends or relativeswho pay the claims. A final example of the importanceof the costs of interpersonalrelations to legal mobilizationis the anonymousinitiation of the legal process. Whetherin the criminalor administrativeprocess, the ability of the informantto remainanonymous enables him or her to asserta legal claim without paying a cost in interpersonalrelations. A call to a municipal agency reportingvandalism of public propertyby a neighbor'schild or a call to the fire departmentabout an open hydranton a hot summerday are both examplesof access to law with a diminutionif not the elimination of one of the costs of legal mobilization. The social cost variable covers substantiallymore than interpersonal relationsalone, for at some stage the legal mobilizationprocess becomes public. At one level this is another referenceto the importanceof social norms discussedpreviously, for mobilizationof the law that is visiblebut disapprovedby the social group may result in social costs even when there is no directinvolvement by any other memberof the group. Loss of reputation and even more direct retributionmight follow, and its risk must be calculated. Erving Goffman's distinctions between different forms of visibility are relevant here, for it is clear that while "known- about-ness" and "obtrusiveness"are both aspects of visibilitylikely to elicit audienceresponse, the latter is more likely to result in the imposition of a social cost.4"' Here again initiatingand pursuinga public legal claim has additional and in some cases distinctivesocial consequencesin comparisonwith a more informal pursuit. As Engel and Steele have noted in their study of process and order in the civil justice system, individualswho have filed numerousor frivolous claims or who have litigatedwith their companies may later be denied insurancecoverage or penalized with higher rates. Similarly,those who have made complaints to public agencies may be blacklistedwithin a common area or industryon the basis of knowledge of their earlierhistory. Such knowledgecan be obtainedthrough pooling insuranceinformation, checking the recordsof a governmentcivil rights commission, and the like.'42Thus, the mere initiation of legal proceedings imposes costs by virtue of the wideningof the audienceto the legal mobilizationprocess. iii) Financial costs D D The argumentfor a broad conceptualization of the cost variabledoes not diminishthe well-recognizedrole that finan-

141. Erving Goffman, Stigma: Notes on the Management of Spoiled Identity 49 (Englewood Cliffs, N.J.: Prentice-Hall, 1963). 142. David M. Engel & Eric H. Steele, Civil Cases and Society: Process and Order in the Civil Justice System, 1979 A.B.F. Res. J., 295, 316. No. 4 FRAMEWORKFOR ANALYSIS OF LEGALMOBILIZATION 1027

cial requirementsplay in mobilizingthe law. That role operatesin terms of the costs incurredeither by failing to act or by virtue of the action taken. The initial incidentthat providesthe basis for the individualclaim may be measurablein direct costs. Medicaland auto repairbills emanat- ing from a traffic accident are a case in point. Available data indicate that, not surprisingly,the greaterthe direct costs, the more likely the injured is to take action at all and the more likely to engageprofessional assistance. Hunting and Neuwirth found that "the higher the [respon- dent's] actual expense, ... the higher the actual losses suffered, the more likely he is to make a claim."'43Of those "laid up" less than a week or incurringexpenses of less than $200, 36 percent failed to take any action to redresstheir losses; only 3 percent of those with greater losses (laid up more than a week or incurringmore than $200 expense) neglected to act. Those with greater losses who acted were also much more likely to engage a lawyer than those who incurredlesser costs (86 percent as comparedwith 50 percent). The direct costs of action vary enormously. Self-help is usually costly in monetaryterms only to the extent that the time involvedis taken from time that would otherwisebe devoted to earnings.The wage earnermay thus be more affected than the salariedworker. The costs of avoidance may take the form of higher replacementcosts. For example, avoidance of the local grocer may requirepurchasing goods at a higher price elsewhere, not to mentionthe indirectcosts of travelingfarther to shop. The use of alternativeremedies, dependingon their nature and availability, also involves a cost calculation. Initiationof a formal legal proceedinghas its own distinct costs. Fees are chargedfor use of the public courts, and the time requiredto pursue a case in court even without a lawyer is not insubstantial.In their national study of small claims courts, which were establishedin part to reduce the costs of justice, Ruhnka and Weller found that $76.93 is the averagecost to an unrepresentedplaintiff in a contestedcase if lost wages are taken into account.44 Yet these costs are small compared with the cost of counsel; indeed it is the cost of counsel that makes going to court such a costly enterprise.In the same courts, pursuingsimilar claims, the average representedplaintiff's costs came to $222.63,145 an increase of almost 300 percent. It is interestingto note that lost wages also increase (close to double) when an attorneyis used at trial, presumablybecause of increasedpreparation and court time requiredof the plaintiff.

143. Hunting & Neuwirth, supra note 6, at 10. 144. Ruhnka & Weller, supra note 121, at 85 table 4.4. 145. Id. 1028 AMERICAN BAR FOUNDATION RESEARCHJOURNAL 1982:989

Consistentwith the model presentedhere, the decisionto consult an attorney about a small claim is directlyrelated to the amount of the claim with individualsof low SESjust as likely to hire an attorney as those of high SES.146The same relationshipappears to hold for the defendant as well. Similarly, a study of debtors in default in three American cities finds that "income at best accounts for only a little of the variancein the use of lawyers by debtor-defendant. . . . [T]he likelihood of having a lawyer steadily increaseswith the amount of the debt."'47 The importanceof lawyer cost is not limited to legal mobilizationby those with small claims. Irrespectiveof the natureor size of the claim, the single largestdirect cost incrementin legal mobilizationis a consequence of the decision to employ professionalcounsel. Not only does the cost of a purchasedirectly and significantlyaffect the decision to complain,14 but it also has an impacton the use of counsel more generallyby those at all levels of the socioeconomicstatus hierarchy.For it is the cost of pursuit as comparedwith the value of the remedy,and not the wealth of the actor, that is the determinativefactor. Complaintsabout the high cost of legal servicesare not the exclusive preserveof the low-incomepopulation. In recentyears complaintsabout the cost of lawyers'services have come from the highest echelons of corporate America. The president of the First National Bank of Chicago speakingto an AmericanBar Association meetingcharged that corpora- tions are being "literally blackmailed"into settlementsbecause of the enormouscosts to defend a suit.149Unlike individuals,however, corpora- tions' legal costs are often tied not to specific incidentsbut to an on-going evaluation of business dealings in light of the law (both to protect against mobilization of the law by potential opponents, including the government,and to establishtheir own rights under the law). This continuing scrutinyof legal rights and duties is very costly. "In the last five years," the above-quoted executive continued, "our net income has grown at a compounded annual rate of 8.6% while our legal expenses

146. Id. at 36. 147. David Caplovitz, Consumers in Trouble: A Study of Debtors in Default (New York: Free Press, 1974). The relationship between amount in dispute and action taken does not in itself necessarily negate the claim of the access-to-justice movement or the legal services perspective. For size of debt and income are somewhat correlated. That is to say, persons of low income tend to be involved in transactions of lower cost whether they be consumer purchases, tenant leases, or child support payments. In the Caplovitz study, among debtors who believe that they have a good reason not to pay and who are being sued for amounts in excess of $1,000, nearly half (46 percent) are not represented by counsel. Id. at 223. Consistent with the earlier discussion of rights consciousness, Caplovitz also demonstrates that irrespective of the amount owed, debtors are more likely to seek legal assistance when they believe that they are in the right. Id. at 224. 148. Best & Andreasen, supra note 22, at 718 table 10. 149. Richard L. Thomas, quoted in Dick Griffin, Top Execs Give Verdict on Lawyers, Chicago Daily News, Aug. 10, 1977, at 47. No. 4 FRAMEWORKFOR ANALYSIS OF LEGALMOBILIZATION 1029

have climbed about 25% compoundedannually."150 For businesses,like individuals,also must absorb the monetarycosts associatedwith delay, includingthe lost benefits of uncollectedmoneys and the cost of collect- ing judgments,which may requirea completelynew legal proceedingin- cludingthe entirepanoply of costs inherentin the pursuitof any claim in the public courts. 4. Evidence of the Decision to Act With the many variablesdiscussed affecting both the decision to act and the kind of action to take, it is worth inquiringinto the results of those decisions to the extent that they are available.The scarcityof evidence reflects the complexityand cost of pursuinga researchmethodology appropriateto the task as well as the ease and benefitsof focusingon one kind of claim at a time, therebyrendering the resultsnot easily gener- alizable. However, there are a number of studies that begin to give us some clues as to the likelihoodthat partieswho perceivethemselves to be in need or subject of a wrong will decide to actively pursue an outcome they expect will satisfy the need and/or redressthe wrong. With respondents'perceptions constituting the base-lineinformation in these studies, there is no way to examinethe factors that influencethose perceptions;this is a probleminherent in the researchmethodology and not easily overcome by a simple change in researchdesign (at least not without incurringother difficulties).Furthermore, data dependenton respondents' recollectionsalso suffer from the likelihood that frequency, familiarity, salience, and recency of occurrence will affect recall of events.15 Thus not only is recallof the initialevent affected by these variables, but there is a likely bias toward reporting more proactive responses. That is to say, the greaterthe investmentthat has been made in pursuitof redress,the more salient the activitiesand the more likely the recall. Thus figures reporting active responses as a percentageof perceived grievancesare likely to overstate actual levels of activity. On the other hand, the same analysis dictates that initial events are themselves more likely to be recalled where more active responses have been generated. Whetherthese are self-cancelingbiases cannot be determined,but it is appropriateto acknowledgethe limitationsof extant data to address the questions raised herein.

150. Id. One corporate strategy to decrease legal costs has been to rely more heavily on in-house counsel. "They've become masters of their firms' dockets, practicing a brand of avowedly cost-conscious law," notes one reporter. The Highest Legal Fees, Newsweek, Aug. 24, 1981, at 71. As if echoing the concerns of the access-to-justice critics of the legal system, a committee of corporate general counsel is engaged in an effort with the Center for Public Resources in New York to find cheaper ways to settle disputes. Id. 151. Michael J. Saks & Robert F. Kidd, Human Information Processing and Adjudication: Trial by Heuristics, 15 Law & Soc'y Rev. 123, 137 (1980-81). 1030 AMERICANBAR FOUNDATION RESEARCH JOURNAL 1982:989

As displayedin the model, once the decisionhas been made to respond proactively(that is to say, neitheravoidance nor "lumpingit" is the option of choice) three possibilitiesare open to the actor: seeking advice, self-help(including direct contact with an adversary),or using third-party alternatives.It should be noted that the decision maker may at any time in the legal mobilizationprocess retreat to eitheran avoidanceor a lumping-it strategy,although once a proactivestance has been taken, the opportunity for a pure avoidance or lumping-itresponse may have been passed.'52But if a satisfactory outcome is not achieved, avoidance or lumpingit may be the best option. After all legal and extralegalavenues have been pursued,they may be the only options; before all avenueshave been pursuedthey may be the preferableoptions, given the actual and perceivedcosts of continuingto seek a more acceptableresolution. (The arrowsrepresenting the returnto these less proactiveoptions are, for purposes of clarity, left out of the diagrammedmodel.) Similarly,the choice among the three active responsesis not necessarilyirreversible. In keepingwith the generallysequential nature of the analyticscheme, the arrows among the three proactive responses are unidirectional.In practice, however, one may move freely among the three active options without in any way jeopardizingany other option. For example,it is perfectly plausible-indeed the data provide evidence of the likelihood of this sequence-for self-help, includingcontact with an adversary,and/or pursuitof third-partyalternatives to occur subsequentto and as a direct result of seeking advice. Additionally,while third-partyalternatives gen- erallydo not precededirect contact with an adversary,other self-helpoptions often do. A faulty purchaseprovides an example of the sequence. The first active step taken is often an attemptto fix the problemoneself. Only after that alternativeproves fruitless(or has been rejectedas potentially fruitless) is it usually worth the costs (broadly conceived) of approaching the seller and/or manufacturer.Third-party intervention is typicallysought only after the failureof directcontact to producea satisfactory outcome. An analogous scenario could be describedfor marital difficulties, job discrimination,personal injury, and other events or cir- cumstancesthat might ultimatelygive rise to legal action. At any step, and clearly at more than one, advice of relevant others may continue to be sought. Friends and relativesthat are typically the first source of advice are likely to play a continuingrole. They are, for example, the single most importantsource influencingthe selection of a

152. Ladinsky and Susmilch found that 27 percent of those who made consumer claims in Milwaukee eventually abandoned them by "lumping it." They characterize such respondents as "clumpits." Ladinsky & Susmilch, supra note 21, at 26 fig. C. No. 4 FRAMEWORKFOR ANALYSIS OF LEGALMOBILIZATION 1031

lawyer.'53For particularkinds of cases there are other more substantively relevant information brokers: car mechanicsin the case of automobile damage, doctors in the case of personal injuries, fellow workersin the case of employmentgrievances. The potentialfor movementamong the threeactive options-including the repeatedreturn to seeking advice just mentioned-has not been diagrammed,again for purposes of clarity. Were this movement to be in- cludedin the illustratedscheme it would be representedby double-headed arrows ( ---) between each pair of the three options: seeking advice, self-help (includingcontacting an adversary),and pursuinga third-party alternative.Furthermore, and to anticipatethe next stage in the process, movementtoward seekinglegal assistancemay also not be unidirectional in practice,for the legal advice receivedmay be that the best option is to return to self-help, includingdirect contact of an adversary,to turn to some third-partyalternative, or to forget the matterentirely. This advice may occur before or after an attempt at exercisingthose options, since seeking legal advice may itself be the first line of action taken in some cases. Thus althoughthere is a generalsequential nature, both analytically and in the aggregateempirically, to the steps involved in legal mobilization, there is room for considerablevariation. Before turning to a direct examinationof some of the researchevi- dence of the choices made by decisionmakers, it is worth pausingto clarify the relationshipof legal norms to the process being described.At a more generallevel this is a model of help seeking. Indeedthat is why the medicalliterature is relevant:legal mobilizationis a subcategoryof more broadly conceivedhelp seeking in that it constitutesseeking the benefits of a particularizedresource, the law. As such, each of the three proactiveoptions (seekingadvice, self-help, and third-partyalternatives) may or may not involve the assertion of a legal norm. Without the articulationof a legal norm, whetherimplicit or explicit, the steps describedremain precursors but do not qualify as legal mobilization.Indeed an issue may certainlybe, and often is, satisfactorily resolvedwithout legal mobilization.'54The concernhere is with the active assertionof legal norms by citizensand the developmentof a framework to analyzethat behavior. Again, this is not to argue that an understanding of the mobilizationprocess will by itself explainthe impact of law on a society. Ratherit is to assertthat a substantialproportion of the impact

153. Curran, supra note 2, at 203; Mayhew & Reiss, supra note 12. 154. For some issues legal mobilization may be difficult to avoid. This may be so either because an area (like automobile accident torts) is so law-infused that the population is not able to separate the incident from its potential legal implications or because the goal being sought requires the im- primatur of the state in the form of a judicial disposition, as in probate or divorce cases. 1032 AMERICANBAR FOUNDATION RESEARCH JOURNAL 1982:989 of the law that is measurableby compliant behavior is dependentupon the assertionof norms by those who anticipatebenefiting from them. It will be helpful to keep these distinctionsin mind as we review available evidence of the steps taken in the legal mobilizationprocess. a) Seeking advice DD Talking with others about one's perceived problemmay be a predictorof subsequentaction towardredress. In fact, talking with others might be considered a first step in the action sequence. The mechanismby which this occursis analogousto Eliot Fried- son's lay referralsystem used in seeking and finding medical assistance. Beginningwith the nuclear family and in the course of normal personal interactions,advice-seeking often occurswithout deliberateintent."' The availabledata do not indicatethe specific content of these conversations, informationthat would be necessaryto determinethe precise role they play. As illustratedin the model, wherethey are denoted as "seekingadvice," they are meant to constitute a first-stageaction. In addition to conscious advice seeking, there are conversationsthat generate new perceptionsof the same incident-they are a part of the process by which social norms affect perceptions.A casual referenceto the failureof a purchaseto live up to expectationsmay generatea variety of responses, from a simple expression of sympathy ("Gee, that's a shame!"), to a somewhatmore activistresponse ("What are you going to do about it?"), to an even more activistresponse ("Aren't you going to returnit?"), to a rights-consciousresponse ("Well, the store has an obligation to replace it"). A response even more likely to generate action might include informationabout how to go about making a complaint, what the law says, if anything, and who ought to be counsel if legal assistance is deemed appropriate. In support of the role of conversationsin legal mobilization,Hunting and Neuwirthdiscovered a substantialincrease in the likelihoodof action among accident victims if they spoke to anyone at all.'56In the case of personalinjuries, of course, legal rights are generallyperceived to be involved and insurancebroadly known to play a role-that is, there exists a highly institutionalizedmechanism for redressof this type of grievance. Consequentlyeven among those who spoke to no one, 71 percent took some action, with 62 percentof those contactinga lawyer. But speaking with others apparentlyincreases the likelihood of action-among those who spoke only to family and/or friends, 88 percenttook action, with 81

155. Eliot Freidson, Client Control and Medical Practice, 65 Am. J. Soc. 374 (1960). 156. Hunting & Neuwirth, supra note 6. No. 4 FRAMEWORKFOR ANALYSIS OF LEGALMOBILIZATION 1033

percentof them seeing a lawyer.'57Every one of the accidentvictims who sought the advice of what the researchersdenote as professionalsin the injury compensationfield-what the model would include as a first step in the action sequence-took further action, with 86 percent seeing a lawyer. 58 An analysisof the interviewsindicated that the idea to make a claim is often an idea that has been suggestedto the injured.'59The importanceof social networks becomes apparentin this context. Who you know and what and who they know will determinethe kind of supportyou receive for taking action. In Hunting and Neuwirth'sstudy more than half (52 percent)of the injuredwho used lawyersknew them before the accident. The others most often got names of lawyersfrom family and friends.'60 These findingsare consistentwith Curran'snational survey of experience with 29 different legal issues. Eighty-five percent of the lawyer users either knew their lawyers personally (33 percent) or had them recom- mendedto them (52 percent).161For those who used a resourcein finding a lawyer,23 percentwere assistedby a relativeand 39 percentby a friend, neighbor, coworker, or business acquaintance.62 A deeperexamination of the role of personalconversations in the decision to act has yet to be done.'63 For now we must rest content to acknowledgethe apparentlycentral role such conversationsplay, without much of an understandingof the actual dynamics. b) Self-help C1C1 While conceptuallya first stage in the mobilization process, self-helpmay be beyond the power of the averageperson. As has been noted, for example, the complexity and sophisticationof modern technology limits self-help as a potential avenue for righting many

157. A comparisonof Huntingand Neuwirth'sfindings, based on a study of accidentvictims in New York,with those of a studyof accidentvictims (injuries causing more than two weeks'interrup- tion in normalactivities) in the United Kingdomillustrates differences in legal mobilizationacross nations.While New Yorkersmay be more rightsconscious and thereforemore likelyto makeclaims than other Americans(indeed Zeisel et al., supra note 46, esp. ch. 20, suggestas much), the dif- ferencein the findingsin the two countriesis still substantial.Of the 1,711 accidentcases examined in the UnitedKingdom, three-quarters never considered the questionof compensationat all, and only about one-half of those sought legal advice (Genn, supra note 6). 158. Hunting& Neuwirth,supra note 6, at 66. 159. Id. at 66. 160. Id. at 67. 161. Curran,supra note 2, at 201 table 5.5. 162. Id. at 203 table 5.7. 163. Both Curran and Mayhew and Reiss asked questions relevant to addressing this issue. Cur- ran asked the very general question "What would you do about" each of six hypotheticals,in- cludinga probe of what resourceswould be used. Curran,supra note 2, at 281-84 app. 1. Mayhew and Reissasked about talking with friends,neighbors, associates, public officials, and/or contacting organizationsabout problemsexperienced. See variables101-60 in 1967Detroit Area Study, supra note 12 (Codebookof Variables).Neither study has as yet yieldedany publishedanalyses of these data. 1034 AMERICANBAR FOUNDATION RESEARCH JOURNAL 1982:989 wrongs.'64 Included within self-help is "directly contacting an adversary" to elicit redress. The perspective taken here is that while disputes are among the bases for mobilizing the law, they are not exhaustive of the incidents and/or circumstances that give rise to legal mobilization, despite the adversarial format of formal legal structures. Thus for some matters direct contact is not an available self-help option. However, the available evidence relevant to an inquiry into legal mobilization does focus on disputes that involve a direct adversary. Evidence on self-help confirms the sequential nature of the legal mobilization process. John Hannigan's study of a newspaper action line, for example, reveals that more than 90 percent of those who contacted the newspaper for assistance had first taken their complaints to the perceived source of their problem and had entered into two-party negotiations.'65 A study of arbitration of disputes from the textile industry similarly indicates that 92 percent of those who brought cases to the American Arbi- tration Association had first contacted the other party to try to reach an accommodation.166 The pattern of attempts at two-party negotiation before seeking third- party alternatives repeats itself for cases that are filed in court. In a study of small claims, for example, Sarat finds that 80 percent of the plaintiffs made some attempt at redress before filing a lawsuit.'67 In the small claims pro se court studied by Eovaldi and Meyers, 86 percent of the litigants report attempts to settle prior to filing a legal action.'68 While generally supporting the ordered sequence of the model, the 20 percent and 14 percent figures (those who filed suit without first attempting any other action) are consistent with the fluidity of the ordering of actual behavior that has been mentioned before-each step is a possible but not requisite stage in the legal mobilization process. Using a national sample as opposed to the self-selected claimants included in the previously mentioned studies, Best and Andreasen discovered much the same process. Of the more than 8,000 respondents who perceived problems with purchases, just under 40 percent took some ac-

164. David Sanford, Nothing Works Anymore, 162 New Republic, Feb. 14, 1970, at 21. 165. John A. Hannigan, The Newspaper Ombudsman and Consumer Complaints: An Empirical Assessment, 11 Law & Soc'y Rev. 679, 688 (1977). 166. Robert L. Bonn, The Predictability of Nonlegalistic Adjudication, Law & Soc'y Rev. 563, 573 (1972). 167. Consistent with the importance of social costs to legal mobilization, Sarat found that the longer the prior relationship between the adversaries the more likely they were to persist in attempting to settle the case before going to trial. Sarat, supra note 139, at 359 table 9. 168. Eovaldi & Meyers, supra note 116, at 980. No. 4 FRAMEWORKFOR ANALYSIS OF LEGALMOBILIZATION 1035 tion.169 The overwhelming proportion (77 percent) of those who acted complained directly to the seller, only 98 complaints were made to third parties (including multiple mentions), and only 16 saw lawyers or went to court.170 Ladinsky and Susmilch similarly report that virtually all Mil- waukee consumers who brought claims had first taken them directly to providers. 17 Employing a very different data base, Miller and Sarat'72report high levels of pursuing grievances. As part of the Civil Litigation Research Project, they restricted reported grievances (upon which claiming percen- tages were calculated) to monetary disputes over $1,000 and serious non- monetary disputes. Still, not unexpectedly, with the exception of discrimination, the most likely response to a perceived grievance is direct contact of the source of the problem (from 80 to 95 percent)."7 Ross and Little- field's study of a major television and appliance distributor in Denver confirms consumers' preference (again 80 percent) for direct negotiations with sellers.'74 Though slightly higher, this figure is not dissimilar to the findings of a national survey that found that more than 70 percent of those reporting problems first sought redress from the seller or service provider.175 Except for the potential cost to interpersonal and social relationships that might be hazarded by direct confrontation, self-help is the most obvious and generally the least costly means of seeking redress. Best and Andreasen report a 56.5 percent satisfaction rate with all complaints, with those regarding purchases more likely (65.8 percent) to be perceived as satisfactory than are those regarding services (43.9 percent).176Al- though the figures are not broken down for two-party negotiation versus third-party intervention, with the very small numbers (98 out of 3,227 complaints) seeking third-party assistance, the satisfaction figures basi- cally reflect the results of direct complaints. Similarly, only 18 percent of

169. Best& Andreasen,supra note 22, at 711 table 5. In interpretingthis rate of activityit should be rememberedthat manyof the perceivedproblems were articulated by respondentsonly after sub- stantialprobing. Under such conditions,it would be expectedthat actionrates as a percentageof all problemsmentioned, including those mentionedonly afterprobes by an interviewer,would be lower than if only initiallyrecalled problems were calculated. For a critiqueof the methodologyemployed in that study see Ross & Littlefield,supra note 22. 170. Best & Andreasen,supra note 22, at 714 table 7. 171. Ladinsky& Susmilch,supra note 21. 172. Austin Sarat& RichardE. Miller, Grievances,Claims, and Disputes:Assessing the Adver- sary Culture, 15 Law & Soc'y Rev. 525 (1980-81). 173. Id. at 540. 174. Ross & Littlefield,supra note 22, at 205. 175. Donald King & KathleenA. McEvoy, for Departmentof Health, Education,and Welfare, Office of ConsumerAffairs, A National Survey of the Complaint-handlingProcedures Used by Consumers(Rockville, Md.: King Research,Inc.,1976). 176. Best & Andreasen,supra note 22, at 726 table 19. 1036 AMERICANBAR FOUNDATION RESEARCH JOURNAL 1982:989

Ross and Littlefield's"' complainantsexpressed dissatisfaction with their treatmentby the seller. Still not too much ought to be read into the ap- parent consistencyin the findings. For one thing, Best and Andreasen'sfindings indicate that thereis substantial variabilityin both complaintand satisfactionrates accordingto the kind and frequencyof purchase.This is importantnot only for inter- preting these data but as a caution against overgeneralizingfrom the other studies cited, most but not all of which have focused on small claimsby consumers.With the model intendedto contributeto an understandingof mobilizationof the law more generally,including even criminal complaints, substantiallybroader research is needed to actually test the model.78 c) Third-partyalternatives D D Despitethe documentedpreference for directnegotiations when thereis an identifiableadversary, most efforts at reform have been directedat the developmentof third-partyalternatives. In part this reflectsthe inabilityof those not involvedin an issue to assist without interveningin the negotiatingprocess. Furthermore,efforts to develop negotiatingskills absent some immediatesituation in which they would be useful are not likely to be very popular.Another and even more persuasive explanation for the reform emphasis on third-partyalter- nativeshas been the sourceof the effort. One way or anotherthe pressure for and the development of third-party alternatives have largely emanated from attempts to improve the formal legal system. While in some cases only slight structuralchanges in the formal mechanismshave emerged, there is a long history of creatingnew structuresto deal with situationsthat the state legal system had been expectedto handle but for which it had proved unsatisfactory. The basic argumentsfor the creation of third-partyalternatives have enduredsubstantially unchanged over the years. The centraltheme, with some variations,has remainedthe accessibilityof the legal system to the averageperson. It is not a new revelationthat "equal justice under the law" has only limited meaningwhere both the costs and the complexity of the legal system make access prohibitiveto substantialportions of the population. At least as early as the beginningof this century, concerns over dissatisfactionwith the legal system were well established. In his now famous 1906address, Roscoe Pound articulatedwhat he called "the

177. Ross & Littlefield, supra note 22, at 206. 178. Where the written law offers the option, the victim may employ the criminal process with less cost than required for civil litigation but with little direct benefit beyond revenge. Exercising that option, of course, does not preclude seeking financial redress through alternative means. In some jurisdictions, restitution is being incorporated into criminal proceedings. For a review of these developments see Harland, supra note 44. No. 4 FRAMEWORKFOR ANALYSIS OF LEGALMOBILIZATION 1037 causes of populardissatisfaction with the administrationof justice."179A similartheme can be tracedmuch earlier.In his historicalexamination of small claims courts, Eric Steele finds that the "concept of simple, informal, lawyerlesscourts where ordinarypeople can settle their affairs ami- cably without expense, delay, technicality,or contentiousnesshas fasci- nated Americanssince colonial times."'80 These same themes have been continuouslyarticulated, with additional emphasisupon the overburdeningof the capacityof the courts. In recent years concern over the excessiveworkload of the courts has been regis- tered from high places. The Chief Justice of the United States, for one, has been particularlyvocal on this issue and has suggestedreforms ranging from legal changes in the jurisdiction of the courts to alternative mechanismsfor the settlementof minor disputes.'8'In termsof suggested reforms, there has more recentlybeen a joint effort by those most concernedabout overcrowdedcourts and those most concernedabout the inability of a costly, complicated,and blame-conferringadjudicative process to resolve most disputes. The focus of joint efforts of those representingthese somewhatdiffer- ent perspectiveshas been the developmentof extralegalalternatives to the formal courts; these are intended to be more accessibleas well as more genuinelyhelpful by virtue of less formality, lower cost, and the resolution of problemswithout the necessityof determiningright or wrong in light of some legal standard.One reflectionof the efforts in this area was American Bar Association sponsorshipof the National Conference on Disputes Resolutionin 1977. The ABAhas been actively involved in promoting alternativesto the publiccourts ever since, subsequentlyestablish- ing a SpecialCommittee on Resolutionof MinorDisputes and publishing a Dispute Resolution Quarterly. A recent issue of the American Bar Association Journal reiteratedthat continuing commitment.'82Similar activities have also proceeded in other quarters, with such strange bedfellows as the National Chamberof Commerceand Nader's Raiders unitingto supportthe 1980Dispute ResolutionAct and nonjudicialthird- party alternatives.'83The federal governmenthas financed a number of Neighborhood Justice Centers stressing the same goals: mediation in

179. Roscoe Pound, The Causes of Popular Dissatisfaction with the Administration of Justice, 29 A.B.A. Rep. 395 (1906). 180. Steele, supra note 1, at 295. 181. According to the Chief Justice, "We've got to look at all of the things which are now being done in the courts and try to find out whether some of them can't be done somewhere else." How to Break Logjams in Courts: Exclusive Interview with Chief Justice Burger, U.S. News & World Rep., Dec. 19, 1977, at 21. 182. Justin A. Stanley, Minor Dispute Resolution, 68 A.B.A.J. 62 (1982). 183. For a discussion of the act and its history see David J. Saari, The 1980 Dispute Resolution Act, 25 Am. Behav. Sci. 107 (1981). 1038 AMERICANBAR FOUNDATION RESEARCH JOURNAL 1982:989 place of findings of fault and guilt, a reductionin court caseloads, and lasting resolutions of difficulties.184 Third-partyalternatives have thus tended to be eitherextensions of the legal system or separatelyconstituted dispute resolutionmechanisms, re- flecting their emergenceout of two quite differentconcerns: the overbur- dening of state legal structuresand the failureto deal effectivelywith disputes.'85However, whateverthe focus, noncourt third-partyalternatives have been typifiedby the absenceof lawyers,with their exclusionthought to reduce cost, simplify proceedings,and minimizedelay. As should be clear from both the diagrammaticrepresentation of the model and the discussionthus far, I am using third-partyalternatives to refer to extralegalmechanisms. This is necessaryfor the purpose of dis- tinguishingthe process of legal mobilizationfrom any particularstruc- tural context. While technicallylawyers and courts (and other state agencies) are third-partyalternatives, for the purposes of the analysis they have been kept separate, in part because the interestis in clarifyingthe steps and screeningsthat precedetheir use and in part becauseonce those instrumentalitiesare employed,the law has by definitionbeen mobilized. That is to say, one can neither employ nor threatento employ lawyers and/or state legal structureswithout, at least by implication,mobilizing the law. Inherentin the act of seeking the assistanceof lawyersor legal structuresis an effort to invoke and seek the benefits of legality. There are, of course, many third-partyalternatives available that do not deal directly in legal issues and/or avoid the use of legal norms in their efforts to assist complainingparties. Thus as with the seekingof advice and self-help mechanisms,third-party alternatives may be, but are not necessarily,involved in the mobilizationof law. In fact, in general, third-partyalternatives may simultaneouslylimit mobilizationof the law by contributing to the settlement of an issue without invoking legal

184. Joan Mullen& DanielMcGillis (for UnitedStates, Department of Justice,Law Enforcement AssistanceAdministration, National Institute of Law Enforcementand CriminalJustice, Office of Development,Testing, and Dissemination),Neighborhood Justice Centers: An Analysisof Potential Models 196 (Washington,D.C.: GovernmentPrinting Office, 1977). There may be some irony in creatingstill more institutionswhen the emergenceof othersmay haveencouraged more claims. Cer- tainly the numberof claimsto alternativeinstitutions has been on the increase.The caseloadof the AmericanArbitration Association provides a case in point. Its 1977caseload of 47,066 is more than twicewhat it was in 1971.Jerry Flint, An Answerto CrowdedCourts, N.Y. Times,May 29, 1978,at D1, col. 3. 185. Whetherthird-party alternatives have been effective or how effective they have been in achievingthese disparate goals is largelyunknown. According to one analystwho coauthoreda Jus- tice Departmentreport of the NeighborhoodJustice Centers in 1980, the hope that they would re- lieve overburdenedcourts has not been fulfilled. "Instead,"he observed,"the advantageof mediation has been for people to be more satisfiedwith the qualityof justice, 'more chanceto get their say-so."' MarshallIngwerson, A NeighborlyWay to Settle Disputes,Christian Sci. Monitor,Aug. 6, 1981, at B6. No. 4 FRAMEWORKFOR ANALYSIS OF LEGALMOBILIZATION 1039

norms and encouragelegal mobilizationby providingawareness of and informationnecessary to make a legal claim.'86 There is great range and variationamong third-partyalternatives, and their use seems to be increasing.Before reviewingsome of these alternatives, it should also be noted that althoughthe process of legal mobilization as describedthus far has been essentiallysequential, there is more variabilityin the order of steps taken once a third-partyalternative is involved. Thirdparties may encouragea returnto self-helpoptions or may direct the party to seek the assistanceof legal counsel. In addition, given the plethora of third-partyalternatives, it should not be surprisingthat available evidence indicates that there is substantialmovement among different alternativemechanisms.'87 Hannigan,for example,found that more than 25 percentof those who contacted the newspaperaction line for assistancehad previouslycon- tacted at least one other third party about the same problem.'88Alterna- tively, and additionally,legal counsel may suggest contacting(or recon- tacting) third-partyalternatives. In Hannigan's sample, 30 percent of those who had sought assistanceelsewhere before writingto a newspaper action line had first invoked the public law by virtue of seeing lawyers, contactinggovernment agencies, and/or filing complaintsin small claims courts.'89While the very same institutionsmight not be appropriatefor different kinds of problems-small claims courts, for example, are de- limited by size of claim, and in some jurisdictionsby status of plaintiff-the point is that apparentlyonce one has decidedto seek the intervention of a third party, one has passed a thresholdand may continueto shop among alternativesuntil eitherachieving satisfaction or determining that the goal is not worth any further effort. Although the fluidity of movement among alternativeshas been documented to only a limited degree, a reviewof a numberof studies indicatesthat "such variablesas the formality, official status, or coercivenessof a dispute institutionare

186. This combinationof roles in being illuminatedby a descriptionof some of the secondary broker organizations and dispute-processingforums in Milwaukee. Jack Ladinsky, Stewart Macaulay,& Jill Anderson,The MilwaukeeDispute Mapping Project: A PreliminaryReport (Dis- putes ProcessingResearch Program Working Paper 1979-3)(Madison: University of WisconsinLaw School, 1979). 187. Hannigan,supra note 165;Best & Andreasen,supra note 22. For a laundrylist reflectingthe variabilityof alternativesavailable both here and abroad,see New Approachesto ConflictResolu- tion (New York: Ford Foundation, 1978). 188. Hannigan,supra note 165, at 688. As will becomeclear, Hannigan's definition of third-party alternativesincludes lawyers and legal structures.The figurethus somewhatoverestimates fluidity in the use of third-partyalternatives as definedherein; it does of coursecontinue to affirmthe general fluidityin the processonce the decisionto seek outside assistancehas occurred. 189. Id. at 689 table 4. 1040 AMERICANBAR FOUNDATION RESEARCH JOURNAL 1982:989

not relatedin any simple way to the sequencein which remedyagents are mobilized."'90 Indeed the relationshipbetween third-party alternatives and state legal structuresis not alwaysas clear as may appear. In additionto the continuing connectionbetween courts and the third-partyalternatives to which they refer cases (leavingopen the option and possibly the requirementof returningto the court if no satisfactoryresolution is achieved),there may be a less formalized, but no less real, relationshipbetween courts and other third-partyalternatives. The growth of arbitrationin commercial cases, for example, has been accompaniedby judicial support for decisions reachedin that context. Judicialrecognition of arbitrationhas developed to the point wherecourts enforce arbitraldecisions and are often reluctantto grantjudicial review. According to one commentatorthis has placed the courts in the paradoxical position of supporting arbitral awardsthat may not necessarilytake into account either legal precedents or equity.'9' The precise relationshipbetween third-partyalternatives and the state legal system may be as variableas the nature of those third parties. The varietyof availableoptions is, in fact, substantial,ranging from small issue-specific local groups to broad-based formalized mechanisms.'92 Some, like the ombudsman, were imported from other countries and originallyemployed for the specific purpose of interveningwith government agencieson behalf of citizens. On the basis of his study of ombudsmen and other citizen protectorsand their processingof complaints(and keeping a check on the branchesof government)in nine countries, Gell- horn has arguedfor the establishmentof similarinstitutions in this country. He is persuadedthat such an institutionwould do much to alleviate administrativedifficulties.193 While not adopted at the governmental level, ombudsmen-typemechanisms have become widespreadwithin private organizations-many universities, for instance, have student om- budsmento process student complaints.94 There are long-establishedin-

190. Steele, supra note 110, at 671. 191. Robert L. Bonn, Arbitration: An Alternative System for Handling Contract Related Dis- putes, 17 Ad. Sci. Q. 254 (1972). 192. For a survey of diversion alternatives in civil cases, including coercive and noncoercive forms, see Earl Johnson, Jr., Valerie Kantor, & Elizabeth Schwartz, Outside the Courts: A Survey of Diversion Alternatives in Civil Cases (Denver, Colo.: National Center for State Courts, 1977). For a discussion of functionally similar institutions in other countries, see Mauro Cappelletti & Julie Saulnier, Access to Justice: Beyond the Traditional Adversary System, in Theodore J. Fetter, ed., State Courts: A Blueprint for the Future (Williamsburg, Va.: National Center for State Courts, 1978). 193. See two books by Walter Gellhorn, Ombudsmen and Others: Citizens' Protectors in Nine Countries (Cambridge: Harvard University Press, 1966) and When Americans Complain (Cam- bridge: Harvard University Press, 1966). 194. For a discussion of the relevance of the ombudsman to a school setting see Paul R. Verkuil, The Ombudsman and the Limits of the Adversary System, 75 Colum. L. Rev. 845 (1975). No. 4 FRAMEWORKFOR ANALYSIS OF LEGALMOBILIZATION 1041 stitutions, such as Better Business Bureaus,and more recent inventions, such as media hotlines.'1 There are generalizedinstitutions, such as the Citizen Complaint Bureaus in Great Britain, and those that are highly specialized,such as trade associationsand the many consumerorganiza- tions that have proliferatedin recent years.96 Although there is no systematic evidence of the extent of their use, third-partyalternatives are sometimesused despitetheir lack of eithergeneral jurisdiction or relevant specializedexpertise. A case in point was the involvementof a religious court in the settlementof a landlord-tenantdispute in Boston.'97While not necessarilytypical, it is exemplaryof many of the perceivedbenefits that despite clearly applicablepublic law move disputantsto invite the participationof a nonstate third-partyalternative. As noted earlier in the general discussion of third-partyalternatives, there is enormousvariety among these institutionsalong a numberof di- mensions, one of which is the level of intrusionby and use of the public law. Indeed the variabilityof institutionshelps explain the limited, but clear, evidenceof movementamong variousalternatives to achievegoals. In all cases, however,they are initiatedin expectationof beneficialresults in each individualcase, and most particularlyin the aggregate. Createdand touted as the answerto many of the acknowledgedills of public adjudication,it is worth considering,even in light of the paucity of evidence, just what the results of third-partyalternatives have been. With disparatesupporting groups interestedin somewhat different results, the appropriatestandard against which to measuresuccess is not completely clear and certainly not always the same. Based on limited available evidence the results of third-partyalternatives appear mixed. Arbitration,for example,which is often endorsedbecause of its capacity for mediating settlements, is not necessarilyless adjudicativethan the courts. Even when, as is generallythe case, arbitrationis nonbindingand therebyanalytically distinguishable from adjudication,it is an adversarial process and perceivedas such by the arbitrators.'9 NeighborhoodJustice Centers, financed by grants from the Law En-

195. Accordingto Hannigan,supra note 165, at 681, the hotline idea originatedin 1961. 196. An indicationof the latteris the publicationof what is describedas an action-orienteddirec- tory listingmore than 1,700agencies and organizationsthat consumerscan contactfor help. Jeffrey Feinman,The PurplePages (New York: Dutton PublishingCo., HawthornBooks, 1979). 197. The case was a classiclandlord-tenant dispute with recourseto city authoritiespeceived as involving too much "red tape," and court proceedingsas too slow and too costly for the tenants' group. For a discussionof the case see HarveyJ. Kirsch,Conflict Resolution and the LegalCulture: A Studyof the RabbinicalCourt, 9 OsgoodeHall L.J. 335 (1971);S.E.T.C. v. Mindick,Wall St. J., Sept. 9, 1968, at 1, col. 4. 198. Soia Mentschikoff,The Significanceof Arbitration-A PreliminaryInquiry, 17 Law& Con- temp. Probs. 698 (1952);Soia Mentschikoff& ErnestA. Haggard,Decision Making and Decision Consensusin CommercialArbitration, in Tapp & Levine,supra note 75. 1042 AMERICANBAR FOUNDATION RESEARCH JOURNAL 1982:989

forcementAssistance Administration, were intended to both lessenthe caseload of the courtsand providea morehospitable and convenientforum for the resolutionof disputes.One center,the Venice-MarVista Neighborhood Justice Center, reportslogging 3,251 contacts in a 12-monthperiod. Of these, 562 cases wereactually processed, 182 going to mediation.Sixty-five percent(119) of those resultedin a writtenagreement between the parties. Addingthose to the 79 casesresolved prior to hearingmeans that 35 percent of the casesprocessed were resolved.'99 However, without information as to the natureand qualityof the complaintsand/or a matchedor even similar sampleof casesthat proceededwithout the assistanceof the Neighborhood Justice Center being sought, no reliableevaluation of its success can be made.200 If the standardof evaluationis limitationof the burdenon the courts, availabledata are not terriblypersuasive of a substantialimpact by alternative programs.The Dade County Florida Citizen Dispute Settlement Programclaims success based on the processingof 6,300 cases after two years of operation,with only 2 percentrequiring referral to the state's attorney for prosecution. But an evaluation of the center concludes that many of the cases using the servicesoffered would not have appearedin the formaljudicial systemotherwise; in part this is explainedby domestic violence and child support controversiesaccounting for more than 46 percentof the caseload.20'This is not to discreditthese disputesettlement institutions, for the programmay assuredlybe justified on the basis of the resolution of conflicts that might otherwisehave escalated, thereby resultingin greatersocial costs than that investedin sustainingthese centers. However,that hypothesis,like a numberof others about third-party alternatives,is an empiricalquestion to which a researcheffort could be appropriatelyaddressed. One effort at systematicevaluation of an extrajudicialdispute resolution programwas conductedby the Institutefor Civil Justiceof the Rand Corporation. In the face of an upsurge in civil filings that more than doubled California'spending caseload, the legislatureinstituted manda- tory arbitrationin civil lawsuits. As measuredby the intent to remedy court congestion, the impact of the programhas been limited. In 1979 about one-fifth of pendingcivil suits in the state's 13 largestcourts were divertedto arbitrationwith an estimatedsavings of only 10 percentof all

199. Los Angeles Neighborhood Justice Center Proves to Be a Viable Alternative to Court, 8 Law Enforcement Assistance Ad. Newsletter, Aug. 1979, at 7. 200. For a review of these programs see Roman Tomasic & Malcolm M. Feeley, eds., Neighbor- hood Justice: Assessment of an Emerging Idea (New York: Longman, 1982). 201. Luis Salas & Ronald Schneider, Evaluating the Dade County Citizen Dispute Settlement Pro- gram, 63 Judicature 174 (1979). No. 4 FRAMEWORKFOR ANALYSIS OF LEGALMOBILIZATION 1043

trials and 5 percent of judge time.202In addition to the more modest than expected diversionof cases, the nonbindingcharacter of the arbitration leaves open the opportunityto demand trial de novo. Like any mechanism, this one is subject to strategicmanipulation. The evaluationof the first year of judicial arbitrationin Californiaconcludes that the rate of appeal of arbitrationawards reflects legal maneuveringfor more favorable settlementsrather than dissatisfactionwith judgments.203 The arguments promoting third-party alternatives have remained rather constant, and support for them has been increasing.Yet the intended results, at least to the extent examined, have been somewhat limited; at the same time unanticipatedconsequences have emerged.24 The results reported are sparse and inconclusive and demonstratethe need for further systematicevaluation. In particular,available evidence tends to be limited to selected problem areas, with generalizabilityun- known. Since problemsthemselves differ in both the availabilityof alternative remediesand the extent to which they are known and regularized, an analysisof third-partyalternatives requires a broad sample of institutions if their role in legal mobilizationis to be understood. C. The Decision to Seek Legal Services The decisionto seek legal servicesis inextricablybound up with the assertion of legal norms. Each of the other decision points and alternative options discussedthus far may or may not includeinvoking legal norms; that is to say, the threshold of legal mobilizationmay or may not have been crossed. But while legal mobilization surely occurs (perhapseven most often occurs) without contacting counsel, it is a contradictionin terms to seek legal assistancewithout assertinga legal norm, even if only by implication.That is preciselywhy, for example, a letter writtenon a lawyer's stationerywithout referenceto any legal rules may inspire responses not otherwiseforthcoming. It is why many have personallyasked a lawyer-friendto write such a letter in their behalf. The messageis loud and clear: one believes that a legal right has been violated and bears redress. Further,since the adversaryis not awarethat one may not have in- curredany financialexpense, an additionalmessage about willingnessto bear the costs of legal mobilizationis also conveyed.205

202. Deborah R. Hensler, Albert J. Lipson, & Elizabeth S. Rolph, Judicial Arbitration in Califor- nia: The First Year (R-2733-ICJ) (Santa Monica, Cal.: Institute for Civil Justice, Rand, 1981). 203. Id. 204. For an assessment of one area of growth in alternative third-party mechanisms see Tomasic & Feeley, supra note 200. 205. This example also demonstrates a disadvantage borne by those who do not interact socially with lawyers, thus introducing a class bias in the legal mobilization process. For those who do not have such personal contacts, the cost calculus to have such a letter written on one's behalf is substantially different. 1044 AMERICAN BAR FOUNDATION RESEARCHJOURNAL 1982:989

The relationshipbetween legal norms and alternativemechanisms of mobilizationmay be seen in a typology of the combinationsdiscussed so far and of those yet to be considered.Active responsesto possible legal problemshave been categorizedas self-help (includingcontacting an adversary), third-party(nonlawyer) alternatives, and legal services. The means employed in an active response have first been divided into legal and nonlegal means (as determinedby the involvementof legal norms, whether implicit or explicit); the legal category has been further subdi- vided into court (or governmentagency) and noncourtoptions.206 Table 1 illustrates the possible combinations of these action alternatives and means/contexts.

TABLE 1 Legal Activity Typology Active Response Means Seek Third-Party Seek Legal Employed Self-Help Alternative Assistance Nonlegal Self-help, Third-party, nonlegal nonlegal Legal Self-help, Third-party legal, Lawyer, non- noncourt legal, but but noncourt court noncourt Court Self-help Third-party court Lawyer court court

It becomes immediatelyobvious that there is an asymmetryintroduced by one missing cell in table 1. The lawyer/nonlegal combination that would belong containsthe inherentcontradiction mentioned before. That is to say, while lawyers can surely employ nonlegalisticinstrumentali- ties,207from the perspectiveof this analysiswhere the focus of interestis legal mobilization, the involvement of a lawyer (or even the threat of such involvement)itself constituteslegal mobilization. With involving a legal professionala means of invoking a legal norm, a lawyer/nonlegal category becomes a logical impossibility. Looking furtherat table 1, we can make some statementsabout the im-

206. The legal/nonlegal distinction shown is not to be taken as an endorsement of that dichotomization as a particularly valuable one in understanding norm systems and the interrelationships among them. Indeed I generally endorse the relevance to American society of anthropologist Leo- pold Pospisil's concept of multiple legal levels. Leopold Pospisil, Legal Levels and the Multiplicity of Legal Systems in Human Societies, 11 J. Conflict Resolution 3 (1967). However, for purposes of this inquiry into the mobilization of the law of the state the legal/nonlegal distinction is analytically useful. 207. My own research has shown just how central nonlegalistic skills are to the practice of law. See Frances Kahn Zemans & Victor G. Rosenblum, Preparation for the Practice of Law-The Views of the Practicing Bar, 1980 A.B.F. Res. J. 1. No. 4 FRAMEWORKFOR ANALYSIS OF LEGALMOBILIZATION 1045 plications of moving along the two axes. As noted previously, the sequential ordering is far from unitary, with much more fluidity in the process than can be displayed in a two-dimensional space. However, available evidence indicates a general flow of cases down the vertical axis and from left to right on the horizontal axis, with stages along these axes involving a diminished number of cases and increased costs.208The greatest number of cases thus falls into the self-help/nonlegal category and the least into the lawyer/court category. Some cases are screened out at each stage in the decision-making process because of satisfactory settlements or decisions that further costs are not warranted by potential benefits. The role of legal advice in this process is particularly important. With professional counsel often essential to the effective use of formal legal mechanisms, lawyers are critical gatekeepers to the citizens' entry into the state legal system. The real availability of this government resource to the general population is thus often determined by the willingness of lawyers to represent them. 1. Lawyers as Gatekeepers In the governmental system as a whole, gatekeepers control the admission of citizen demands, regulating both the volume and the variety.209 This operates through their participation in the conversion of social wants into actual demands and in the regulation of their flow.210 In modern society this role is played by interest groups, political parties, the media, and the like.2" In the legal system it is lawyers who play this central role of converting wants to demands and generalized demands into legal ones. Gatekeeper control increases to the degree its role is specialized. As Easton has noted, "if the conversion of wants falls into relatively few and specialized hands, the opportunities for keeping the input of demands within critical limits increases enormously."212 The legal profession provides a classic case of this situation. With highly structured educational and licensing requirements, and overwhelming dominance in the

208. The perceived need of legal representation for effective participation in court makes the self- help/court and third-party/court options relatively rare. They are also most likely to occur in particular contexts and involve a more limited number of issues. The growth of pro se adjudication where special mechanisms and assistance are provided for litigants to proceed on their own (sometimes pro- hibiting the very presence of professional counsel) probably accounts for most of the activity in these two cells. 209. David Easton, A Framework for Political Analysis (Englewood Cliffs, N.J.: Prentice-Hall, 1965). 210. Easton, supra note 129. 211. Easton, supra note 209, at 122. 212. Easton, supra note 129, at 90. 1046 AMERICANBAR FOUNDATION RESEARCH JOURNAL 1982:989 public courts, lawyers provide an archetypal example of the gatekeeper, controlling both the rate and the character of litigation.21 The classic image of the lawyer-client relationship pictures the client approaching the lawyer for assistance, inquiring into the legal validity of the claim and the lawyer's willingness to assist by doing whatever is within legal bounds to pursue the client's case. The lawyer then acts as the true representative in the place of and in the interests of the client. The reality is somewhat different and substantially more complex. First, legal validity is not the only, and perhaps not even the most important, factor in the lawyer's decision to take a case. As long as most legal services (house counsel, government lawyers, and legal services lawyers are exceptions) are distributed on a fee-for-service basis, the eco- nomics of a case are critical. One might first ask, Can the client afford the fees? While most lawyers probably do not turn away clients because of their inability to pay,214self-selection by consumers of legal services minimizes such questions.2'5 In addition, businesses rather than individuals are the major consumers of legal services. Furthermore, irrespective of the ability to pay is the question of whether the case is worth the in- vestment. Although this is typically the client's decision, the lawyer may clarify just how much time, and therefore fee, is likely to be involved.21 Under a contingency fee arrangement, it is the lawyer, whose fee is calculated as a percentage of the award, who must determine whether a case is worth pursuing. Returning to the flow chart of legal mobilization diagrammed in figure 1, once a lawyer has been approached, there are a number of possible responses. However the actual advice offered may be affected by the cost

213. To the extentthat Easton is correctabout the dependenceof demandson the characteristics of the gatekeepers,then Alfred Reed's admonitionabout keepingthe legal professionopen to Lin- coln's common man is supported.Alfred Z. Reed, Trainingfor the Public Professionof the Law (New York: CharlesScribner's Sons, 1921). 214. My own data from a study of Chicago practitionersindicates that less than 5 percentcite abilityto pay as the most importantfactor in the selectionof cases. In contrastmore than 50 percent cite subjectmatter and consistencywith currentwork. These data, however,must be interpretedin light of both consumers'selection of lawyersthey can afford and of the organizationof legal practice. With more and more attorneysnow practicingwithin law firms, a decliningpercentage personally makedecisions to acceptor rejectcases. Thesedata are unpublished,but derivedfrom the Legal Educationand the ProfessionalDevelopment of LawyersQuestionnaire, in FrancesKahn Zemans & VictorG. Rosenblum,The Makingof a Public Profession,216 app. 1 question9 (Chicago:Ameri- can Bar Foundation,1981). 215. The burgeoningof legal clinics, whichtypically offer low-fee initialvisits, may go some way to diminishthe initialbarrier to seekinglegal adviceand therebydecrease the numberof claimants who self-selectout of the legal mobilizationprocess before even contactinga lawyer.Like many of the questionsraised herein, this too meritsresearch attention. 216. See Earl Johnson, Jr., Lawyers'Choice: A TheoreticalAppraisal of LitigationInvestment Decisions, 15 Law & Soc'y Rev. 567 (1980-81), for an interestingdiscussion of the implicationsof a fee-for-servicepayment system for lawyers'choices. No. 4 FRAMEWORKFOR ANALYSIS OF LEGALMOBILIZATION 1047

calculation referred to above, the range of choices is rather constant.17 The lawyer may suggest that the claimant is best advised to simply drop the matter because there is no valid legal claim or because pursuing it is too costly and/or risky for the benefit that might be realized. Rejection of a case might, however, include some advice about self-help mechanisms (e.g., how to frame a complaint to a seller), about third-party alternatives (e.g., the Better Business Bureau or a trade association), or even about other formal legal channels to pursue (e.g., local prosecutor, the Federal Trade Commission, or pro se small claims court). The lawyer may of course agree to represent the client.21 The gatekeeping role of the legal profession raises two issues. The first is who controls whom in the lawyer-client relationship, at least in terms of where cases are directed and which ones enter the public legal system. It is this control that is implied in Easton's reference to the effects of concentrating the gatekeeping role in specialized hands. Second is the part lawyers play in transforming the claims brought to them into issues cognizable by the courts. It is during the initial lawyer-client contact (and as part of the agreement to accept a case) that the process of issue transformation begins. 2. Issue Transformation: The Role of Lawyers Part of the lawyer's role is assumed to be the restatement of a layper- son's claim into legal form. Very often a highly personalized relationship between disputants is transformed almost beyond recognition in order to fit the requirements of the formal law. Put another way, in order that the law be used as a resource, the issue must be presented in a way that makes it subject to the law. The most obvious example of this is the

217. It shouldalso be noted againthat despitemuch discussion to the contrary,the availableevidence indicatesthat those looking for an attorneyusually find one, and of those who don't, cost is not a dominantfactor. See Curran,supra note 2; Mayhew& Reiss, supra note 12. 218. The discussionhas continuedto reflecta decision-makingmodel of legal mobilizationby individualactors in discreteinstances. In practicethe law as a resourceis veryoften used by corporate actorsand/or repeatplayers. For such decisionmakers it is not the basicmodel that differsso much as the cost calculusand sometimesa resultantleapfrogging of decisionstages. A corporateactor, e.g., who eitheremploys house counselor has a continuingarrangement with outsidecounsel may receivea regularreview of activitiesin light of their legal implications.That is to say, the law is being continuouslyevaluated as a possibleresource. It is not so muchthat other stepshave been elimi- nated but ratherthat the decision-makingprocess has become an aggregatephenomenon, with a prior decisionhaving been reached,presumably based on experience(see earlierdiscussion of "expectationsof success"),that it is more cost effectiveto proceeddirectly to seekinglegal assistance. As in the case of the individualdecision maker, this of coursedoes not precludethe subsequentuse of self-helpor third-partyalternatives. Individuals may also be repeatplayers and so learnfrom ex- periencethe most effectivepath of action, therebyeliminating the need for proceedingstepwise. In particular,although possibly subject to redefinition,it is likelythat once an incidentor circumstance has been definedas worthyof action and even legal mobilization,it will continueto be so defined. 1048 AMERICANBAR FOUNDATION RESEARCH JOURNAL 1982:989 transformationof a joint and amicabledecision to seek a divorceinto an adversarialformat for presentationto a court.29 Yet most issues, even decidedly legal ones, do not, and indeed are never expectedto, go to court. Still, the transformationof issues is central to the lawyer'srole:220 it may occur at any stage in the process, and it may be continuous. The previouslydiscussed definition of incidentsand circumstancesas appropriateto action in general, or to legal action in particular,thus constitutestransformation. Each action option that is ex- ercised may require some modification in the complaint so as to maxi- mize its appropriatenessfor the selected forum. As the discussionmade clear, redefinitionof issues may be done by the individualalone or with the influence of friends and associates. Available evidence indicates that actors frequentlyattempt to employ multiple techniques, sometimessimultaneously and sometimesincluding more than one third-partyalternative; however, there is no indication that the case is presentedidentically in all forums. One can, for example, easily imagine (if not recommend)that the same problem may be presented somewhatdifferently to a media action line and to a trade association. In addition, as the mobilizationprocess continues, the basic facts as well as their interpretationmay also change. Thus, for example, a complaint about a damagedappliance might become a complaintabout a re- tailer's failure to back a warrantyin the course of moving from direct confrontationof an adversaryto seekinga third-partyalternative. There, even furtherexpansion may take place, as the issue is transformedfrom an individualproblem to a question of consumerrights.221

219. While that transformation sometimes itself changes the very nature of the issue, as when ap- parently amicable divorces turn into hostile encounters by the time the lawyers are through, the transformation may only be for purposes of making the issue cognizable to the state legal structures. For a nice example of this phenomenon see David Engel's description of the divorce of pseudony- mous Mary and John Smith, and their request of the court as compared with their lawyers'. David M. Engel, Legal Pluralism in an American Community: Perspectives on a Civil Trial Court, 1980 A.B.F. Res. J. 425, 448-50. 220. According to one analysis, "transformations occur because participants in the disputing process have different interests in and perspectives on the dispute." Lynn Mather & Barbara Yng- vesson, Language, Audience, and the Transformation of Disputes, 15 Law & Soc'y Rev. 775, 776 (1980-81). 221. Such expansion of individual claims has been viewed as one way that social change is linked to legal change. Id. at 779. It should be made clear, however, that such a linkage is not always the result of planned efforts at change. Casper, e.g., in his study, Lawyers Before the Warren Court: Civil Liberties and Civil Rights, 1957-66 (Urbana: University of Illinois Press, 1972), illustrates how changes in the law may emerge from a strategic effort to win a case for an individual client. Though changes in the rights of the criminally accused were sufficiently dramatic to have been labeled a "revolution," the attorneys involved in those cases were themselves merely transforming their clients' claims into a form that would be more persuasive to the decision makers, in this case the Su- preme Court of the United States. The reshaping of issues in the appellate process is also not limited to those that become the basis for so-called landmark decisions. Court actions themselves may often change the issue by virtue of discovering and deciding an issue not raised by either litigant, by sup- pressing and not deciding an issue so raised, by expanding an issue raised, and/or by limiting or ig- noring an issue raised and not deciding it. For an analysis of cases exhibiting this process see S. Sidney Ulmer, Issue Fluidity in the U.S. Supreme Court: An Exploration in Agenda Building, paper presented at the Annual Meeting of the Midwest Political Science Association, 1979. No. 4 FRAMEWORKFOR ANALYSIS OF LEGALMOBILIZATION 1049

The substantial transformation that occurs once legal services are sought has been one of the central criticismsof lawyers and the legal processby the access-to-justicemovement. In particular,the lawyer'srole in the narrowingof an issue to fit within preestablishedlegal categories and to meet standardsof evidence has been criticizedas often changing an issue beyond recognition. Indeed it has been argued, typically as the basis for promoting more informal and conciliatory forums, that the transformationof claims is so dramaticthat the legal processis rendered incapableof addressingthe underlyingproblems that generateclaims in the first place.222 Lawyerswould surelyacknowledge their role in translatingdemands to a form appropriateto and likely to be successfulwithin public legal institutions. Furthermore,the bar would argue that it is necessarythat they do so if the benefitsof the law are to accrueto their clients. It would then follow that those who enjoy the continuousadvice of counsel (whetheras employee or on retainer)have the advantageof the transformationof their needs and wants into legal demands(including legal defensesagainst the demands of others) without themselves being requiredto concep- tualize an issue as a legal one or to determinethat the benefit of seeking legal assistanceoutweighs the costs. The benefit of ongoing counsel is preciselythis continuous review of activity for its legal implications. The archetypallawyer-client interchange then can be characterizedas one in which wants and needs, including even those convertedinto demandsin a prior stage in the decision-makingprocess, are transformedto fit the proceduraland substantivetechnicalities of the formallaw. In practice, however,the processis not nearlyso clear. In a pioneeringstudy of the role of contractin businessrelations, Stewart Macaulay described the minimalrole that legal rights play.223Even among the relationshipsthat had been "legalized"in a contract, there was little evidenceof references to the duties, obligations, and attendantsanctions so formalized.That is to say, the law did not appearto directlyaffect the interactions.While that study does not discussthe participationof lawyersin these nonlegalinter- actions, another study by Macaulayindicates that the transformationof claims into narrowlyconstrued legal issues cognizableby the courts may be truerin theory than in practice.At the stage in the legal mobilization process in which lawyers do most of their work-a long way from the courtroom-many issues are handledin much the same form as they are

222. Somewhat paradoxically two rather incompatible strategies for action have been generated by this same set of criticisms. On the one hand there are those who suggest going beneath the issue at hand to the psychological underpinnings of the problem and advocate therapy and counseling to deal with the "real" issue. On the other hand, others, who similarly criticize the narrow focus of the legal process and its inability to deal with underlying issues, instead advocate political mobilization to address the social inequities that are the "real" issues. 223. Macaulay, supra note 70. 1050 AMERICANBAR FOUNDATION RESEARCH JOURNAL 1982:989 broughtby the client, or at least not nearlyas legalisticallytransformed as the writtenlaw might suggest. In the first place, Macaulaydocuments that at least in the consumer protectionfield, lawyersoften act with little or no knowledgeof the applicable substantivelaw.224 Although he concludesthat that apparentig- norance may not be so important,given the conciliatoryrather than ad- versarialrole these lawyersplay, what is most telling is the limitedrole of the substantivelaw per se. While a transformationof issues surely does proceed in any negotiation, it does not appear on the basis of this evidence that the processis necessarilyone of narrowingto meet the dictates of the written law. If anything, it seems to be a transformationtoward reaching some common ground, including agreementsthat contradict rights under the law.225 Unfortunatelywe have only very meagerinformation about the actual lawyer-clientinterchange.226 Nevertheless there has been no scarcity of either commentaryon the nature of the lawyer-clientrelationship or of prescriptionsfor improvingit.227 In fact even the earliestproponents of providinglegal servicesto the poor recognizedthe potential problemof laypersons' manipulation by attorneys.22 One obvious source of that control is the technicallanguage of the law. Even without intent to control, the use of legalisticterminology in the shapingof issues in the lawyer-clientexchange limits the ability of the client to make informeddeci- sions about how and whether to proceed with mobilizing the law.229 Despite these concerns there has been a strong currentof opinion that

224. Macaulay, supra note 35. 225. A similar situation can exist in the criminal justice system. My own research, e.g., indicates that prosecutors sometimes get involved, and consequently employ the power of the state, in matters where no criminal laws have been violated. See Zemans, supra note 26. 226. A recently documented failure to empirically examine the lawyer-client interaction reflects problems in research design rather than any inherent impossibility in researching this most important part of the process of legal mobilization. See Brenda Danet, Kenneth B. Hoffman, & Nicole C. Ker- mish, Obstacles to the Study of Lawyer-Client Interaction: The Biography of a Failure, 14 Law & Soc'y Rev. 905 (1980); Douglas E. Rosenthal, Comment, "Obstacles to the Study of Lawyer-Client Interaction: The Biography of a Failure," 14 Law & Soc'y Rev. 923 (1980). One limited study of lawyer-client negotiations in a legal services program is reported in Carl J. Hosticka, We Don't Care About What Happened, We Only Care About What Is Going to Happen: Laywer-Client Negotia- tions of Reality, 26 Soc. Probs. 599 (1979). 227. See Mark Speigel, Lawyering and Client Decisionmaking: Informed Consent and the Legal Profession, 128 U. Pa. L. Rev. 41 (1979), for an extensive review of the literature and a call for a commitment by lawyers to shared decision making with clients. Concern about the relationship between professional and client and support for lay participation in decision making is not limited to things legal. Most work in this area has focused on doctors and their relationship with patients (see Eliot Freidson, Professional Dominance: The Social Structure of Medical Care (New York: Atherton Press, 1970), and Illich, supra note 7) or on the interaction of lay persons and experts more generally (see Stephen Wexler, Expert and Lay Participation in Deci- sion Making, in Pennock & Chapman, eds., supra note 81, at 186). 228. Cahn & Cahn, supra note 9. 229. For a similar argument about participation in the polity generally see Frantz Fanon, The Wretched of the Earth 188-89 (New York: Grove Press, 1966). No. 4 FRAMEWORKFOR ANALYSIS OF LEGALMOBILIZATION 1051

legal servicesshould be made more accessibleif justice is to prevail.Con- comitantly, numerousprograms to provide legal serviceshave emerged. 3. Lawyersand Access to Justice:Developments in Legal ServicesDelivery Systems It is almost tautologicalto assert that the availabilityof legal services affects the extent to which citizensdecide to use them to help effect their legal rights. Availabilityincludes at least threedifferent, though not unre- lated, aspects: numberof lawyersas a proportionof population, the direct financial costs of employinglegal services, and the organizationof the legal profession, including both institutionalarrangements and the distributionof informationabout them. With restrictedentry to the profession, and until recentlyprohibitions on the disseminationof information about the cost and availabilityof services,the marketin legal services has been far from a perfect one in economic terms. As part of the push for social justice in the 1960sthere emergeddemands for increased availabilityof legal services,most particularlyfor a loweringof the cost so that professional legal advice would be available to common folk. Without representation,the argumentwent, legal rightswere hollow and the just society was subverted.Although the earlyproponents of socializing the legal profession recognizedthat the cost of hiring a lawyer was only one of the limitations on doing so, the bulk of the reform effort focused on loweringthose costs by the creation of new deliverysystems for legal services.230 The 1960sand 1970ssaw a geometricincrease in the developmentof alternative(including free and low fee) legal servicesdelivery systems, but the idea itself was hardlya new one. As early as 1876there were legal aid societies for immigrants,and by 1909 at least one local bar was sponsor- ing more generalizedlegal aid.23 The first major impetus to widespread considerationof the deliveryof legal serviceswas providedby Reginald Heber Smith's pioneeringwork in 1919.232 A variationon the theme of delivery,beginning at least as early as the 1930s, was the effort to determine just what the public's "need" was for legal services.233 In the criminalarena we have seen a progressiveincrease in the provi-

230. For some of the most influential of the 1960s proponents of increasing the availability of legal services, see Carlin & Howard, supra note 3; Carlin et al., supra note 4. For an overview of some programmatic and research suggestions, see 11 Law & Soc'y Rev. 167 (1976), a special issue on the delivery of legal services, reprinting papers and discussion from a conference financed by a grant from the National Science Foundation to the Resource Center for Consumers of Legal Services. 231. James Willard Hurst, The Growth of American Law: The Law Makers (Boston: Little, Brown & Co., 1950). 232. Reginald Heber Smith, Justice and the Poor (memorial ed. Chicago: National Legal Aid and Defender Association, [1919] 1967). 233. See Charles E. Clark & Emma Corstvet, The Lawyer and the Public: An A.A.L.S. Survey, 47 Yale L.J. 1272 (1938). 1052 AMERICANBAR FOUNDATION RESEARCH JOURNAL 1982:989

sion of defense counsel by the state for those unable to pay for their own. First for capital cases (Powell v. Alabama),23 then for felony cases (Gid- eon v. Wainwright),23 and finally for misdemeanor cases in which a jail term is threatened (Argersinger v. Hamlin),236 the United States Supreme Court has required state-funded representation for the indigent. Even before, however, some states had independently adopted these policies. Thus it is in the civil arena that legal fees and the distribution of legal services has been the issue of concern and debate. The perceived need for alternative legal service distribution mechanisms is closely related to the standard fee-for-service practice, and fur- thered by the American Rule governing attorneys' fees (the requirement that each party to a legal controversy is responsible for his or her own legal fees). While that may appear too obvious to mention, it is, as its name implies, a practice that is rather peculiar to this country.237As a result, a judicial award is diminished by the cost of making or defending a claim, and if the value of an award is insufficient to cover the likely attorney fees, no case will be brought at all, particularly by the poor.238In fact an argument has been made that a change in the American Rule would be the most just as well as the most efficient way to effect the delivery of legal services.239 Even from the early days of the efforts to effect the delivery of legal services on other than a fee-for-service basis there have existed multiple goals. At least three distinct objectives can be identified: (1) provision of legal assistance to individuals who by virtue of financial or other con- straints do not have access to legal representation,240(2) aggregation of similar claims to pressure for the enforcement of the law in the interest of those whose rights are not otherwise being protected in practice,24 and (3) litigation and/or political activity to change the law so as to better

234. Powell v. Alabama, 287 U.S. 45 (1932). 235. Gideon v. Wainwright, 372 U.S. 335 (1963). 236. Argersinger v. Hamlin, 407 U.S. 25 (1972). 237. In Great Britain the standard rule is that cost follows result-that is to say, the loser pays the winner's costs, including legal fees. This has the effect of giving effect to the common law rule that the one whose rights have been violated should be made whole. For a catalog of the practices followed in selected other European countries see Werner Pfennigstorf, Legal Expense Insurance: The European Experience in Financing Legal Services 39 table 3 (Chicago: American Bar Foundation, 1975). 238. The implications of the American Rule extend well beyond the situation cited. I have addressed those issues in Legal Structure and Access to Justice: The Case of the American Rule, paper presented at the Annual Meeting of the Law and Society Association, Toronto, 1982. 239. See Albert A. Ehrenzweig, Reimbursement of Counsel Fees and the Great Society, 54 Calif. L. Rev. 792 (1966). 240. See Carlin et al., supra note 4. 241. See Joel F. Handler, Ellen Jane Hollingsworth, & Howard S. Erlanger, Lawyers and the Pursuit of Legal Rights (New York: Academic Press, 1978). It should be added that class action procedures may have the same effect. Though a perusal of the literature indicates that judicial efficiency rather than enforcement was the motive force behind the development of class action rules, this mechanism for the aggregation of claims has been used as a tool to achieve compliance. No. 4 FRAMEWORKFOR ANALYSIS OF LEGALMOBILIZATION 1053 achieve social justice.242 While these goals are not mutually exclusive, neither are they always compatible. The legal process assumes that the assertion of individual claims will guarantee enforcement of the laws, yet as Philip Lewis has argued, "an approach to legal services on the basis of individual rights, deprives even middle-class clients of benefits which they might have received, if there were better mechanisms for aggregating claims, and lawyers had thus an incentive to develop new forms of assertion and protection of rights."243 Even among some supporters of a redistribution of legal services, there is pessimism about its potential for achieving social justice.244More equal distribution of legal services, it is argued, may increase formal justice, but not necessarily substantive justice, since the law itself contains inherent biases promoting some interests over others. For the content of the law reflects the political realities of the legislative process and so grants varying benefits and obligations to landlords and tenants, parents and children, merchants and consumers, and creditors and debtors, to name just a few. It is an interest in changing some of these that has generated the third of the objectives of reform efforts: policy change, first through litigation and then with social action.245 Some mechanisms created to enhance the delivery of legal services have focused on one of these objectives; for others, the varying goals have created a continuing tension. Early legal aid schemes, for example, kept quite strictly to the individual representation model (while at the same time limiting the kinds of cases they would accept). Groups like the NAACP, the American Civil Liberties Union, the American Liberty League, and the Mountain States Legal Defense Group essentially represent issues or group interests actively pursuing policy change or preven- tion of it.246 In contrast the federally funded efforts to redistribute legal services, the OEO Legal Services Program and its descendant the Legal Services Corporation, sought to represent the poor individually, to aggregate their claims, and to seek policy changes that would better their lot.247

242. See Robert L. Rabin, Lawyers for Social Change: Perspectives on Public Interest Law, 28 Stan. L. Rev. 207 (1976). 243. Philip Lewis, The Report of the Commission: Analysis and Change in Legal Services 79, in Philip A. Thomas, ed., Law in the Balance: Legal Services in the 1980s (Oxford, Eng.: Martin Robertson & Co., 1982). 244. Richard L. Abel, Socializing the Legal Profession: Can Redistributing Lawyers' Services Achieve Social Justice? 1 Law & Pol'y Q. 5 (1979). 245. Some of this activism has been criticized as generating too much law and too many lawsuits. See, e.g., Ehrlich, supra note 88. 246. As Mayhew has noted, when the process of rationing lawyers is vested in an organization, "that organization [and not just the named litigants] will have an impact on the priorities of representation." Mayhew, supra note 13, at 420. 247. The American experience has considerably influenced similar efforts in Western Europe to provide legal services to the poor and legal reform for their benefit. See K. Schuyt, K. Groenendijk, & B. Sloot, De Weg Naar Het Recht (The Road to Justice) (Deventer, Neth.: Kluwer, 1976), for a 1054 AMERICANBAR FOUNDATION RESEARCH JOURNAL 1982:989

These not alwaysconsistent objectives gave the programsa schizophre- nia of purpose. Even the enablinglegislation for the Legal ServicesPro- gram reflectedthis duality:by congressionalfiat the supportedprograms are obligated to "provide legal advice and representation . . . to further the cause of justice among personsliving in poverty."24As a child of the War on Poverty, the Legal Services Program had a strong law reform orientation,yet its supportersacknowledged that its record in achieving its policy goals were not very impressive.249Despite the strong commitment to the pursuit of social change, evidence indicates that caseload pressuresdictated a performancesubstantially different from what the ideological goals of the planners anticipated.250The offer of free legal servicesto the poor, it should perhapshave been obvious, would present the offices with clients who had immediateand pressingproblems (often divorce and landlord-tenantcases) and little subjectiveinterest in social change. At the same time, the programwas having sufficientpolitical effect to provoke substantialopposition leadingeventually to the establish- ment of the independentLegal ServicesCorporation with new restrictions on the kinds of cases that could be accepted.25 Whateverthe successesor failuresof the programsdiscussed, they were all limitedto providinglegal servicesto the very poor, leavinga large segment of the populationtoo well off to qualify for governmentassistance but too limited in financialmeans to acquirelegal representationon the fee-for-servicebasis still governingthe distributionof most legal services. The push for redistributionof legal servicesto includethis broaderpopu- lation has generateda numberof alternativedelivery mechanisms that by affectingthe cost of employinglegal servicessurely affect mobilizationof the law. There has been and continues to be some free and some low-fee legal servicesprovided by privatepractitioners. This is consistentwith Canon 2 discussion of legal services activity in the Netherlands and emerging law shops in particular. For the United Kingdom see the report of the Royal Commission on Legal Services and its discussion of law centers. Royal Commission on Legal Services, Final Report (2 vols. London: Her Majesty's Sta- tionery Office, 1979). For a different view see Law Centres Federation, A Response to the Royal Commission on Legal Services (London: Law Centres' Federation, n.d.). A substantial intellectual debt is acknowledged to the Legal Services Program by many European activists, some of whom studied in the United States during the 1960s. 248. Economic Opportunity Amendments of 1966, Pub. L. No. 89-794, § 215, 80 Stat. 1451. 249. See Harry P. Stumpf, Community Politics and Legal Services: The Other Side of the Law (Beverly Hills, Cal.: Sage Publications, 1975), for a discussion of the OEO Legal Services Program and the evolution of its policy concerns and activity. 250. See Ted Finman, OEO Legal Service Programs and the Pursuit of Social Change: The Rela- tionship Between Program Ideology and Program Performance, 1971 Wis. L. Rev. 1001. 251. See Stumpf, supra note 249, for a discussion of some of the political assaults on the Legal Services Program. The Reagan administration has proposed that the Legal Services Corporation not be reauthorized. Though unsuccessful in eliminating the Corporation, the administration has sought to curtail the scope of its program. See note 94 supra. No. 4 FRAMEWORKFOR ANALYSIS OF LEGALMOBILIZATION 1055 of the Code of Professional Responsibility, which states: "A lawyer should assist the legal professionin fulfillingits duty to make legal counsel available."252Much of the free service comes under the pro bono publico rubricand can includeanything from taking the case of a person unableto afford and/or obtain other legal counsel, to representingan activist group, to advising a local church or charitableorganization. But these activitiesonly account for a very limited part of representation.In additionthere continuesto be low-fee legal representationof individuals, many of whom do not meet the income requirementsof available free legal services.253 Some of the low-fee work is done as a favor or a reputation-enhancing mechanismwithin a social network;most typicallyit is done by solo prac- titioners.254Because of the social networkbasis of the lawyer-clientcon- tacts, it is not surprisingthat one study in Erie County, New York, discovered that most of those thus served were middle class.255The legal work so generatedreflects the legal problemsof individuals:marital issues (33 percent),debtor-creditor disputes (15 percent),and landlord-tenant questions(15 percent).256Torts, the other categoryof cases that Cur- ran257and others have shown to be generatedin substantialnumbers by individuallitigants, do not appearunder the low-fee/no-fee arrangement because they are typicallyhandled on a contingencyfee basis. Whatever use continuesto be made of privatecounsel by this mechanism,there has been an enormous growth in institutionalizedmechanisms to provide legal servicesto those who do not qualify for free legal servicesas currently provided. In recentyears as a result of both consciousreform efforts to broaden the distributionof legal servicesand free-marketattempts to providelegal representationat prices that would effectively tap new consumers,new deliverysystems have been developed. In particularprepaid legal services plans and legal clinics have enjoyed substantialgrowth.258 Each will be discussedin turn.

252. Canon 2 of Code of ProfessionalResponsibility, American Bar Association,Committee on Ethics and ProfessionalResponsibility, Model Code of ProfessionalResponsibility and Code of JudicialConduct (Chicago: American Bar Association & NationalCenter for ProfessionalResponsi- bility, as amendedFeb. 1980). 253. Judicareis an alternativeplan, operatedby bar associations,for the deliveryof legalservices to the poor. For a discussionof this plan see SamuelJ. Brakel,Judicare: Public Funds, Private Law- yers, and Poor People (Chicago:American Bar Foundation,1974). 254. Philip B. Lochner,Jr., The No Fee and Low Fee LegalPractice of PrivateAttorneys, 9 Law & Soc'y Rev. 431 (1975). 255. Id. at 448. 256. Id. at 455. 257. Curran,supra note 2. 258. Concentratingthe followingdiscussion on prepaidlegal services plans and legal clinicsis not meantto implythat these are the only mechanisms(although they are the most prominent)that have 1056 AMERICANBAR FOUNDATION RESEARCH JOURNAL 1982:989

Although not unique to the contemporary period, legal services plans have come into their own only relatively recently in the United States.259 While these plans were originally opposed by the organized bar, several U.S. Supreme Court decisions confirmed the applicability of the right to association for the purpose of obtaining legal assistance.260 Numerous legal services plans subsequently emerged, and although innumerable variations exist, a few basic characteristics are common to most of them. First, for some preestablished prepaid fee, members of the plan have some fixed or low-cost access to legal counsel, with the nature and amount of the service provided (e.g., advice, representation in negotiations) and the legal issues covered (e.g., creditor-debtor, divorce, landlord-tenant, petty criminal) varying by plan. Whatever the service provided and areas of the law covered, the idea is that legal representation will be more accessible and less costly than otherwise.26' This in turn should have the effect of increasing legal mobilization, at least in those issue areas covered by the plan. There may also be a spill-over effect on other issues, particularly in those plans that include free or low-fee initial consultations during which counsel may provide self-help advice. In general the basic strategy of legal services plans is one that governs all insurance-the cost is spread among many individuals over a long period of time to transfer risk and pay for the services that will be distributed according to a predetermined formula. The risk of any one member's bear- ing very high costs is thus minimized. As currently constituted, most prepaid legal services plans cover members of preexisting groups, most typically unions but also frequently consumer groups. The ability of prepaid legal services plans to move beyond preexisting groups262 is severely been developed to serve the middle-income population. Bar associations have also been active in this area in recent years. Taped messages on various aspects of the law which can be dialed on the tele- phone have, e.g., become widespread. In Chicago this has been developed and implemented through the cooperation of the Chicago Bar Association and the Chicago Public Library. This same bar association has sponsored a number of programs in different areas as part of its lawyer referral services, including, e.g., a low-cost matrimonial plan. A description of these programs is provided in a manuscript by Terrence M. Murphy (assistant executive director, Chicago Bar Association), Lawyer Referral Service: The Complete Delivery System for Legal Services. 259. Pfennigstorf and Kimball attribute the earlier and larger development of prepaid legal service plans in Europe to several factors: the absence of the contingent fee, rules requiring the loser to pay attorneys' fees, and more standardization and greater public control of legal fees. Werner Pfennigs- torf & Spencer L. Kimball, eds., Legal Service Plans: Approaches to Regulation 2 (Chicago: Ameri- can Bar Foundation, 1977). 260. See NAACP v. Button, 371 U.S. 415 (1963); Brotherhood of Railroad Trainmen v. Virginia ex rel Virginia State Bar, 377 U.S. 1 (1964); U.M.W. Dist. 12 v. Illinois State Bar Ass'n, 389 U.S. 217 (1967); United Transp. Union v. State Bar, 401 U.S. 576 (1971). Regulation of plans is permissi- ble and varies by state. 261. In some cases (closed plans) attorneys are preselected, in others (open plans) the member is free to choose an attorney who will be paid by the plan according to its fee schedule. 262. There are some entrants into the field providing insurance to individuals. Midwest Mutual Insurance of Des Moines, Iowa, is one example; another is entrepreneur Harland Stonecipher of Ada, Oklahoma (Paying Less for a Lawyer, Consumer Rep., Sept. 1979, at 522, 525). No. 4 FRAMEWORKFOR ANALYSIS OF LEGALMOBILIZATION 1057

restrictedby significantdifferences between the demandfor legal services and the medicalmodel. First is the distributionof problemsor goals subject to legal or medicalassistance. While it is surelytrue that medicalprob- lems are not equally distributedthroughout the populationand that the need for medicalattention is to some extentin the eye of the beholder,the use of legal servicesat least for individualsappears to be limitedto discrete events like divorce, writing a will, or purchasinga home.263Second, the timing of these events, unlike most medical problems, is often readily predictableat least to a relativelylimited time and situation frame. This time-boundrisk limits the willingnessto pay for legal insuranceover the extendedperiod of time that is necessaryif the standardinsurance calculus is to be applicable.26 The inherentlimitations of prepaid plans have not doomed their existence. For thereare a sufficientnumber of preestablishedgroups, partic- ularlyunions, to providethe basis for substantialgrowth. The statusthat prepaidlegal serviceplans have attainedis indicatedby the emergenceof umbrellaorganizations and by substantialinvolvement and even assistance by the organizedbar. After activeparticipation in the areafor a number of years, in 1975 the AmericanBar Association, having "recognized that the vast middle segmentof Americawas underserved,"265created an affiliate, the AmericanPrepaid Legal ServicesInstitute, which provides informationand encouragesthe developmentof prepaidplans. The Na- tional ResourceCenter for Consumersof LegalServices, another clearinghouse of informationon legal servicesplans, estimatesthat in 1979 from 500 to 600 employer-fundedplans were in operation,covering about five million families.26While such institutionalizationof legal servicesinfor- mation networks is indicative of development, their actual impact is unknown. The emergenceof legal clinics similarlyreflects concernsabout the organization of legal services delivery systems and lawyers' efforts to ex- pand their marketand attract more consumers.As put rathersuccinctly by the chairmanof the ABA'S Commissionon Advertising,"we ought to recognize that the public is being denied legal servicesand we're being denied an opportunityto offer legal services."267Legal clinics, one mechanism developed to fill this gap, are characteristicallylow-fee/high-vol-

263. Curran, supra note 2. 264. Legal insurance for auto accident liability is the exception that proves the case. That is to say, unlike most other use of lawyers by individuals, needing a lawyer for such liability is unpredict- able and similarly applicable to the bulk of the adult population (i.e., every driver). Under those conditions the insurance calculus can operate effectively. 265. American Prepaid Legal Services Institute brochure (Chicago: American Bar Association, n.d.). 266. Consumer Rep., supra note 262, at 526. 267. Legal Profession Has Severe Image Problem with Consumers, Advertising Survey Shows, 2 Nat'l L.J., Aug. 18, 1980, at 6, col. 2. 1058 AMERICANBAR FOUNDATION RESEARCH JOURNAL 1982:989

ume operations. Based on the assumption,confirmed by Curran'sdata, that most individualsuse or have use for the law in a limited numberof areas, and further arguing that much of the work can be standardized and thereforecompleted at low cost, legal clinics have proliferated. Firstgaining national attention in a SupremeCourt case in whicha legal clinic challengedits state bar association'sprohibition on advertising,268 the historyof legal clinicshas been closely tied to that of professionalad- vertising.For the early proponentsand proprietorsof legal clinics argued that low cost could be sustainedonly with high volume, whichwas in turn dependentupon advertising.However, tools of high volume such as para- legals and word-processingequipment, often describedas endemicin legal clinics, are appearingwith increasingfrequency in the practiceof law generallyand in largefirms (where the economiesof scalejustify them)in particular. Furthermore,low-fee neighborhoodsolo practitionershave been aroundfor a very long time. What then distinguishesthe legal clinic from traditionalpractice? Since the term is appliedto a wide varietyof offices, that is a difficult question to answer. Beyond the generalcommitment to low fees, which for many cases are predeterminedby type of case (e.g., a set fee for an uncontesteddivorce), accessibilityis increasedby offering an initial consultationat a very low fee ($10-$25) duringwhich a determinationcan be made about contract- ing for services.According to LeonardJacoby of Jacoby & Meyers, the best known of the multipleoffice clinics, about two-thirdsof their initial clients do not need legal services:"Mostly money claims-rent deposits, people sued by collectioncompanies. The size of the case doesn't warrant hiringan attorney, so we tell them how to go to small-claimscourt, how to negotiatewith bill collectors,and so on."269In termsof the framework presentedhere, lawyersare providinginstruction in self-help techniques that, if followed, returnthe claimantto an analyticallyearlier stage in the legal mobilizationprocess. Clinics also seem to be distinguishedby aggressivemarketing techniques (including,but not limited to, the growth of chains and franchis- ing that providethe economiesof scale for advertising),the acceptanceof credit cards, and a conscious effort to situate in high-trafficlocations (like shopping malls) that will encourage walk-in business. Just how many offices would qualify as clinicsunder such criteriais difficult to determine. In Septemberof 1979, ConsumerReports270 published a list of

268. Bates v. State Bar, 433 U.S. 350 (1977), held that prohibitionson advertisingconstitute an unconstitutionalrestriction on free speech.The Code of ProfessionalResponsibility's ban on advertising was subsequentlychanged to conformto the dictatesof the court. Just what kindsof regula- tions on advertisingwould meet the constitutionaltest is unsettled. 269. ConsumerRep., supra note 262, at 523. 270. Id. No. 4 FRAMEWORKFOR ANALYSIS OF LEGALMOBILIZATION 1059

legal clinicsin 37 states and the Districtof Columbia,many with multiple offices. Jacoby & Meyers, for example, opened in Los Angeles in 1972 and by 1979had 35 offices in Californiaand New York. Just what the future will be for legal clinics is unknown. Indeedthere is little evidencebe- yond media coverage of what the experiencesand impact of either prepaid legal plans or legal clinicshave been so far.27 It is worth considering these issues briefly. Many potential benefits have been argued for both prepaidlegal services plans and legal clinics. Consistent with the access-to-justicemovement, less costly legal services(by virtue of either spreadingrisk or stan- dardizingservices or by a combination thereof), and better geographic availabilitywere expectedto encouragecitizens previously not using lawyers to do so. That is, new deliverysystems would increasethe use of lawyers by those who do not qualify for free legal assistancebut are unable to afford representationin the traditionalprivate practice market. In addition, lower fees would facilitate the pursuit of cases (both offensively and defensively)whose potential benefits did not justify the attorneys' fees previouslydemanded. Broader distributionof legal serviceswould then have a numberof desirableeffects. Rightsguaranteed by law would now be pursuedand the law would thus be more effectivelyimplemented. Indeed, consistent with the legal mobilization perspective presented herein, the argumenthas been made that a broaderdistribution of legal serviceswould have a deterrenteffect. For the knowledge"that a person is not helpless-that he has the means to defend himself with the full force of the law againstabuse or exploitation,"Pfennigstorf and Kimball point out, "operatesas a deterrentto personswho might otherwisetake advantage of him."272In addition, some plans include an educational function said to both increaserights consciousnessand help participants better protect and defend their legal rights without the interventionof counsel. Have costs been reduced? Is a new population being reached? Are rights previously unprotected now being safeguarded?Are laws being more effectively implementedby their beneficiaries?Has a largersupply of lawyers increased demand, or have previous users just changed sources? The answer to all these questions is quite simply "we don't know." Although both legal clinics and prepaidlegal servicesplans have receivedsubstantial media attention, almost no systematicevaluations of

271. For an ideal of some of the other alternativesystems, see discussionsupra in note 258. 272. Pfennigstorf& Kimball,supra note 259, at 24. 1060 AMERICANBAR FOUNDATION RESEARCH JOURNAL 1982:989 their effects have been conducted.73In part this is because of the complex methodologicalproblems that such researchwould entail.274Still, it is ratherremarkable that mechanismsso highly touted have not received much seriousscholarly attention, particularlygiven the earlyinvolvement of legal researchersin the reformefforts. What can be said at this point is that since legal servicesdelivery systems affect the decision-makingprocess in legal mobilizationof the law, then any new such mechanismhas at least the potential to affect each decision stage and most particularlythe decision whetherto seek the assistanceof legal counsel. 4. Issue Variabilityin the Use of Lawyers What is known about the actual use of legal servicesby the citizenryis based largelyon two studies:Mayhew and Riess's DetroitArea Studyand BarbaraCurran's The Legal Needs of the Public.275These data confirm the importanceof the nature of the issue in the mobilizationof the law. At one level this is merely a reiterationof the effects of the law/policy variablediscussed earlier. That is to say, the specificprovisions of legislation make the law more or less likely to be mobilized. In addition, there are issues that are simply more law infused, well known as entailing a legal dimensionand more likely to generatedecisions to use the law that is available. The Detroit study, for example, found that "half of all contacts between citizens and attorneysconcerned wills, estates, and the transferof real property."276Curran's data confirm the not too surprisingrelation- ship betweenthe extent of a problem'soccurrence among the population and use of a lawyeras a resourcefor handlingthe problem. But the relationship is far from perfect, and a brief reviewof some of Curran'sfindings will clarify the importanceof issue variabilityin the use of lawyers' services. Of all the problemcategories in Curran'sstudy, real propertyand torts stand out in termsof the proportionof the adult populationwho ever en- counteredthem (700 and 475 per 1,000 population, respectively).277Ex-

273. There are, of course, some exceptions. The Shreveport Experiment in Prepaid Legal Services (Robert Paul Hallauer, 11 J. Legal Stud. 223 (1973)) was an early attempt to study a plan sponsored by the Ford Foundation and the American Bar Association. Timothy J. Muris and Fred S. Mc- Chesney more recently conducted a study of a legal clinic (Advertising and the Price and Quality of Legal Services: The Case for Legal Clinics, 1979 A.B.F. Res. J. 179). 274. For a discussion of the extent and nature of the methodological issues see Werner Pfen- nigstorf, Study of the Impact of Large-Scale Legal Clinics or Closed Panel Legal Service Plans on the Employment Situation of Independent Practicing Attorneys (preliminary research proposal sub- mitted by Werner Pfennigstorf, principal investigator, through the American Bar Foundation, to the National Science Foundation, Oct. 7, 1977). 275. Mayhew & Reiss, supra note 12; Curran, supra note 2. Other studies that cover the use of lawyers have been limited either to those cases that are actually filed in the public courts or to a specific legal issue. 276. Mayhew, supra note 13, at 417. 277. Curran, supra note 2, at 103 fig. 4.1. No. 4 FRAMEWORKFOR ANALYSIS OF LEGALMOBILIZATION 1061

cept for consumerproblems, reportedby 27 percentof the respondents, no other problemswere ever encounteredby more than a quarterof the population.278The proportion of those who reported having had the problemwho consulted(but did not necessarilyemploy) a lawyerto assist them is distributedsomewhat differently. Wills and divorces generated the greatest percentageof lawyer use (85 and 69 percent, respectively). For real propertyacquisition, 39 percentcontacted lawyers, for job discrimination only 1 percent did so.279 These figures of course reflect a multistagedecision process, with the failureto consult a lawyeroften the result of not pursuingany action, or not seeking the use of any resource.28But in other cases the failure to contact a lawyerreflects the use of an alternatemechanism. In instances of tort liability, for example, over 80 percent of those who acted employed some resource, but less than 25 percent of those consulted lawyers. For wills, close to 90 percent of those who acted used a resource, but in contrastto the tort situation, more than 90 percentof them consulted a lawyer.281The differencesbetween these two issues, includingin particularthe availabilityof alternativeresources, are sufficientlyobvious to make a detailedcomparison unnecessary. The same can be said about the variabilityin resourceuse for each of the other issues consideredin the legal needs of the public study.282The point is that legal mobilization in general and the decision to employ legal services in particularis a highly complex process, and we cannot assume that the employmentof legal servicesis a totally comparableact across issue areas. This means that researchin the civil arena, as in the criminalsphere, must not uncrit- ically assume similarityof action because of the attachmentof the same social label.283 The model predictsand availableevidence confirms the severelimits of looking at lawyeruse as the exclusivemeasure of legal mobilization.It is ratherone of a numberof importantindicators and one by its naturein- extricablefrom the assertion of legal norms. The decision to initiate a claim in a state court or agencyis even less likely and generallymore costly than employinglegal services,in large measurebecause it requiresex- tensive use of lawyertime. Courtshave, however,until very recentlybeen the focus of most researchattention. For that reason, and as the final

278. Id. at 102. 279. These figures are based on lawyer use for the most recently reported instance, so every re- spondent receives equal weight and the figures are not skewed by the activities of individuals who re- peatedly employ lawyers. Curran, supra note 2, at 135 fig. 4.26. 280. Curran compares the percent of problem-havers who took action with the percent of action- takers who used any resource. Id. at 137 fig. 4.27. 281. Id. at 139 fig. 4.28. 282. Id. 283. See Howard S. Becker, Outsiders: Studies in the Sociology of Deviance (New York: Free Press, 1973), for a discussion of this point. 1062 AMERICANBAR FOUNDATION RESEARCH JOURNAL 1982:989 stage in the legal mobilizationdecision-making process, we turn now to a discussionof the initiation of action in courts and state agencies. D. The Decision to File a Claim in Court or with a State Agency As the previous discussion indicates, only a very small proportionof potentialcases ever reachesthe stage of a claim filed in public court. This is explainedby the relianceof legal mobilizationon individualinitiative and the numberand complexityof the factors that affect the decision of whetherto pursuea case and what path to take. With so many incidents and circumstanceswith legal potential resulting in nonaction (whether due to a failure to define the situation as a problem or to an unwilling- ness to bear the costs of action), and many generatingaction handledby alternativemeans, the cases actually coming to court are a very limited and very selectiverepresentation of possible cases. The resultof this process is what Willard Hurst characterizesas the marginalityof court involvement.284Although it is difficult if not impossibleto accuratelyde- velop a base figure of potential cases against which filed cases could be compared,Hurst's analysisof the availableliterature reveals the virtually unanimousview that only a small percentageof potentialclaims ever gets to court "even to the extent of the filing of the first papersnecessary to launch a court proceeding."285 Using data from the InternalRevenue Service, Hurst goes on to document the marginalityof court involvementin judicial reviewof administrative agency actions.286The 1974 data he reports reveal a pyramidof cases beginningwith the base figure of federaltax returnsfiled, then going through the administrativereview process, then to the courts for review, and finally to U.S. SupremeCourt decisions. In pyramidalfashion the numberof cases continues to decline as they move throughthe step- wise process.287Similar findings are reportedfor the enforcementof the Wage-PriceFreeze of 1971 by the Office of EmergencyPreparedness. In his study of that office, Kagan found that of the 50,000 complaints receivedin a 90-day period, only 8 suits were actuallyfiled.288 State-level agencies are no different, as Steele documentedin his study of the At- torney General'sOffice of ConsumerComplaints in Illinois.289 Another instructiveexample of the marginalityof court involvement and the progressivefall-off of legal claims is providedby Zeisel, Kalven,

284. Hurst, supra note 98, at 428. 285. Id. at 428. 286. Id. at 429. 287. Hurst also presents data from Florida, Illinois, and Wisconsin to illustrate the effective finality of trial court dispositions, despite the existence of appeal mechanisms. Id. at 425. 288. Robert Kagan, Regulatory Justice 29-31 (New York: Russell Sage Foundation, 1978). 289. Steele, supra note 26. No. 4 FRAMEWORKFOR ANALYSIS OF LEGALMOBILIZATION 1063

and Buchholz'sdata on the dispositionof personalinjury claims in New York City. These data are particularlyuseful because of the dominance of personalinjury cases in our civil courts. For every 100 personalinjury claims, 80 are settled before suit is filed. Three-quartersof the 20 in which suit is filed are settled before trial, most before assignmentto a judge. On the average,actual trials begin in only 4.5 out of every 100 personal injury claims, with only 1.7 tried to judicial disposition.290From the perspectiveof the model, this is further evidence of gatekeepingat each structurallevel and of the continuingburden on the decision maker to weigh the costs versus the potential benefits of proceedingfurther.291 These data should not be interpreted as negating Joseph Sax's292 point regardingthe distinctivenessof litigation as a means of citizen access to governmentaldecision makingby virtue of its freedom from the political screeningthat occurs in other governmentalavenues. Yet neitherthat in- dependencenor the inexorableforward movement of cases in the judicial processminimizes the need for a continuingpositive decisionto pursuea claim (therebytriggering a reevaluationof the cost-benefitcalculus), nor does either one eliminatethe regime rules that regulatethe flow of demands into the judicial system. These same rules not only regulatecases at the entry level but continue to influencetheir progressionthrough the judicial process. By affecting the likely in-court potential of a claim, of course, these rules also affect lawyers'advice about whetherand how to proceedwith a claim. In some areas, the rules are so well known that the generalpublic also understandstheir impacton the flow of cases and acts accordingly;the most obvious example is the requirementof a judicial imprimaturfor a divorce settlement. There is a whole host of structuraland jurisdictionalvariables that affect the flow of the demandson the polity that are formallyarticulated in the form of litigation.A brief reviewof some of these will be sufficientto give a sense of just how extensive and variablesuch rules can be. That these rulesthemselves may be, and indeed often have been, the subjectof litigation reflects broad cognizance of their substantialimpact on the flow of cases into the courts and by implicationon the claims for which the law can be effectively mobilized. The zero-sum game nature of the adjudicativeprocess, including a finding of blame, limits cases by imposing particularlyhigh social costs where the litigants have had a prior personal relationship.In addition, once formal litigation is initiated, time and monetary costs tend to in-

290. Zeisel et al., supra note 46, at 40 table 14. 291. For those claims that are satisfied, there will of course be no need for such an evaluation. 292. Joseph L. Sax, Defending the Environment: A Strategy for Citizen Action (New York: Alfred A. Knopf, 1971). 1064 AMERICANBAR FOUNDATION RESEARCH JOURNAL 1982:989 crease geometrically. Furthermore, seemingly technical legal rules of ap- parent interest only to lawyers may have a dramatic effect on mobilization of the law by regulating whether and in what form cases may be brought to court.293 Broadening of the interpretation of standing to sue, for example, has been endorsed by legal activists from the early progres- sives to contemporary environmentalists because it increases the opportunities to be heard in court and thus the potential to implement favored laws. In recent years, there has been an expansion of standing for consumers and for those who use and appreciate the environment, making it easier for them to sue, thereby increasing their effectiveness in mobilizing the law even at the initial step of invoking a legal norm.294 Related to the issue of standing and similarly carrying implications for the initiation of court action is the question of private causes of action. Arguing that effectiveness and efficiency of enforcement of the laws are enhanced by granting government agencies the power to sue on behalf of individuals whose rights have been violated, the right of the private citizen to sue has often been denied.295 A local controversy over private causes of action involved a woman attempting to challenge her denial of admission to medical school on the grounds that the school had violated Title IX of the Civil Rights Act. The issue initially argued, and eventually answered in the affirmative by the U.S. Supreme Court, was whether, as a private citizen, the litigant had the right to sue.296 From the perspective of the model presented here, limitations on private causes of action restrict the options of mobilizers of the law and put their efforts to obtain the benefits of legality at the discretion of governmental decision makers. While implicitly endorsing private causes of action, this line of argument, it should be noted, does not speak to the benefits that may derive from the ability of government agencies to promote implementation of the law by the aggregation of claims and invest- ment of governmental resources in their pursuit. Rather it is to argue that

293. Numerous other structural variables also affect the flow of litigation, particularly at the entry level. These include, but are not limited to, courts of limited jurisdiction, specialized regulatory agencies, court filing fees, and direct court collection of child support payments. Focusing the discussion in the text on just a few examples should not diminish the general point that structural variables make an important difference in the distribution of legality. 294. For an expanded discussion of existing law including case citations see Samuel Mermin, Par- ticipation in Governmental Processes: A Sketch of the Expanding Law, in Pennock & Chapman, eds., supra note 81, at 136. 295. This very issue has in fact been the subject of substantial legal controversy. In 1975 the U.S. Supreme Court established four criteria by which to judge whether a private right of action can be inferred from a federal statute (Cort v. Ash, 422 U.S. 66 (1975)). Since then there has been a series of cases that have applied those criteria to a number of statutes. See, e.g., Touche Ross & Co. v. Redington, 442 U.S. 560 (1979) (re: Securities Exchange Act of 1934); Cannon v. University of Chi- cago, 441 U.S. 677 (1979) (Title IX of Educational Amendments to Civil Rights Act); and California v. Sierra Club, 451 U.S. 287 (1981) (Rivers and Harbors Appropriation Act of 1899). 296. Cannon v. University of Chicago, 441 U.S. 677 (1979). No. 4 FRAMEWORKFOR ANALYSIS OF LEGALMOBILIZATION 1065 restrictions on private causes of action-which are not inherently inconsistent with agency enforcement efforts-do affect the ability of individual citizens to garner the benefits of legality. Although the distinction between filing a claim with a governmental agency or with a court is not illustrated in the diagrammed model, in either case the initiation of the enforcement mechanism is dependent upon claims brought by aggrieved citizens. What varies, and what thus must enter into the decision-making calculus, are the costs, risks and probabilities of satisfaction of one route versus another.297 What the elimination of a private cause of action does is quite simply eliminate one option and the related threat of invoking it. Another structural variable that has great potential to affect legal mobilization and has been the center of much controversy in recent years is the class action suit. While most discussions concentrate on use of and rulings about Federal Rule 23, states also have class action rules, based on either statutory or common law. The basic rule that cases involving the same facts and claims by many plaintiffs can be tried as a single cases is touted as a boon to both judicial efficiency and enforcement of laws where the stakes involved for a single plaintiff are too small to warrant formal legal action.29 As stated in an 1853 Supreme Court case,299 class actions exist "for convenience . . . and to prevent a failure of justice." In practice the rise and abuse of class actions have been and will no doubt continue to be the subject of controversy and scholarly debate.300 The point of interest for our consideration here is that Rule 23 (and state vari-

297. In our federal system there is often the question of the appropriate jurisdiction in which to file suit, yet another structural variable that can affect outcomes. In some cases there are choices to be made between federal and state courts, or even among state courts. The expectation is that that selection will be made on the basis of estimates of likely success. Such choice among tribunals is not limited to the American context. Developing nations with a colonial history typically enjoy a legal system that incorporates some aspects of both their traditional legal system and that brought and im- posed by the colonial power. This sometimes presents choices to the litigant, with the new courts constituting a mechanism for circumventing the traditional administration of justice. For a discussion of this situation in the Indian context see Lloyd I. Rudolph & Susanne H. Rudolph, The Moder- nity of Tradition 261 (Chicago: University of Chicago Press, 1967). 298. A case recently settled in the U.S. District Court in Chicago provides a nice example: Shore v. Saks, 74 C 3513 (N.D. Ill., filed Dec. 5, 1974). Subsequent to a criminal antitrust case involving price fixing of women's clothing by three department stores, civil actions were filed on behalf of consumers who had overpaid. Although the stores agreed to pay $1,296,000, the amount paid to any one customer was very small. As an unnamed member of the class I received an award amounting to a grand total of $20.54. With the average refund being about $50, none were sufficient to warrant an individual action. 299. Smith v. Swormstedt, 57 U.S. (16 H.) 288, 303 (1853). 300. For a sample of the arguments, see Jack B. Weinstein, Some Reflections on the "Abusive- ness" of Class Actions, 58 FRD 299 (1973); William H. Becker, Introduction: Use and Abuse of Class Actions Under Amended Rule 23, 68 Nw. U.L. Rev. 991 (1974); Richard P. Berg, Zahn v. In- ternational Paper: Taking the Action Out of Class Action, or Can Zahn Be Avoided? 12 San Diego L. Rev. 208 (1974); Kenneth W. Dam, Class Actions: Efficiency, Compensation, Deterrence, and Conflict of Interest, 4 J. Legal Stud. 47 (1975); Roger Bernstein, Judicial Economy and Class Ac- tions, 7 J. Legal Stud. 349 (1978). 1066 AMERICANBAR FOUNDATION RESEARCH JOURNAL 1982:989 ations on that theme) and seeminglytechnical interpretations of the procedures surroundingits use have, like other structuralvariables, important distributiveeffects on the mobilizationof the law to the extent that they affect the flow of cases into the courts by changingthe costs of entry and completion.301 Formalrules that regulatethe flow of litigationare only part of the cal- culationinvolved in the decisionof whetheror not to pursuea claim with a state agency. The six variablesdiscussed earlier-law/policy, community norms, rights consciousness, socioeconomic status, expectationsof success, and anticipatedcosts-continue to operate and affect the decision to make a formal legal claim.302These same variablescontinue to affect the decision to pursue a suit to judicial disposition.303 As illustratedin the model, the results of a claim filed in a court or governmentagency are as variableas the resultsof pursuingother paths. Wherea formal dispositionhas occurred,there is the furthernecessity to executethe remedies,which may in itself involve anotherinitiation of the legal mobilizationprocess, includingthe possibilityof furtherlitigation. As in other stages in the process, settlementsmay also, if not typically, result from formal litigation or administrativehearings. And of course thereis alwaysthe option to withdrawthe claim. Such withdrawalmay in fact take many forms. It may, in termsof the model, be a returnto either lumpingit or avoidance,a returnthat is an option at any and everypoint in the mobilizationprocess. Yet once the claim has been pursuedby some more active stance, some of the costs will be borne that might have been avoided had the lumping-itor avoidance choices been exercisedat the outset.

301. In recent years, after a period of substantial growth in class actions, the calculus involved in filing such an action has been substantially changed as the direct result of a series of Supreme Court decisions that effectively limit their use. In Synder v. Harris, 394 U.S. 332 (1969), the Court required compliance with the $10,000 jurisdictional requirement for each plaintiff; in Zahn v. International Paper Co., 414 U.S. 291 (1973), this was significantly expanded to include unnamed plaintiffs as well. Since Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974), actual notice is required of every iden- tifiable class member, and in Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240 (1975), the Court prohibited the awarding of attorneys' fees unless authorized by statute. For a more extensive coverage of the cases see Note, Finding a Forum for the Class Action: Issues of Federalism Posed by Recent Limitations on Use of Federal Courts, 28 Syracuse L. Rev. 1009 (1977). 302. Though this decision may be made jointly by litigant and attorney, the basic decision-making model continues to apply. The lawyer-client relationship and the nature of shared decision making has been the subject of a growing literature. See discussion above of issue transformation, and Douglas E. Rosenthal, Lawyer and Client: Who's in Charge? (New York: Russell Sage Foundation, 1974). 303. There are numerous court studies that lend insight into the impact of these variables, though they are typically framed to consider case filings as the data base without consideration of the screening process that has preceded formal entry into the courts. Hunting & Neuwirth, supra note 6, is an exception. Without diminishing my basic contention that an understanding of the use of the law as a resource requires a broader research focus, I maintain that studies of litigation are clearly still warranted, given the state of our knowledge. For two of the best examples of court studies that implicitly consider law as a resource, see Herbert Jacob, Debtors in Court: The Consumption of Government Services (Chicago: Rand McNally & Co., 1969), and Ruhnka & Weller, supra note 121. No. 4 FRAMEWORKFOR ANALYSIS OF LEGALMOBILIZATION 1067

The results of the process, as indicatedby the feedback loop, are hypothesizedto affect expectationsof success in future decisions to mobilize the law. That feedbackmay be issue specific(for example,experience with legal mobilizationin an automobileinjury case may only affect decisions relatingto future similarevents), or it may have an impact on future decisions to mobilize the law more generally.In addition, expectation of success and its impact on decisions to mobilize the law may be based upon vicarious experienceor perceptionsof how the system has worked, and what the resultshave been, for relevantothers. That information is derived in part through the seeking-of-advicestep discussed earlier. For these and the host of other questions raised by this discussion, there is researchwaiting to be done. The frameworkhas been developed out of extant empiricalresearch but most certainlyneeds to be applied before its benefits can be determined. III. CONCLUSION It is only relativelyrecently that citizens' use of the law has begun to draw scholarlyattention. Reflectingthe concernsof the access-to-justice movement, "legal needs" and "dispute resolution" have been the focuses of that research.These enterpriseshave contributedenormously to our knowledgeof the use of the law, but the circumscribedscope of each has renderedthem insufficientto explainmuch of the observablepattern of legal mobilization:strict relianceon a legal needs perspectivehas neglected the extent to which needs are in the eye of the beholder;the dispute resolution (or, as more popularly and surely more accuratelyde- noted, "dispute processing")approach has failed to consider the large sectorof legal activitythat involvesno disputeat all.304In addition,much of both the legal needs and the dispute resolutionliterature often carries substantialnormative baggage. In both cases thereis an implicitif not explicit concern that somethingis amiss (which indeed there may be), that justice is being ill servedin large measurebecause of the structureof the legal professionand the distributionof legal services,and becauseof the inappropriatenessof the nature and requisites of adjudication to the resolutionof disputesamong unequalsor among individualswith continuing relationships.The argumentpresented herein neither dismissesnor contradictsthose concerns as appropriateconsiderations for the social agenda. The difficulty lies in limiting our understandingof citizens' use of the law to the vision reflectedin those perspectives.In contrast, it has been argued, law conceptualized as a resource is a more accurate

304. See Engel, supra note 219, for evidence of how limited is the proportion of litigation that involves actual disputes. Friedman and Percival similarly document the limited role of disputes in court activity in two counties in California. Lawrence M. Friedman & Robert V. Percival, A Tale of Two Courts: Litigation in Alameda and San Benito Counties, 10 Law & Soc'y Rev. 267 (1976). 1068 AMERICANBAR FOUNDATION RESEARCH JOURNAL 1982:989 characterizationand (most importantfor the directionof research)provides a better frameworkfor understandingthe observablepattern of legal mobilizationin its many variationsand for all sectors of society. The Americanlegal system is structuredso that activity is dependent upon initiation by directly interestedparties. Whether this structureis either appropriateor likely to promotejustice is well beyond the scope of this inquiry.Rather the point is that if we are to understandcitizens' use of the law we need to employ a frameworkof analysisthat is appropriate to the processand that both clarifiesand is consistentwith availableevidence. A rational decision-makingmodel meets these criteria. Although not carriedvery far, there are some referencesin the literature to the appropriatenessof a decisionmodel. Feeley, for one, has suggested the applicabilityof a cost-benefit or rational-choiceanalysis to compliancewith the law.305Drawing on the use of such a model in the literatureon social choice, Feeley attemptsto apply a similaranalysis to the individual actor's decision to comply with the law. He concludes that coercionis necessaryas a cost of noncompliance.In consideringthe societal impact of law, Brown and Crowleysimilarly suggest employing utility theory to explain compliance and noncompliancebased on the expected value of complaintbehavior to the complyingactor.306 Yet these analysts of the legal system, like so many others concerned with compliance, neglect the centralrole of the beneficiaryof the law in insuring the complianceof others who would stand in the way of receiptof their benefits. Put in terms of rational-choiceanalysis or utility theory, the beneficiaryof the law typicallyis a centralactor in that decisionby effectively controlling some of the costs of noncompliance. Even in the criminalsystem where most of the researchhas focused, the potentialfor coercion largely depends on the willingnessof the victim to initiate the legal process and in most cases on his or her willingnessto see it through to completion. My point is that the same kind of rational-choiceap- proachneeds to be appliedto those who decideto mobilizethe law. Since the law is not automaticallyimplemented and voluntary complianceis often not forthcoming, it is the potential beneficiariesof the law who must decide to assert their rights. It is that decision to mobilize the law (from merelyinvoking a legal norm all the way to litigationin court) that is an appropriatesubject of analysis.The structureof the legal systemin fact assumes that self-interestedactors will make their own cost-benefit analysesin the determinationof whetherand how to pursuea legal claim.

305. Malcolm Feeley, Coercion and Compliance: A New Look at an Old Problem, 4 Law & Soc'y Rev. 505 (1970). 306. Don W. Brown & Donald W. Crowley, The Societal Impact of Law: An Assessment of Re- search, 1 Law & Pol'y Q. 253 (1979). No. 4 FRAMEWORKFOR ANALYSIS OF LEGALMOBILIZATION 1069

The rational-choicedecision-making model proposedhere is not meant to imply the classicconcept of economicman who is completelyinformed and makes decisionsunder conditions of certainty.Decades ago Herbert Simon pointed out the important differences between strict rationality and rational decision making in practice.307In contrast to the requirement of objective rationality that the consequences of each possible choice be anticipated, in practice information about consequences is highly fragmentary.In addition, the classic economic model requires choice among all possible alternatives,when only a few ever come to mind.308Simon suggests not that rationalityis useless as a concept but ratherthat in practicewhat obtainsis a "subjectiverationality," one that is bound by limited knowledge of alternativesand their consequences. This concept is clearlyapplicable to legal mobilization,for the individual citizen's knowledgeof alternativepaths, and the likely consequencesof pursuingthem, is severelylimited by a host of factors, many of them de- lineated in the model presentedhere. Legal mobilization is by its very nature a high-risk enterprise;even under the best of circumstances,probabilities of outcomes are the only assuranceavailable to the decisionmaker. From this perspective,an individual acts rationallywhen decisionsare made and actions are taken that are believed to be most likely to achieve the goal the individualhas set. Whetheran outside observerwould agree with either the reasonableness of the goal or the strategyundertaken to achieve it is beside the point. The model of legal mobilizationpresented here views users of the law as subjectivelyrational in that within their knowledgeand capabilitiesthey weigh the perceivedcosts of invokingthe law and pursuinga legal claim (and the alternativesthey see as availableto do so) againstthe anticipated benefits and the probabilitiesof achievingthem. Lindblom notes that developments in decision theory suggest that problem solving is not a linear process with each step exhaustedbefore the next step is taken.309In complex matterssuch as mobilizationof the law, it is not possible to anticipateevery contingencythat exists or might develop in the course of pursuinga claim. Recognitionof changingcir- cumstancesis particularlyimportant to understandingthat even if it were possible to develop a "best" path in pursuitof a selectedgoal, as is inherent in classic economic choice theory, what is "best" may not be stable in a dynamic world, and further that the steps taken themselves contributeto these changes. As has been describedin the text, the se-

307. Herbert Simon, Administrative Behavior (New York: Macmillan Co., 1948). 308. Id. at 81. 309. Charles E. Lindblom, The Policy-making Process (Englewood Cliffs, N.J.: Prentice-Hall, 1968). 1070 AMERICANBAR FOUNDATION RESEARCH JOURNAL 1982:989 quentialform of the model of legal mobilizationreflects a generaldirec- tion and does not imply the necessaryexhaustion of any action before ini- tiating another. As is made clear in the discussion, alternativeactions may be pursuedsimultaneously, and options appearingearly in the model may in practice be returnedto after "later" options are pursued and found wanting. The model of legal mobilizationpresented here is not, nor was it intended to be, a formal mathematicalmodel. Rather it is an analytic frameworkmeant to clarify the legal process as it operates. The model furthersuggests that any effort to fully understandthe impact of the law must take into considerationthe incentivesand costs of mobilizingthe law by those who would benefit from it. A legal systemdependent upon the participationof privatecitizens suggests a broadeningof researchfocus beyond the roles and discretionof official actors. At the same time it must be acknowledgedthat effective participationrequires skills and resourcesthat are unevenlydistributed. The task here has been to learn more about what influencesthat participation by identifyingthe variablesthat affect (whetherfacilitating or limiting) mobilizationof the law. As Selznickhas observed,"the passivityof governmentdefined its programs as potentials to be developed rather than as benefits to be received.""31The actualreceipt of the benefitsallo- cated by law are in part dependentupon citizens' action. Mayhewis surelycorrect in concludingthat "the cases that come to the attention of the legal profession constitute a small portion of the problems and conceivable claims that might merit legal advice and protection."311Further, it is equallytrue that the organizationof the legal profession influencesthe distributionof the cases that are actuallybrought to lawyers.What is less clear is how that influencecompares with and in- teracts with that of numerousother factors. I have attemptedto elucidatejust how complex the process of legal mobilizationis. That empiricalcomplexity has been analyticallyclarified by the organizationof relevant variablesinto a decision-makingmodel that focuses on the individualactor and the factors weighed in deciding whetherand how to proceedin mobilizingthe law. The benefit of such a model is not only clarificationof the legal process and the organization of a potentialresearch effort, althoughthose would be sufficientto justify the inquiry.There is furtherthe point to be made that whetherthe decision-makingperspective is viewed as analyticallypreferable, the fact is

310. Selznick, supra note 31, at 229 (emphasis in original). 311. Mayhew, supra note 13, at 426. No. 4 FRAMEWORKFOR ANALYSIS OF LEGALMOBILIZATION 1071 that much of the law is implementedby the decisionsof individualbene- ficiariesto mobilize it on their own behalf and that any effort to understand the impact of the law or the implementationprocess must take cognizanceof this reality. Given the structureof the Americanlegal system, and its relianceon self-interestedactors using the law as a resource, the failureto considerthe variablesthat influencethose actors as decision makerswill unnecessarilylimit and skew any effort to understandand/or affect the outcomes of the legal process.