Lawrence M. Friedman

A Tale of Two Courts: Litigation in Alameda and San Benito Counties

American scholarship has lavished most of its attention on appellate courts, paying little attention to courts on the bottom rungs of the ladder. This is true of studies of both past and present courts.1 But the trial court is the court with the most direct contact with the man in the street, for both civil and criminal matters. Here he meets the law face-to-face. And, although federal courts are certainly important, state trial courts handle by far the larger volume of work. This paper reports on a study of the civil load of two trial courts in California between 1890 and 1970. One court sits in an urban county, the other in a rural county. We tried to measure how the work of these courts changed over time. We expected to find that trial courts have come to do less and less work in settling disputes and that most of their labor is now routine, administrative, cut-and-dried. This hypothesis was confirmed. We also expected to find major differences between the rural and the urban court. But here, it turned out, we were surprised. A common fate overtook both courts; and essentially, our data tell a single story, which holds for city and country alike.

Who Sues for Divorce? From Fault through Fiction to Freedom

IF, in a society, men and women had complete equality, in law and in fact, and if divorce were cheap, easy to get, carried no stigma, and had no adverse legal consequences, we would expect little or no difference in the number of husbands and wives who filed for divorce. In fact, in this imaginary society it would make no difference who actually filed; the law might even allow joint filing. It hardly needs to be said that this imaginary kingdom is not the United States. In America, men and women occupy different social roles. Divorce costs money-considerable money. The laws of the various states make divorce more or less time-consuming and inconvenient. The Catholic Church forbids divorce; divorce carries something of a stigma in many strata and among many groups; and the outcome of a divorce case has definite consequences for property settlement, child custody, and, in some places, the right to remarry. For a number of reasons, some of them rather obvious, it has been the general custom that the wife, not the husband, sues for divorce. But this was not always the case in all states; and we may be entering a period in which the pattern is changing. The answer to the question, who sues for divorce, is an indicator of some sensitivity, reflecting attitudes about the use of courts in family matters. This, therefore, is a study in legal culture, focussing on historical changes in the proportion of divorce proceedings initiated by either sex. Before we proceed, it is important to state the limitations of the study. It does not, and cannot, deal with family life as such. It cannot measure adultery, desertion, unhappy marriages, family instability. These factors, of course, affect the divorce rate, and also the question of who sues for divorce. But the relationship is subtle and murky, and it would be foolish to leap from divorce statistics to conclusions about family life and family stability. This is most obvious for a country like Paraguay, which does not allow divorce at all, or South Carolina, which allowed no divorce in the 19th century. Obviously not every couple in Paraguay is happily married; but there is no divorce. Divorce has been common in the West for less than two centuries. Probably the prevailing view among elites during this period has

Private lives : families, individuals, and the law

Drawing on many revealing and sometimes colorful court cases of the past two centuries, Private Lives offers a lively short history of the complexities of family law and family life--including the tensions between the laws on the books and contemporary arrangements for marriage, divorce, adoption, and child rearing.

More Civil Wrongs: Personal Injury Litigation, 1901-1910

This article presents empirical data concerning trial-court, tort litigation in Alameda County, California from 1901-1910. The data analyze the entire universe of trial-court litigation during this decade and are NOT a sample.

A Search for Seizure: Pennsylvania Coal Co. v. Mahon in Context

No term of the United States Supreme Court, in this century, has gone by without significant or dramatic cases. October Term, 1922 was no exception. The court was in transition. A new Chief Justice, William Howard Taft, had taken office in 1921; three justices retired in 1922. Late in the term, the court decided Adkins v. Childrens Hospital . This was one of the cases which earned the Court a reputation for dark reaction; the Court voided a law which allowed the District of Columbia to fix minimum wages for women and children. In October Term, the Court also had one of its rare encounters with the constitutional aspects of eminent domain. The case was Pennsylvania Coal Co. v. Mahon . Oliver Wendell Holmes, Jr., wrote the opinion. This case too disappointed the left, and gave comfort to conservative interests.

State Constitutions in Historical Perspective

Scholars have tended to neglect the history of state constitutions, though these are interesting in themselves and also shed light on federal developments. State constitutions have tended, on the whole, to be less durable and to contain more superlegislation than the U.S. Constitution. Early state constitutions provided for a weak executive. In the nineteenth century, states began to restrict legislatures as well. Recent state constitution making has tended to be technocratic, less overtly political than in the nineteenth century, although the use of initiative and referendum processes is a somewhat contradictory trend. Judicial review in state courts developed along lines generally parallel to those in federal courts. Judicial review flowered after the Civil War; in this period, many innovative doctrines first arose in state courts. The center of innovation shifted to the federal courts in the twentieth century. Judicial review continued and grew in state courts, however, and the recent expansion of the doctrine of independent state grounds may increase the power and significance of state courts.

Big Law Today and Tomorrow

This chapter discusses the different meanings of Big Law in relation to the external forces that affect the operation of the legal profession. The first meaning refers to the large size of the firms as professional organizations of lawyers; the second meaning of Big Law refers to the rules, regulations and laws; to the astonishing increase in the sheer volume of law: the cases, statutes, decrees, ordinances, rules, and regulations, in every modern society. In its third meaning, law is also “big” in the sense that it touches the lives of more and more people, perhaps everybody in society. The chapter suggests that Big Law in sense two and sense three have a long history; they may be, in a way, centuries old. But Big Law two and Big Law three have exploded in the modern period.

What Is a Legal System

The Australian legal system developed from the legal system of Britain, which was brought to Australia as part of the process of Britain setting up a colony in Australia, beginning in the 1770s. Between 1855 and 1890 the British Parliament granted a limited right to set up a local system of government to each of the British colonies within Australia, usually referred to as granting ‘responsible government’. As each of the colonies was granted this right it was able to develop its own laws and legal systems to deal with its particular situation. So, the law and legal system in each of the colonies began to develop separately.

Media Representations of the Inter-American System of Human Rights

In contemporary society, the media have a powerful influence on the legitimacy of governmental institutions, including courts. This pilot study presents original data on newspaper coverage of the Inter-American System in several Latin American countries. The analysis shows that, in general, newspapers in Latin America pay little or no attention to the work of the system, except when a case involving the particular country is involved; and even then, coverage is sparse, and sometimes shows a certain amount of confusion. The failure of media coverage is surely a factor which helps to produce the general obscurity in which the Inter-American System labours. This obscurity is in stark contrast to media coverage of key courts in other countries and regions.

Law: Change and Evolution

This article focuses first on macroevolutionary change, looking at theories of long-term legal change involving whole systems, groups of systems, or law in general. Theorists discussed include Marx, Maine, Durkheim, Weber, Schwartz and Miller, Galanter, Selznick, and Watson. The second part is concerned with more general theories of legal change. It discusses the ‘autonomy’ of the legal system, typologies of legal change, the need to distinguish long-run change from short-run change, the differences made by democratic and totalitarian tendencies in society, and the role played by the legal system in social change.