William L. F. Felstiner

The Emergence and Transformation of Disputes: Naming, Blaming, Claiming . . .

The emergence and transformation of disputes, especially before they enter formal legal institutions, is a neglected topic in the sociology of law. We provide a framework for studying the processes by which unperceived injurious experiences are-or are not-perceived (naming), do or do not become grievances (blaming) and ultimately disputes (claiming), as well as for subsequent transformations. We view each of these stages as subjective, unstable, reactive, complicated, and incomplete. We postulate that transformations between them are caused by, and have consequences for, the parties, their attributions of responsibility, the scope of conflict, the mechanism chosen, the objectives sought, the prevailing ideology, reference groups, representatives and officials, and dispute institutions. We believe the study of transformations is important. Formal litigation and even disputing within unofficial fora account for a tiny fraction of the antecedent events that could mature into disputes. Moreover, what happens at earlier stages determines both the quantity and the contents of the caseload of formal and informal legal institutions. Transformation studies spotlight the issue of conflict levels in American society and permit exploration of the question of whether these levels are too low.

Avoidance as Dispute Processing: An Elaboration

I have suggested (1974) that in societies such as the United States, where non-governmental institutionalized mediation and adjudication of interpersonal disputes are infrequent, some of the slack may be absorbed by avoidance. I implied that avoidance would generally have lower costs in the United States than in societies where such mediation and adjudication are widely available. Danzig and Lowy (1975: 676-682) argue that r have underestimated the costs of avoidance in the United States. They may be right. In any event, avoidance can be analyzed more precisely than it was in my original paper (see 1974: 70, 76, 79-80, 83-84). This response will try to provide such an analysis, including a more complete breakdown of avoidance costs. It will suggest why I appraise avoidance costs differently than do Danzig and Lowy. It will also re-evaluate some of the variance in avoidance costs between different societies. Finally, it will discuss avoidance and Danzig and Lowys proposed neighborhood mediation. Conventionally we have thought of people reacting to disputes through negotiation, self-help, mediation, adjudication, feuds and appeals to the supernatural. These are the categories employed in the classic descriptions provided by legal anthropology. We know from experience that there are other reactions. After disputing for a time, one may choose to ignore the dispute entirely, thus, in a sense, resolving it. We may also sell our share in a dispute. And we may resort to avoidance. The notion of avoidance is that a party may change his behavior on account of the dispute in such a way that his relationship with the other disputant is, at least temporarily, shrunk or terminated. The dispute, although not settled, is thus no longer a matter which the disputant believes he ought to do something about. Avoidance as dispute processing is different from avoidance behavior adopted to prevent disputes from arising in the first instance (see Skinner, 1961: 60), a distinction which a few of my earlier examples failed to make clearly (1974: 76). The costs of dispute processing by avoidance may be analyzed in terms of disturbances in social relations which are accom-

PLEA CONTRACTS IN WEST GERMANY

Criminal justice systems in industrialized societies do not give the same consideration to all cases. Prosecutions may involve major transgressions of social order and may threaten serious consequences to the accused. They require a deliberate procedure that forces the state to demonstrate its allegations publicly pursuant to a set of rules whose rationale is protection against error, or at least that the accused be offered such a procedure. Where the alleged illegal behavior is less threatening, and the consequences of conviction less serious, neither the state nor the accused may wish to spend the time and resources required by the deliberate procedure or have any interest in exposing to public scrutiny the procedure they do employ. A process designed to ensure a fair trial in a homicide case may be slower and more rigorous than prosecutor, accused, or public consider warranted in a shoplifting case. Thus, the bulk of routine cases in industrialized societies is processed by some abbreviated treatment: prosecutorial fines in Scandinavia (Felstiner and Drew, 1978:8-10), guilty pleas in Anglo-American jurisdictions, and penal orders in several central European countries. This paper describes the West German version of the penal order. It explores the degree to which its use has avoided some of the negative practices allegedly inherent in plea bargaining in the United States namely, overcharging defendants, penalizing defendants who insist on going to trial, and manipulating jail time to persuade defendants to plead guilty. In conclusion, the paper distinguishes the

Legal Realism in Lawyer-Client Communication

Legal materials have often been used to examine issues of general interest in the analysis of language and language use. Traditionally the study of law and language has concentrated on statutes, formal decisions, legal instruments, or documents used in legal procedures (see Rodell, 1939; Christie, 1964; Mellinkoff, 1963; Brigham, 1978). Particular attention has been given to questions of whether legal language is distinct from other language forms (Stone, 1981) and whether legal language can, and should, be simplified and thus made more accessible to non-lawyers (see Arnold, 1935:66).

Lawyers and Power: Reproduction and Resistance in the Legal Profession@@@Managing Legal Uncertainty: Elite Lawyers in the New Deal@@@Gender and Practice: A Study of Lawyers' Lives@@@Divorce Lawyers and Their Clients: Power and Meaning in the Legal Process

Based on over 100 lawyer-client conferences this book charts the complicated and shifting relationships between lawyers and clients as they work out the strategy and tactics of divorce. As observers, Felstiner and Sarat were present when lawyers and clients confronted the full range of issues that occur during a divorce. This book examines the relationship between lawyer and client, the nature of the marriage and why marriages fail, the nature of the legal process, and the best way to resolve divorce.