This essay attempts to discern some of the general features of a legal system like the American by drawing on (and rearranging) commonplaces and less than systematic gleanings from the literature. The speculative and tentative nature of the assertions here will be apparent and is acknowledged here wholesale to spare myself and the reader repeated disclaimers.

I would like to try to put forward some conjectures about the way in which the basic architecture of the legal system creates and limits the possibilities of using the system ;as a means of redistributive (that is, systemically equalizing) change. Our question, specifically, is, under what conditions can Iitigation be redistributive, taking litigation in the broadest sense of the presentation of claims to be decided by courts (or court-like agencies) and the whole penumbra of threats, feints, and so forth, surrounding such presentation.

The last two centuries have witnessed a worldwide movement toward centralized, bureaucratic, professionally-staffed legal systems, sponsored by and closely allied with nation-states. One concomitant of these developments has been the emergence (or growth) of bodies of independent professionals whose members mediate between these systems and the populations they regulate. Thus the “expropriation” of the making and application of law into a purely governmental function has been accompanied by the growth of a corresponding “private sector”—the lawyers. The intimate involvement of lawyers in the emergence of modern nations has been recognized, but there has been little systematic comparative study of them. This issue contains a series of studies of one of the largest of these professional groups—Indian lawyers. These studies were prepared for a Conference on the Comparative Study of the Legal Profession with Special Reference to India, sponsored by the Committee on Southern Asia Studies of the University of Chicago, held at the Moraine-on-the-Lake Hotel in Highland Park, Illinois from August 10-12, 1967.

This paper visualizes legal services as one of various alternative paths to delivering legality (i.e., the benefits which access to law confers upon actors). It challenges the assumption that deficiencies in access to law can be most effectively remedied by providing the services of lawyers. It suggests that in some cases there are excessive costs of delivering legality through the medium of legal services and that in other cases legal services are insufficient without some admixture of other factors. Among the alternatives considered are (a) modification of rules systems (e.g., no-fault schemes, simplified transactions); (b) modification of institutions for applying rules (e.g., departures from the court model by making institutions simple, mediative, proactive, private, etc.); (c) enhancement of the capabilities of the parties (personal competence, organizational capacity to utilize legal services, etc.). It is argued that lack of capability of parties poses the most fundamental barrier to access and that upgrading of party capability holds the greatest promise for promoting access to legality. Evidence is adduced for the proposition that organizational structure is a key factor in determining the ability of parties to utilize the legal system. Alternative ways in which various interests can attain the benefits of organization are considered. Finally, research possibilities associated with these themes are sketched.

In my contribution to the first part of this collection I suggested that the character and impact of litigation might be best understood if, rather than starting from consideration of rules or of institutional processes, we began by looking at the parties and their relation to dispute institutions. I introduced a simple distinction between those actors in society who have many occasions to utilize the courts (in the broad sense) to make (or defend) claims and those parties who do so only rarely. Parties who have only occasional recourse to the courts I called one-shotters (henceforth, OS) and parties engaged in a large number of similar litigations over time repeat-players (RPs). I then argued that an RP might be expected to play the litigation game differently from an OS and that the RP would enjoy a number of advantages in the litigation process. Briefly, these advantages include: ability to structure the transaction; expertise, economies of scale, low start-up costs; informal relations with institutional incumbents; bargaining credibility; ability to adopt optimal strategies; ability to play for rules in both political forums and in litigation itself by litigation strategy and settlement policy; and ability to invest to secure penetration of favorable rules.

This article explores the way that a set of cases arising from a specific event, product, or claim form a congregation of cases that displays common features and that traces a discernable career over time. Such a career is related to, but not uniquely determined by, the course of the social activity that underlies the type of case. The relation of activity and case congregation is mediated by a complex structure of disputing activity (including norms, cognitive dispositions, institutions of access, stakes and resources, social support, legal services, and more). In addition to these external influences, such litigation itself influences its future course by various effects on the underlying activity, on the organization of disputing about it, and on the legal setting. Such endogenous effects include holistic effects associated with the size and distribution of the congregation and career effects associated with the way that the congregation unfolds over time. Delineation of these various effects suggests that litigation lives “a life of its own,” partly independent of underlying events in the outside world, but that the regularities in the litigation process are not reducible to a comprehensive pattern since the activity is interactive and strategic.

During the twenty years since the founding of the Law and Society Association, a distinctive “law and society” discourse has emerged and been institutionalized in a multidisciplinary scholarly community, which has been instrumental in producing a tremendous increase in systematic knowledge about the law in action. The growth of law and society research has accompanied other changes in the distribution of information about the legal process, including a new legal journalism and greater media coverage that make the law in action more visible to a wider audience. Current distress of legal elites about the hypertrophy of legal institutions is viewed as a reaction to the increased currency of information that discredits the received picture of the legal world. The coincidence of structural changes in law with changes in the social institutions of knowledge about law creates the possibility of a more responsive and inquiring legal process.

The “Haves” paper was written in a different age. Its core was composed in the fall of 1970 when I was a fellow at the Yale Law School's remarkably fruitful soft-money Program in Law and Modernization. This was before the ascent of law and economics, before the emergence of critical legal studies and its progeny, before the promotion of alternative dispute resolution, before the arrival of the new legal journalism and the informational opening of legal world in 1979. The Law and Society Association, founded in 1964, was largely a support group dedicated to publishing the Law & Society Review (then in volume 5) and had not yet held a national meeting.