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Published by Jacobin Parcelle
Encyclopedia Series OF Conflict, War, and Peace : Litigation
Encyclopedia Series OF Conflict, War, and Peace : Litigation

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Published by: Jacobin Parcelle on Feb 17, 2009
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1. Definition
Litigation is a highly structured process of disputeresolution that invokes the power of the state, or acontractually agreed to private decision maker, toprovideameanstoauthoritativelyadjudicateadisputebetween two or more parties. In many countries in alarge proportion of disputes or cases involving liti-gation, the parties reach resolutions without com-pleting the full litigation process, either by voluntarysettlement, abandonment by one party, or someintermediate authoritative decision that short circuitsthefullprocess.Unlessthereis somelegalrequirementthat the adjudication process be invoked, there istypically an even larger set of disputes that never enterinto the formal litigation process but which areresolved with the knowledge that the process could beinvoked. Most cases of litigation involve disputesamong private parties, either individuals or organiz-ations (businesses, corporations, etc.). Some casesinvolve the government as a party to the dispute, and,especially in federal systems, the parties on both sidesof a case can be governmental entities.Adjudication involves three key elements: (a) auth-oritative resolution of a dispute, (b) by a neutral thirdparty, and (c) through the application of pre-existingnorms or rules. While the courts customarily areassociated with adjudication, there is nothing thatlimits adjudicatory dispute resolution to courts orother governmental bodies; private adjudication sys-tems are common in many countries and trans-nationally. Also, while the pre-existing norms or rulesmost often associated with adjudication comprisewhat is normally called ‘law,’ there is nothing thatprecludes adjudication relying upon any agreed uponset of norms or rules, including those derived fromcustom or religious texts.Litigationisaparticularformofadjudicationthatisbased on a set of formalized procedures. Formaliz-ation is a matter of degree. There are forms of adjudicate dispute resolution that dispense with mostaspects of formalized process; examples include smallclaims courts, qadi courts, or other kinds of com-munity-based courts. On the formality continuum,there is no bright line separating what is appropriatelylabeled litigation and what is not.When a governmental entity serves as the adjudi-cator and oversees the litigation process, it is mostoften a court. In some governmental systems, thecourts are formally independent of the other branchesof government, while in other systems the courts aremore integrated into the executive. Even in systemswhere the courts are independent of the executive,there are often specialized adjudicatory forums withinthe executive, possessing varying degrees of inde-pendence. What is labeleda ‘court’ inone system, maybe labeled a ‘tribunal’ or a ‘commission’ in another.For example, in Germany, there is a system of ‘laborcourts’ to handle litigation involving many types of disputes arising from the workplace; in Britain someof the cases that would go to labor courts in Germanygo to ‘Industrial Tribunals’ and in the United Statesthe forum is called a Labor Relations or EmploymentRelations ‘Commission’ or Workers’ CompensationBoard. Even within a single country, one finds entitieslabeledas ‘courts’ (the US Tax Court) or as somethingelse (‘Tax Appeals Commission’) where both are8989
involved in similar adjudicatory activities. Thus, whilethe ‘court’ label is usually linked to litigation, thatneed not be the case.For a dispute-resolution process to be a form of litigationitonlyrequiresthatthemethodofresolutionbe adjudication as defined above and that there is aformalized, structured process governing the forum’sactivities. Litigation involves a wide range of issues,and the cases range from the most routine, mundanedisputes, to mega-disputes involving large numbers of people or huge sums of money, or both. Because of this range, generalizations are difficult, and it is best tothinkintermsofmultipleworldsoflitigationreflectingdiffering scales of activities and issues.
2. Theoretical Issues in Understanding Litigation
The highly structured nature of litigation derives forma combination of rights, procedures, and incentives.Each of these elements influences who uses litigation,when they choose to use it, and the specific nature of the litigation process.
2.1 Rights
Rights refer first of all to who is granted access to themechanism of litigation. In the United States andCanada there are complex rules governing who has‘standing’ to bring an action in (federal) court, andunder what circumstances they may bring that action;under the US Constitution, the jurisdiction of federalcourts is limited to ‘cases and controversies,’ and onlythose who are in fact affected by the case or contro-versy may bring an action. In other countries (e.g.,Israel or Germany) many kinds of actions can bebrought by persons who have only a tangentialconnection to harm or the issue in dispute. In stillother countries litigation is used regularly as a meansof obtaining advisory opinions from judicial bodies,and there need not be any immediate case or contro-versy in the American sense.The legal rules and norms within a country or jurisdiction control the kinds of substantive issuessubject to litigation. For example, in England tenantsoften have what amount to a property interest in theirtenancy; this can lead to costly disputes and litigationover whether or not a property owner can obtain theuse of property held under such a tenancy. In theUnited States there are very detailed protectionsafforded certain categories of employees, and there issignificant litigation over those protections; in Eng-land there are many fewer specific protections, but amore general limitation on an employer’s ability todischarge employees without just cause.In addition to whether or not there are issues thatare subject to litigation, the question of whether thereareavenuesofredressotherthanlitigationisextremelyimportant. In England, consumers may bring claimsfor defective goods, but they may also turn toauthorities to enforce criminallaws vis-a-vis the dutiesof sellers of consumer goods (i.e., consumer pro-tection can be dealt with under criminal as well asthrough civil litigation).Despite substantialsocial andcultural similarities, litigation over torts arising fromauto accidents is lower in the Netherlands than inneighboring areas of Germany in part because in-surance companies in the Netherlands have insti-tutionalized mechanisms for resolving claims withoutlitigation.The remedies available also have a great deal to dowithwhetherornotlitigationisinvoked.IntheUnitedStates, mass disasters such as fires, airplane crashes,and the like typically result in litigation becauseAmerican law provides substantial remedies to thevictims of such events. In contrast where remedies areseverely limited, litigation is less likely. For example,in1987,anEnglish cross-channelferrycapsizedduetocrewnegligenceresultinginalmost200deaths;Englishlaw strictly limited damages, and the ferry companyand its insurers quickly resolved the victims’ claims. Asecond example of the impact of available remediesinvolves persons in the United States claiming jobdiscrimination on some basis other than race. Untiltheearly1990scivilrightslawslimitedremediestolostwages and
or reinstatement; this typically made liti-gation an unattractive option. In 1991 legislation waspassed permitting punitive damages in intentionaldiscriminationcasesmaking redressthrough litigationmore feasible.
2.2 Procedures
A set of rules of procedure govern litigation, whetherin a court, an administrative tribunal, or a privatesetting. These rules determine the form by whichlitigants initiate claims, provide for mechanisms toinform and establish jurisdiction of defendants
respondents, set procedures for gathering the infor-mation necessary for the adjudicator to reach adecision, and establish decision-making rules (stand-ards of proof, who makes the decision, etc.). Pro-cedural rules also determine the availability of ag-gregation procedures (e.g., class actions), who bearsthe burdens of the cost of litigation (i.e., fee shifting),and who actually serves as the adjudicator of issues of fact and issues of law (professional judges, lay juries,some mixed form). Specific rules may be set by theforum, by the parties, or by some combination of thetwo, depending upon the structure of the forum.While there are many variations in specific rules,there are two very broad approaches to litigationwhich are associated with the two dominant legaltraditions: common law systems and civil law systems.The former is built on a model of party adversity, withthe adjudicator playing an umpirial role; the parties8990
andtheiragentsprimarilycontroltheflowandprocessof litigation, with the adjudicator receiving what isoffered and forming a decision based on what thepartiespresent.The latteris builton amodel variouslydescribedas‘inquisitorialor‘investigatory,’wheretheprimary responsibility for determining and requestinginformation lies with the adjudicator. Under thecommon law system, the formal adjudication tends tobe concentrated around an event called a trial whenthe two sides bring in their evidence and witnesses forpresentation to the adjudicator. Under the civil lawsystem, the formal proceedings are more episodic withthe adjudicator determining what additional evidencehe or she would like to see based on what transpires ata particular session. A second major difference be-tween the two traditions is the relative balance placedon oral vs. written processes, with common lawprocedures involving a heavier oral component whilecivil law countries emphasizing written materials.Developments in recent years have moved the twosystems closer together, with more effort in civilsystems to reduce the episodic nature of adjudicationprocedures and reduce the burden or producingwritten materials, while common law systems havemoved toward increased reliance on written materials.The specific rules create a vehicle for analyses of litigation by social scientists. These analyses may beprocess-based, building on the flow of litigation; oneapproach models litigation as a series of stages andtransitions, with litigation progressing from the initialharm through the initiation of a dispute into theformal litigation process culminating in a trail andpossibly and appeal. Other analyses rely on tools suchas game theory and economic modeling. These latteranalyses provide predictions of relative advantagesand disadvantages created by the rules, and providemodels of how the parties and their agents shouldbehave under assumptions of economic rationalityand uncertainty.
2.3 Incent
Litigation frequently has significant financial impli-cations, in terms of the costs of litigation and
or theresulting remedies. The result is a set of incentiveswhich serve to structure the decision-making of theparties and their agents. The first incentive is thelikelihood of success, both interms of ‘winning’ and interms of obtaining the desired redress; those who mustbear the cost of litigation are sensitive to whether ornot the litigation will succeed. The second incentive isthe size of potential remedies, which is a function of the severity of the alleged harm, the law or rulesgoverning the awarding of remedies, and possibly thenature of the adjudicator of the remedy: professional,lay, single, or group, expert, or nonexpert. The thirdincentive is the costs associated with litigation: insti-tutional fees, costs of representation, and expenses forinvestigation, experts, etc. The fourth incentive is thenature of the payment system for legal representation:
either on a percentage
commission or someother basis, or
third party payment
such as legal aid,legalinsurance,orsomeothertypeofgroupassistance;closely related to payment system is whether or notthere is a system of partial or full fee shifting (‘loserpays’), and how the level of attorneys’s fees is set(relation to size of case, outcome, amount of pro-cessing involved).As with procedure generally, incentive structureslend themselves to economic analyses. Extensive for-mal analyses have been made of rules governing costallocation and their expected impacts on decisions tolitigate, decisions to go to trial or to settle, thelikelihood of frivolous litigation, and the role of attorneys. In addition, to theoretical analyses, pro-ceduralrulesandtheresultingincentiveshavebeenthesubjectofextensiveempiricalanalyses,mostheavilyinthe United States, but also in England.
2.4 The Role of Uncertainty
One of the central features of litigation is uncertainty,and the decisions of actors in the litigation systemmust be made in light of this uncertainty. Both thedegree and source of uncertainty vary depending onrules, the substance of the case, and the generalstructure of the system. Key elements of uncertaintyinclude: which side will the adjudicator favor, the sizeor nature of the remedy that the adjudicator willaward, the length of time the litigation process willtake, and the costs that will be incurred. Part of theuncertainty reflects the strategic nature of all conflict,and part of it reflects the introduction of a third partyneutral decision-maker, combined with formalizedprocedures for influencing that decision-maker. Un-certainty creates risk, and the parties involving inlitigation differ significantly in their ability and will-ingness to bear the burdens created by risk.
3. Empirical Results Concerning Litigation
Themostextensiveempiricalresearchonlitigationhasbeen carried out in the United States, although thereare also bodies of empirical litigation focusing onlitigation from other common law countries, manyEuropeancivillawcountries,andcountriesfromotherregions of the world (Japan, India, the Phillippines,etc.).
3.1 The Likelihood that Disputants will Turn toLitigation
Research from a variety of countries consistently hasshown that relatively small proportions of mostdisputes eventually invoke formal litigation pro-8991

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