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 up- on the individualactor to personallyevaluate the burdensand benefits of in- voking 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 deci- sion making rather than access, and on invoking the law rather than com- pliance with it. Drawingon the literatureand availableempirical evidence, the author attemptsto analyticallyclarify the complexprocess of legal mobiliza- tion 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 partic- ular 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. © 1982 American Bar Foundation 989 990 AMERICANBAR FOUNDATION RESEARCH JOURNAL 1982:989 The conceptualframework within which the access-to-justiceapproach has been articulatedrests on legal needs and those factors, most particu- larly the cost of legal servicesand complexitiesof formal justice, that in- hibit meeting those needs. A conceptualframework is of course impor- tant 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 per- ceived 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,willing- ness 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 de- mands in a legal system structuredin an entrepreneurialmode are de- pendent 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 administra- tion 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 observ- able 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 relation- ship to and use of the law fails to attributerationality to the poor them- selves and diminishesthe importanceof their self-initiativein using the law on their own behalf. By promotinguse of lawyers'services this per- spective implicitlyencourages increased dependence of the poor on pro- fessionals.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,