The preparation of this paper was assisted by support from the Research Committee of the University of Wisconsin Graduate School and by the University of Wisconsin Law School's Institute for Legal Studies, under a grant from the William and Flora Hewlett Foundation. I would like to thank Frank Munger for his extremely valuable comments on earlier drafts of this paper.
The debate over the existence or nonexistence of the "litigious American" continues (Manning, 1977; Galanter, 1983, 1986; Marvell, 1987). Americans are variously described as more litigious, or no more litigious, than Americans of earlier periods (see particularly Friedman, 1985), or of their contemporaries in other countries. Yet, while the debate has ranged over these kinds of broad generalizations, a small group of scholars have begun to suggest that it is important to move in the direction of more specific statements about more specific groups within the large, diverse American society.(1)
These studies are exemplified by the work of Greenhouse (1986) in a Baptist community in "Hopewell", Georgia, and Engel (1980; 1984) in "Sander" County, Illinois. The argument developed by both scholars is that "their" communities represent informative deviant cases from the American norm. Greenhouse argues that the particular historical antecedents of the Hopewell community lead to strong culturally derived norms that suppress potential con-flicts (and hence disputes) from whatever sources they might spring. Engel suggests that the setting of the traditional agricultural community in Sander County created a culture of self-reliance vis-a-vis physical well-being and a culture of fair-dealing vis-a-vis business relationships; the result, Engel argues, is that members of the community are reluctant to seek compensation for injuries (regardless of whether or not such compensation might be legally available), but have a very different approach to problems arising from contractual relationships.
Given that both Engel and Greenhouse are anthropologists, it is not surprising that both studies draw heavily on the concept of culture as a mode of explanation. Their argument is that it is unique aspects of local culture that explain the deviant nature of local disputing practices. However, one must ask whether it is the theoretical idea of the unique nature of local culture, or the methodological fact that the studies focus on specific local communities that account for the apparent deviance from the presumed American norm.(2) Despite this possible hesitation, Engel's and Greenhouse's analyses have strong elements of face validity simply because there is something very fundamental about the notion of culture having a major influence on methods of dealing with conflict.
The purpose of the this paper is to describe a theoretical perspective on the concept of culture that can advance the analysis of disputing environments, with a particular focus on decisions to make use of the legal system and the courts. The perspective I describe is derived from interpretive anthropology, hermeneutics, symbolic interaction, and semiotics, though I specifically use a concept of political culture. I use this notion rather than a more general, unmodified concept of culture to delimit the range of phenomena that I am addressing (though there is no inherent reason that major parts of my argument could not be used more generally). Also, I start from the idea of political culture rather than the more specific idea of legal culture because I am concerned with the linkages to the institutions of the law which I view as inherently a part of the larger political system; in this sense, the analysis that I develop is a part of the larger movement toward a renewed interest in analyses of institutions and the state (see Evans, Ruseschemeyer, Skocpol, 1985).(3)
The balance of the paper is divided into two main sections. In the first, I explicate and develop what I mean by political culture. I do this by very briefly describing the political culture concept as it has be used by political scientists over the last three decades, and then turning to a theoretical discussion drawing upon several interpretive traditions. The second section presents three applications of the concept, all of which involve a critique or reinterpretation of existing work; two of the examples draw upon comparisons between the United States and England in which I include discussions of some of my own field work. The examples vary in the degree to which they directly apply the framework I advance. And, while the "propensity to sue" issue does tie together the discussion, I have not attempted here to present the separate analyses as leading toward a single analytic conclusion; rather, I have used the examples as a means of suggesting the potential utility of the theoretical framework.
I have added the modifier "political" to my use of the term culture because my interest is in the use, or nonuse, of law, whether through the courts or not, to deal with disputes. Given that law is derived from a political process, and that the courts are an explicit component of governmental systems, the political component becomes a central aspect of the disputing process. In choosing this starting point, I make the assumption that use of the law and use of the courts needs to be considered in the same way as the use of other political institutions.(4) With this assumption, the tradition of research drawing upon the concept of political culture becomes directly relevant.
Political culture as an analytic concept came into prominence when it was used as the basis of Almond and Verba's seminal five nation study, The Civic Culture (1963; see also, Almond, 1956). One of the commonly cited definitions of political culture is derived from Almond's early work (Almond and Powell, 1966: 50):
Political culture is the pattern of individual attitudes and orientations toward politics among members of a political realm which underlies and gives meaning to political actions [emphasis added].
Drawing upon this general framework, Elazar has suggested three manifestations of political culture:
Evidence from the United States suggests that the law and the courts stand apart from other governmental/political institutions (see Sarat, 1977; Kritzer, 1979; Grossman et al., 1982: 114; but see Gibson, 1986: 152-153). This means that rather than there being a single core symbol, politics, in American political cultures, there are three symbols: politics, government, and law. It is the inclusion of the third of these symbols that makes explicit the linkage between political culture and disputing attitudes and behavior.
Thus, political culture is comprised of at least three distinct dimensions: the role of politics, the role of government, and the role of the legal system. The result is that there are three core symbols in political culture. This does not mean that the courts and the legal system are different from government and politics more generally; in fact, I am positing that the legal system is fundamentally similar to the other components of the political system -- it is the perception of the legal system that differs, and consequently the legal dimension must be added to the political and governmental dimensions to capture the unique position of the courts and the legal system within the larger political culture.(5)
My basic thesis is that there are fundamental differences in how "communities", even communities within the same or broadly similar socio-political systems, perceive the role of the legal system, not only in terms of the role of the courts in the political process but also as to the appropriate use of the law and courts to order private relationships. These differences in perceptions will affect both the frequency of and the manner in which citizens mobilize the courts and the legal process to deal with their day to day problems and disputes.
In some ways, "culture" is a suspect analytic concept. This is because there has been a tendency to use it as a residual explanation, particularly for variations that cannot otherwise be accounted for;(6) this frequently results in "culture" being seen as a weak construct. This problem can be avoided by approaching culture in a theoretical fashion. In developing a systematic framework for analyzing the role of (political) culture in accounting for behavior, one must first explicate the linkage mechanisms between culture and behavior. Since my specific interest is in dispute-related behavior, I will examine the ways in which something called culture may be associated with citizens' decisions whether to invoke the authority of the legal system to deal with day to day problems.(7)
There are many approaches that one might take to answering the linkage question. One might start by thinking of cultural patterns as a society's model of itself; that is, it is an effort by the members of the community to define the primary dimensions of relationships, among individuals and between individuals and institutions. Thinking of culture in this way, one can distinguish between "models" of social relationships and "models" of action implied by those social relationships (cf. Merry, 1985: 63). Thus culture becomes synonymous with "norms" which serve as a set of predispositions for action, in that people will tend to try to live up to the "models" of action that they have internalized, though there will be situations in which people will not be able to live up to these norms.(8)
A second conceptualization of culture posits a less direct linkage. Rather than creating norms that give rise to a set of predispositions for action, the culture creates a set of predispositions for interpretation.(9) This approach sees court utilization, and political action generally, as a response to a set of "symbols" which embody the political culture, and thereby shape (as opposed to determine) public behavior of citizens and officials.(10)
The construction of these symbols is a cultural process best understood using the terminology of semiotics (Saussure, 1915). Semiotics focuses on the structure of communication, in which meanings are produced by the union of units (such as words) labeled "signifiers" with what might crudely be described as definitions labeled "signifieds." The resulting "signs" convey meanings to and from users of the language.(11) The key notion that I want to tap here is that of the union of some object (whether that be a word, an institution, a political figure, a flag, a picture, or a recognized pattern of action) with a set of ideas or images to form a symbol or sign that itself evokes a response based upon the ideas or images with which it has become associated.
The union of signifier and signified to produce signs goes on at multiple levels, where the sign at one level becomes the signifier at a higher level. For example, Barthes (1957) examined myth as a second order semiological system with the actual language elements themselves as the first order system. In more general terms (Barthes, 1967: 89-98), one can think of the lower levels involving denotation (the explicit statement of what is) and the higher levels involving connotation (the implicit statement of what is suggested). In effect there is an upward spiral through various levels of denotative and connotative meanings. It is the particular pattern of the spiral of meanings that marks a given culture.
Thus, when moved to the realm of cultural analysis (see Eco, 1976), the signs structure the perceptions and responses of members of that culture. It is through these signs that culture shapes actions and response.(12) The function of cultural analysis is to describe and account for the particular patterns of denotation and connotation of signs,(13)
and examine the relationship between this "semiotic of culture" and actual behavior. Culture is the collective cognitive map by which the implications and consequences of actions are interpreted by members of a social unit through the union of that action (the signifier) with the likely perception of others of the action (the signified) to create a social/cultural symbol (the sign) that influences the actor's decision to engage in the action.(14)
As applied to the study of disputing behavior, this conception of culture suggests that first order analyses should focus on views of conflict (is it good or bad, natural or unnatural?), lawyers as agents of the legal system, courts as agents of conflict resolution or norm enforcement, and responsibility for ones own behavior and situation in life.(15) For example, what does it mean to go to a lawyer--does it indicate weakness, sophistication, discontent? What does it mean that one seeks legal redress for an injury--does it indicate an awareness of ones rights, or does it show that a person is trying to lay responsibility for ones life on another person? What is the image associated with a courtroom--is it a "place of justice" or a place where only "troublemakers" are found? As suggested by these examples the various images and meanings can be either positive or negative, and through these tones and shades of meaning, the legal dynamic can influence behavior. It is precisely this kind of concept of culture "as constituted by the logic of symbols and their connected meanings" that underlies Greenhouse's analysis of the Baptist community of Hopewell (1986: 34):
"people in Hopewell think the way they do about conflict because they have available to them a language and a set of images that give conflict certain (negative) meanings."
Given the explication above, how might one demonstrate the utility of the concept of political culture for empirical analysis? First, one can use culture as the basis of explanation for differences between two of more social units. If the concept is going to be used for direct explanation in this way, one must overcome the obvious challenge that any difference that might be attributed to culture as I have defined it can be explained at least as well by structural or legal variations. As with choosing among explanations generally, this challenge can be met only by carefully ruling out alternative explanations by citing appropriate evidence. While this has echoes of the problem of residualization that has haunted cultural explanations, the difference here is that one is setting out to exclude noncultural explanations, rather than turning to culture after running out of preferred explanations.
A second way of demonstrating its utility is to show how this particular conception of culture can be used to reinterpret an existing analysis to yield additional or alternative insights. For example, is it possible that in his "thick description" of Sander County, Illinois, David Engel has overlooked alternative interpretations that may "fit" his observations as well or better? Clearly, any reinterpretation of published work can be at most tentative since one would generally have access only to the published reports (e.g., Engel's two primary Sander County articles [1980, 1984]).
A third way of showing the potential of the kind of cultural explanation I am proposing is to use it to derive hypotheses to account for some specific phenomenon. As I will discuss below, this is particularly applicable to longitudinal studies of the courts, where the emphasis may be on evolution and change in culture over time.
In the sections that follow, I present examples of each of these types of applications.
As suggested in the introduction to this article, the relative propensity to sue of the American populace has continued to be the subject of public and scholarly debate. One question that frequently arises in this debate is whether or not Americans are more likely to turn to the civil justice system than are persons in other similar countries. Recently, a leading English scholar, Patrick Atiyah, has joined this debate with a thoughtful piece comparing the use of the tort system in England and the United States. Atiyah cites evidence suggesting that the volume of tort claims is significantly higher in the United States than it is in England (1987: 1004-1009). Atiyah's best evidence is based on estimates of the number of tort suits filed in the two countries; he calculates that American tort lawsuit rate is about four times that in England (ibid., p. 1010). Evidence not cited by Atiyah makes the point more strongly than does Atiyah. Based on survey research, Harris et al. (1984: 51) found that 34% of "significant" injuries(16) arising from traffic accidents led to claims, and 24% of significant work-related injuries led to claims; in contrast, analyses of data collected by the Civil Litigation Research Project in the United States indicate that 88% of Americans injured in traffic accidents claimed and 81% injured at work claimed (Kritzer, 1989: __n18).(17) These figures suggest that Americans are about three times more likely to file tort claims after being injured than are residents of England and Wales.(18)
How then might one explain the differences? Atiyah downplays the role of three factors (Atiyah, 1987: 1017-1019), one of which I would describe as a surrogate for culture:
Rather than these explanations, Atiyah argues that the primary differences between England and the United States reflect the incentives and disincentives created by (1) the relative advantages tort law creates for plaintiffs as compared to defendants and (2) the relative rewards of litigation in the two countries (i.e., the higher rewards in the United States),(19) plus (3) the availability of nonlitigious alternatives (i.e, the greater availability in England as opposed to the United States).
While I am not entirely convinced about the validity of the arguments Atiyah advances regarding the first two of the key differences he identifies,(20) let me assume them to be correct, and then ask whether they can explain the differences in the two countries. There are two kinds of evidence that can be cited that raise grave doubts about the validity of explanations of differences based on these factors. First, if the relative rewards from litigation accounted for a significant component of the difference between England and the United States, one would expect that variability in verdicts within the United States would be linked to noteworthy differences in litigation rates within the country. In fact, evidence is clear that there are large differences in typical jury verdicts from one jurisdiction to another in the United States. Daniels and Martin (1986) assembled data on jury verdicts from 43 counties in ten states.(21) They found median verdicts that ranged from $8,433 (DeKalb County, Georgia) to $216,000 (Bronx County, New York).(22) At the same time, efforts to find comparable variability in litigiousness across jurisdictions in the United States (see Grossman et al., 1982) has not been successful.
A stronger argument against the validity of the role of favorable tort law and the resulting rewards for plaintiffs can be made by adding other countries to the comparison. The logic of the comparative analysis is that one would expect countries that shared the characteristics that Atiyah attributes to England to be closer to England than to the United States. Data on claiming in injury cases are available from both Canada (Bogart and Vidmar, 1988) and Australia (FitzGerald, 1983).(23) Both of these countries are fairly close to England in terms of both incentives and relative advantages afforded to plaintiffs and defendants,(24) and hence, if Atiyah's argument is correct, one would expect them to closely resemble England in claiming patterns. The figures for the four countries are shown in Table 1.(25)
PROPENSITY TO CLAIM IN FOUR COUNTRIES
| Country | Case Type | Claim Rate | Source |
| ENGLAND | |||
| Traffic Accidents | 34% | Harris et al. (1984: 51) | |
| Work Injuries | 24% | Harris et al. (1984: 51) | |
| UNITED STATES | |||
| All Torts | 86% | Miller and Sarat (1980-81: 537) | |
| Traffic Accidents | 88% | Kritzer (1989) | |
| Work Injuries | 81% | Kritzer (1989) | |
| CANADA | |||
| Traffic Accidents | 58% | Bogart and Vidmar (1988: 50a) | |
| Work Injuries | 70% | Bogart and Vidmar (1988: 50a) | |
| AUSTRALIA | |||
| Torts | 85% | FitzGerald (1983: 31) |
The pattern for Australia is virtually identical to that of the United States; the Canadian pattern is more mixed, falling closer to England for traffic accident injuries and closer to the United States for work injuries. These comparisons provide no support for Atiyah's contention that differences between England and the United States can be explained by advantages that plaintiffs in America have regarding legal issues or potential awards.(26)
As for the last explanation that Atiyah discusses, alternatives to tort litigation, it is difficult to present a detailed analysis because Atiyah draws only broad generalizations from them. For example, Atiyah points out the availability of free medical care in England; but similar care (though perhaps organized differently) is available in Canada and Australia where there does not appear to be a similar dampening of claiming behavior. Atiyah points out that incidents that would lead to mass tort claims in the United States are usually investigated by a special Tribunal of Inquiry which typically fixes blame, simplifying the process of resolving tort claims related to the incident. However, as noteworthy as such claims are in the United States, they comprise a miniscule portion of the total volume of tort claims processed each year. Similarly, while special alternatives may exist in England for complaints against the Health Service, the legal profession, or the police, tort claims against those groups in the United States, while often newsworthy, do not account for large portions of tort claims.
If one eliminates Atiyah's structural and procedural explanations as I have done, one must come back to the earlier explanations Atiyah downplays. One of these, the contingency fee, can be dismissed in the same fashion as the other structural explanations: such fees are forbidden in Ontario and in Australia as they are in England, but the claiming patterns in those two countries do not closely resemble the patterns in England.(27) The other primary explanation, differences in underlying "litigiousness", brings us back to culture.
With regards to propensity to sue, the key element in the cultural theory that I discussed above is the linkage between signs. The presumption in the United States is that compensation is an expected result of injury; that is, to use Lawrence Friedman's words, Americans have come to expect Total Justice. Placed into the semiotic of culture this means that one of the connotations of injury is compensation. Without this linkage, claiming is unlikely to occur. What evidence is there to support the argument that there is a weak semiotic link between injury and compensation in England?
During 1986-87, I resided in England for a period of twelve months. One of the major events of this period was the English ferry disaster in which over 180 persons lost their lives when an ferry capsized after leaving the Belgian port of Zeebrugge. In the wake of the tragedy, it quickly came out that the crew of the ferry had neglected to close the bow doors (through which cars and trucks enter the ship) allowing water to flood in, causing the ferry to lose stability and capsize. To an American, the relative lack of attention to the question of compensation was striking. This is not to say that the issue did not come up; rather, that it seemed to play a very small part in the post-disaster public discussions. In commenting on the events that followed the disaster, one English writer (Hooper, 1987) described "the English temperament . . [as one] . . . that abhors panic":
Faced with disaster, or the threat of it, the English would 100 time rather under-react than over-react. The "good God, you've lost your leg, sir," "Good God, sir, so I have," syndrome has carried the English dignity through numerous vicissitudes in the 172 years since Wellington remarked on Lord Paget's injury. It was lately and strikingly evident in the behaviour of the relatives of the victims of the Zeebrugge disaster.
My point here is that, in the face of injury, the English orientation is one of stoicism:(28)
. . . the most striking characteristic of the British . .. is their stoicism, or what the novelist Anthony Burgess calls their "patient and philosophical resignation." They will put up with anything and seldom do much by way of redress except to write a peevish letter to the Times of London. . . . . They consider it the height of bad manners to make a fuss about anything, even if they have legitimate ground for complaint (Mosely, 1988: 28)
In this context it would not be surprising to find that the kind of linkage between injury and compensation that Friedman describes in the United States is much weaker or absent.
This lack of linkage is further illustrated by some research that I conducted while in England. That research involved semi-structured interviews with approximately 80 persons in two small communities some distance from London. The interviewees included legal system actors (e.g., lawyers and court officials), other persons who are in positions to render advice and assistance, and members of the general community drawn from a variety of sources.(29) The interviews averaged one hour in length, and covered a range of topics concerning the propensity to sue including actual experiences, responses to hypothetical situations, and responses to key legal system symbols.
One of the questions that I asked each respondent concerned whether they would seek legal advice after a major injury in an automobile accident. Few people, other than the solicitors I spoke to, indicated that they would seek out such advice. Most of them did not think along the lines of compensation beyond that which they would receive from their own insurance company. Many people presumed that their insurance company would cover all of their losses when this was not the case. It was not so much that people were concerned about the costs or risks associated with seeking compensation through the legal system; rather they did not associate the idea of compensation with the automobile accident situation.(30)
Engel's thick description of disputing practices in Sander County (1980, 1984) has represented a major contribution to research on the impact of culture on dispute processing patterns and the role of the civil justice systems in American communities. Can the theoretical approach to culture I have described above shed new or different understandings on the patterns that Engel has described?
In order to employ the semiotic spiral framework systematically in an actual research setting like Sander County, one needs to have some practical linkage from the theory to the observable world. One such tool is a set of categories to guide observation and analysis. The idea of culture as a system of meanings and images shaping action suggests a "dramaturgical" (Burke, 1945, 1950; Goffman, 1959, 1961, 1974; Bennett and Feldman, 1981; Ball, 1976) or symbolic interactionist (Blumer, 1969; Edelman, 1971; Hall, 1972) approach to understanding variations in disputing patterns. Burke in particular, through his pentad of key concepts (1945:x), provides a set of dimensions that can be seen as underlying action and the interpretation of action that flows from the metaphor of the semiotic spiral:
Thus, in looking at dispute processing decisions (e.g., the decision to go to court), I am suggesting that one could examine the "meanings" attributed to different kinds of:
By arriving at an understanding of the underlying bases of the meanings associated with these elements, one can begin to achieve a cultural explanation that goes beyond the use of culture as a residual variable, which is the way the concept of culture is used most often by many (nonanthropologist) social scientists.
One can see the potential usefulness of this framework for the analysis of the "propensity to sue" by simply restating a part of Engel's discussion of Sander County in terms of five dimensions based on Burke's pentad. The low level of court utilization for injury-based disputes in the county reflects the conception of the actor's responsibility for the acts in which she is involved. Pursuing legal remedies as the agency for dealing with an injury- related problem is seen as seeking to displace that responsibility. Conversely, the legal system as an agency for dealing with contract/debt disputes is seen as quite appropriate because of the commitments inherent in the act of entering into contractual agreements.
But the potential of the technique goes much beyond simply plugging existing research into nice pigeonholes. In the case of Sander County, it can suggest reinterpretations or alternative interpretations. One of the core findings reported by Engel is the apparently sharply differing views towards contract and injury. Using the Burkean categories, one can be lead toward a variety of alternative interpretations.
While Engel clearly views the nature of the issues raised by injury problems as fundamentally different from those raised by contract problems, he never considers the scenic qualities associated with those two problems. By this I mean, what kinds of scenes are associated with each problems that might provide cues for proper or improper responses. In my own research in England, when trying to get respondents to answer quasi-projective questions about courts, I had to go to some length to get them to remove from the scenes that came to mind criminal matters; even so, I found that for many, if not most, respondents the courtroom context was closely associated with criminal wrong doing. The only hint of such connections mentioned by Engel concerned debt cases, where he quoted at length a member of the county sheriff's department about the view of small unpaid debts as matters not unlike petty theft (Engel, 1984: 576-577).
The literature on misdemeanor criminal justice makes it clear that cases involving theft are typically perceived as very different than those involving interpersonal violence and injury. The latter are often seen as "junk" cases where issues of fault and provocation are extremely murky, and the accuser is often seen as being as much at fault as the accused. The likely treatment of complainants in such cases by police and court officials (and the widespread knowledge of that treatment) may well serve as a significant disincentive to involving the legal system. Furthermore, in a culture that values individualism and self-reliance (which is the way the Engel portrays Sander County), turning to the authorities for help in interpersonal disputes of the type that may often lead to physical confrontations is perceived as a sign of weakness. Overall, the courtroom scene that might come to the mind of someone pressing an assault charge is likely to have negative associations: it says something about the person's inability to handle his (or her) own affairs, and it could easily lead to a role reversal where the accuser becomes the accused. On the other hand, cases of theft are properly seen as matters for the police and for the courts; there is no stigma attached to seeking out the assistance of the authorities when such problems arise, and it in no way signifies weakness that a theft victim seeks justice through the legal system.
This leads the question of how the scenes of injury and the scenes of contract are connected to the scenes of assault and the scenes of theft. The alternative interpretation I propose is that if there is a general unwillingness to turn to legal authorities (police, courts, etc.) in interpersonal disputes that have lead to physical confrontation either because of norms of self-reliance or because of fears about how the agents of the legal system might respond, this unwillingness may spill over into other arenas involving injury. This connotative process connecting assault, legal processes, and tort-related injury could arise from similarities in the two scenes associated with the precipitating incidents (i.e., both typically lead to injury) and from similarities in the scenes that might be associated with courtroom processes that might follow (i.e., issues of ambiguity about blame and responsibility).
Similarly, as evidenced by the pattern of turning to the sheriff's department for assistance which was noted above, the connotative spirals associated with contract cases (particularly the kind of debt cases that Engel emphasizes) and theft cases are intertwined. There is much less ambiguity in the expectation of and role played by legal processes in theft cases; the "victim" is seldom accused of contributing to or provoking the theft. The courtroom scene associated with prosecuting a theft case is embued with notions of justice as opposed to notions of weakness. These meanings carry over to debt-oriented contract cases, leading to a willingness to turn to the courts as needed in such cases.
How then might one account for the general unwillingness of the traditional farm community to rely on legal processes to enforce oral contracts? Engel (1980: 440-441) suggests that the parties to such contracts feel that they lack evidence of the contract, and that they have other remedies (shunning, self-help, etc.) available for dealing with the breaches that do arise. It might also be that there is little or no experience with theft in such a close-knit rural community so that the positive associations I have suggested linking the handling of theft cases with debt/contract cases seldom arise; or, it may be that the nature of oral contracts cases is fundamentally different from the debt/contract cases so that the connotative spiral that connects debt to theft is not active. While theft may be rare in a rural community place like Sander County, it is likely that physical confrontations arising from interpersonal conflict is quite common, particularly among the young men of the community who probably value traditional male traits of strength and power; thus the connotative spiral linking injury and assault would probably be active.
A final question that is raised by the application of this framework to Sander County is whether the court should be considered an agent or an agency. That is, should the court be seen in terms of process, or should it be seen as a player. Engel clearly views the court in terms of process in his analysis. It is, however, possible to think of the court (and its associated actors) as an agent. If this is true, then the issue of relationships between the disputants (both of whom are agents) and the court as agent becomes relevant. Let me suggest that one interpretation, that follows from discussion just above, views the court in contract cases as agent but an agent that is essentially neutral and outside the relationship between the claimant and the respondent; in the routine contract cases that make up the bulk of contract cases (both in Sander County and elsewhere), the court simply enforces undisputed agreements, not having to take sides. On the other hand, in tort cases (at least those that come to trial) the court in the end does take sides and becomes allied with one party or the other.(32) Thus, in contract cases, one can go to court with relatively little concern about what relationship with the court will result; on the other hand, there is much more uncertainty about the relationship that will come about in tort cases because there is often more doubt about who is right and who is wrong. Thinking in terms of relationships in this way, if one views most people as preferring to know what kind of relationship to expect before initiating a contact with another actor, it is not surprising that the more uncertain tort plaintiff will have greater reluctance to turn to the courts than the business creditor who has routinely used the courts to assert claims with a great deal of certainty concerning the outcome.(33) It is also worth noting that these same business creditors are often impersonal organizations that may not have the same types of concerns about relationships with other actors that the individuals typically involved in tort litigation are going to have; thus, one might expect that organizations affected by torts would not have the kinds of reluctance to use legal processes that individuals have.
The focus of this symposium is on longitudinal studies of the courts. Let me turn now to one last example that illustrates the utility of the culture framework I have posed to suggest hypotheses about sources of longitudinal change. That is, how might the historical or diachronic nature of the symbol system that comprises the legal dimension of political culture have changed over time in ways that influence the salience of compensation? In a previous section, I made reference to Friedman's essay on America's apparent expectation of Total Justice. Friedman's proposition is that, for whatever reason, American's have come to "think compensation." As I argued in relation to Atiyah's essay, the evidence from England, both that reported by Harris et al. (1984) and that which is suggested by my own research, appear to show that people in England do not, by and large, think in these same terms. Interestingly, there is some evidence that this is not limited to situations of third party liability; an insurance company executive in England commented to me that, at least until recently, policy holders seemed to have a reluctance to claim against their own policy unless the loss was major.(34)
The relevant point in Friedman's analysis is that American's have not always been as compensation conscious as they are today (see particularly Friedman, 1987), and this, combined with the apparent contrast between the United States and England, raises the question of how Americans have come to be so compensation conscious? How has the legal dimension of American political culture evolved to create the connotative link between injury and compensation? Friedman's argument about change is that in the 19th century life was often "poor, nasty, brutish, and short" (though, to complete Hobbes' famous aphorism (1958: 107), not necessarily "solitary"), not because of political turmoil, but because of the inherent uncertainties and dangers associated with the level of social and technological development of the period (Friedman, 1987). According to Friedman's analysis, over time, as the dangers of many kinds of routine activities have declined through improvements in technology, American's have developed very different expectations vis-a-vis day to day life. As injury and accidental death have come to be seen as unusual events, Americans have come to expect, through such mechanisms as tort litigation and insurance, compensation when injuries or other kinds of losses do occur.
There is nothing about this argument that is uniquely American; most (perhaps all) developed countries have experienced the same kinds of improvements in expectations regarding the way life should and will proceed. But the kinds of expectations that apparently exist in the various countries differ in marked ways; Americans are seen as being particularly claims conscious. If the changes that have led Americans to be increasingly claims conscious (e.g., declines in expectations of uncertainty and danger, and increases in availability of compensation) are characteristic of countries where there have not been sharp increases in claims consciousness, the validity of an explanation based on those changes is questionable.
In light of my earlier discussion of Atiyah's analysis of Anglo-American differences, one must immediately call into question Friedman's analysis. England has enjoyed the same technological developments that Friedman argues has heightened Americans' expectations of compensation. But as was shown in Table 1, in the area where Friedman's argument might be the strongest, work-related injuries,(35) the gap between the United States and England is particularly wide (81% of Americans with work-related injuries claim compensation compared to only 24% of English men and women).(36)
What then accounts for the apparent difference between the United States and England? I believe that the explanation lies at the level of symbolization. As I discussed previously, there is relatively little linkage between "injury" and "claim". What differences are there in historical patterns in the United States and England that might have lead to differences in connotative linkages? Let me suggest two differences that may have lead to first to less of general orientation toward claiming, and second to less of a linkage between injury and claiming compensation in England.
One interesting difference between the United States and England over the last 40 years has been the development of an extensive social welfare system in England generally, and the creation of the National Health Service in particular, whereby users of the NHS never even see a bill, and seldom have to make direct payments, for medical treatment.(37) One obvious result of NHS is that people in England need not worry about seeking compensation for medical expenses after an injury since their treatment will be covered by NHS. But there is a more subtle difference between the U.S. and England that might be attributed to NHS.
The parallel development with regards to health care in the United States has been the tremendous extension of private health insurance; while coverage under such insurance plans is far from universal, it covers a substantial majority of the American population. One feature of most health insurance plans as they have operated in the United States is that reimbursement is not automatic; one must submit claims in order to obtain payment.(38) One impact of this is that claiming in a nonadversarial context has become a very routine part of everyday American life; is it possible that this has washed over into the adversarial context? What I am suggesting here is that, over the last forty years, claiming has come to be seen as something that is in no way special or out of the ordinary which in turn reduces the barriers to claiming that one might have expected to exist in third party compensation situations.
The second difference is more specific to linkages between injury and claiming compensation. In the early part of the twentieth century, the American states adopted no fault worker's compensation systems. Americans suffering work-related injuries were then able to obtain compensation, typically in fixed (and relatively small) amounts, by simply filing a claim and documenting the source nature of the injury. Interestingly, this system was modeled on earlier, no-fault schemes that developed in England. However, the systems in England (see Atiyah and Cane, 1987: 327-354) rapidly evolved in such a way that there was a close resemblance between industrial accident compensation programs and traditional tort compensation systems (i.e., there was a substantial adversary element). Some social welfare benefits could be obtained as a result of work-related injuries that led to an interruption of income because of an inability to work,(39) but this system came to function more or less in parallel with a more fault-oriented compensation system. Thus, while the American no-fault worker's compensation system may have served to routinize the expectations that compensation would be claimed for injury, the English system tended to provide some income replacement while erecting barriers to seeking compensation for other aspects of the loss.
Thus in England there seems to have developed a highly routinized expectation of lost income will be at least partially replaced by the State through the welfare system. There is little indication of hesitation to apply for and obtain such benefits when an entitlement exists. At the same time, there appears to be a continuing reluctance to seek other forms of compensation provided for under tort law or its derivatives. In the United States, there does not appear to be an expectation that income lost as a result of injury will be replaced by the state (though there probably is an expectation that income lost because of employment displacement will be partially replaced). The system in the United States creates a tight linkage the experience of injury and the process of claiming compensation. In England the linkage is to state benefits, and it appears that claiming such benefits does not spill over into claiming compensation from other sources.
This suggests several lines of longitudinal or historical research. First, how might one explore the linkages between claiming generally and litigation? It would be extremely useful to try to link litigation patterns, particularly those for personal injury litigation, to patterns of claiming against insurance policies, whether those be in the health area, general fire and casualty area, or automobile collision and comprehensive coverage. I do not know what data might be available in the public domain, nor do I know what kind of cooperation might be forthcoming from the insurance industry that must have the kind of data needed for the analysis.
Second, it might be extremely valuable to look at historical documents that would provide evidence concerning how compensation, claiming, and litigation were perceived at earlier periods of American history. I am thinking of sources like memoirs and diaries of legal system actors (lawyers and judges), newspaper coverage of injury producing accidents, and publications by organizations with a special concern about compensation related issues (e.g., trade unions, the insurance industry, social welfare organizations). Has the perception of compensation changed overtime, and if so, in what ways?
Third, is it possible to identify intra-national groups that have differing historical orientations to the role of injury and compensation in their social lives, and if so, how do semiotic spirals reflect those historical experiences? As Carol Greenhouse shows in her careful analysis of the roots of disputing behavior in Hopewell, the symbolization process is rooted in historical experience. Her research on the historical roots of disputing orientations in that community represents the kind of research I have in mind, but extended to two of more communities or groups with distinctly differing heritages.
An example of the historically-based explanation of symbolization I have in mind is suggested by variations that were reported to me in "Weston," one of the communities where I conducted interviews in England.(40) For operational purposes, I defined the "communities" for my research in terms of the catchment areas served by a single County Court.(41) In Weston, there were three clearly distinct socio-economic communities in the catchment area of the "Weston" County Court. One of the communities was a traditional industrial area, with a strong union presence and a long standing Labour voting pattern; in recent years, the major sources of employment in this community ("Rustburg") have fallen upon difficult times and unemployment has been at very high levels. A second community ("Estateland") was based around an old landed estate, where the land was still largely owned by the local "Lord" and farmed on a tenant basis; over the last couple of decades the town around which this community is centered has seen substantial growth in one or two of the major employers. The third community ("Hillville") was set some miles away from the other two in a relatively isolated area in which the dominant economic pattern involved farming ones own land; historically, the community was involved in a type of mining activity that frequently led to early death among the men employed in the mines, often making it necessary for a surviving widow to carry on through farming the family's land.
While these communities are clearly distinct, several of the employers I spoke with reported drawing upon two or more of the communities for their workforces. When I asked the personnel managers at this companies whether they saw any differences among employees drawn from the three communities, some interesting patterns emerged. In particular, I asked how typical employees from each community would respond if they suffered a work-related injury or were injured in an auto accident. The proto-typical responses were quite distinctive. Persons from "Rustburg" would expect to be compensated; they would probably turn to their union for assistance, and deal with the problem in the kind of militant or adversary fashion associated with the union. Those from "Hillville" were thought to deal with the event in a more self-reliant fashion; personal misfortune was deeply rooted in the historical traditions and expectations in Hillville, and coping with such events was the normal course of action. Persons who came from Estateland were accustomed to the kind of paternalism associated with the image of the relationship between the landed aristocracy and those dependent upon them; in the face of misfortune, Estatelanders simply expected that the right thing would be done, and that they would be taken care of. Let me emphasize that what I am describing here are expectations or perceptions; I have no systematic evidence that verifies that existence of actual differences in behavioral patterns.
This discussion suggests how the symbolization associated with misfortune is linked into the historical experience of a community. Where misfortune is an expected part of day to day life, experiencing an actual incident is probably not going to prompt adversarial demands for redress. Or, if the misfortune occurs in the context of community (or patron) support and care, the victim is likely to expect that necessary aid will be provided and to accept the aid that is forthcoming. On the other if the symbolization associated with misfortune is proactive, whether involving adversarial or nonadversarial action, then the style of dealing with misfortune is probably going to involve externalization leading to some type of claiming behavior.
There are two kinds of conclusions to be drawn from the analysis that I have developed in the preceding pages. The first deals specifically with the topic of the symposium: what are the longitudical and historical antecedents of patterns of use of the courts. Specifically, (1) what accounts for shifts or divergence in symbolization, and (2) how do changing patterns in litigation behavior relate to shifts in symbolization? In my brief discussion of the possible impact of the routinization of claiming in the United States, I have suggested one kind of evolutionary change; a pattern of behavior is created through structural factors (e.g., provisions for paying for health care), and that behavior comes to affect key symbols (e.g., "claiming") that have implications for broader areas of social life. One can also imagine more abrupt kinds of changes, created by specific events (or, as in the case of Hopewell, a cluster of reinforcing events culminating in the Civil War [see Greenhouse, 1986: 191-192]); the most extreme version of this kind of shift could probably be described as revolutionary change.
The broader conclusion to be drawn from my discussion concerns the potential of the conceptualization of political culture that I have discussed. My discussion integrates material from a disparate array of analytic and research traditions, and I make no claims that my conceptualization of culture is original. The advance I make is in the effort to show how the framework I have proposed can be applied in actual analytic settings. The goal here is to combine a theoretical framework (e.g., the conceptualization of culture in terms of a common semiotic spiral) with an analytic framework (e.g., the set of categories derived from Burke's pentad). The three examples in the paper could be seen as suggesting a related progression.
The first example, in which I present a critique of Atiyah's argument that Anglo-American differences can be explained by legal and structural factors, represents strong evidence that one cannot explain significant differences in the components of propensity to sue without considering the influence of political culture.(42) In the second example, I show how one can use analytic categories based on Burke's pentad to carry out an actual analysis; obviously, with only published reports to work from, any reinterpretation such as that I suggest for Sander County must be extremely tentative. In the final example, in which I consider again Anglo-American differences, I suggest the kinds of specific factors one would want to look at in seeking to account for varying developmental patterns in the United States and England; if one had available the research data, one could apply the framework used in the second example to those data to yield a powerful comparative analysis of the influence of the legal dimension of political culture on the willingness of persons to turn to law and legal institutions to deal with conflict.
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1. This emphasis on comparison and variety in the study of civil justice follows by a period of about 10 years the emergence of a series of studies of criminal justice which emphasizes diversity (see Eisenstein and Jacob, 1977; Jacob and Lineberry, 1982; Levin, 1977; Eisenstein, Flemming, and Nardulli, 1988).
2. To my knowledge, there have been no studies of a similar style that show communities which conform to the "litigious American" image.
3. See Halliday (1987) and Rueschemeyer (1986) for explicit applications of this renewed state-centered approach to aspects of the legal system.
4. See Zemans's (1983) argument that legal mobilization in general should be considered as a form of political activity.
5. I should emphasize that the legal dimension of political culture should not to be confused with the concept of local legal culture. The latter notion has been advanced to account for differences in the way that the legal system operates and concerns the norms governing the actors who comprise the legal system (Church et al., 1978; Church, 1982; Boyum, 1979). As I will make clear below, the kinds of norms, expectations, and standards that comprise the elements of the local legal culture concept are not what I mean by culture.
6. "Culture tends to be a ragbag concept: an explanation of last resort, and a stopper of unwanted arguments (Wildavsky, 1988: 3)."
7. While this discussion, and that in the following pages, focuses specifically on the law/courts dimension of political culture (and the more general idea of political culture presented previously is not considered further), the approach to culture that I outline could be applied equally well to the "politics" and "government" dimensions.
8. Wildavsky's recent work on political culture (1987) is similar to this orientation, but substitutes preferences for norms.
9. Greenhouse (1986: 33) suggests a somewhat similar idea in her study of Hopewell: "Culture is not the script of [people's] daily lives but the logic behind the choice of one script among many of which they are well aware."
10. Compare to Hall's implicit symbolic interactionist definition of political culture (1972: 53): "the manipulation of symbols takes place in the context of existing sets of symbols or a political culture" [emphasis added].
11. This structure is closely related to ideas employed in symbolic interactionist analyses of social phenomena (which uses the concept of "symbol" in much the same way as the concept of "sign" is used in semiotics, though semiologists distinguish between symbol and sign [see Barthes, 1982: 211f]).
12. Compare to Blumer (1969: 52): "people act toward objects on the basis of the meanings of such objects for them."
13. Compare to Barley (1983: 398): "A semiotic approach to the study of culture elevates the presumption of a socially shared system of meanings from the status of a background assumption to the explicit focus of investigation . . ."
14. While I find it useful to describe this conception of culture using the semiologist's (and to a lesser degree the symbolic interactionist's) vocabulary, elements of the conception can also be found in diverse writings, including the work of G.H. Mead (1934), Ichheiser (1970), Edelman (1964, 1977), and anthropologists like Geertz (1973), Schneider (1972), and Turner (1974, 1982). One of the best expressions of this approach is found in the work of Schneider:
[T]he "cultural system" . . . consists in the system of symbols and meanings embedded in the normative system but which is a quite distinct aspect of it and can easily be abstracted from it. By symbols and meanings I mean the basic premises which a culture posits for life: what its units consist in; how those units are defined and differentiated; how they form an integrated order or classification; how the world is structured; in what parts it consists and on what premises it is conceived to exist, the categories and classifications of the various domains of the world of man and how they relate one with another, and the world that man sees himself living in. . . . . [This image of] culture takes man's position vis-a-vis the world rather than a man's position on how to get along in this world as it is given. . . Culture concerns the stage, the stage setting, and the cast of characters [as opposed to] the stage directions for the actors and how the actors should play their parts on the stage that is so set (1972:38).
15. In his recent discussion of the use of semiotic theory in fieldwork, Manning (1987: 28) suggested some specific aspects of signs that merit examination:
16. Significant injuries were defined as those that resulted in some interference with normal day to day life for a period of at least two weeks.
17. Miller and Sarat (1980-81: 537) report an overall claiming rate of 86% in tort cases based on these same data. I should also note that Harris et al. define their base differently than do Miller and Sarat; the former use injuries resulting in some disruption of normal actities for two weeks or more, while the latter use damages of $1,000 or more. It is difficult to make a statement on exactly what the signficance of this difference is for the statistics that are reported above.
18. This may be something of an overestimate because the figures on claiming under the tort system in Harris et al. (1984) do not take into account whether or not the injured person attributed responsibility for the accident to someone other than him or herself. According to figures reported by Harris et al. (1984: 151), two-thirds of traffic accident victims attributed fault to someone else; if one assumes that all persons injured in traffic accidents who attributed injury responsibility for the injury to themselves did not claim, the 34% figure above would be readjusted to approximately 50%!
Regarding work-related injuries, where the claiming rate is lower, only 38% attributed responsibility to someone other than themselves. This would suggest a claiming rate as high as 64% if only those who made an external attribution of responsibility claimed. However, while only 38% made such attributions, 53% believed that someone should provide compensation.
The complexities of attempting readjustments to the Oxford figures suggested by this last anomaly are applified by one other figure reported by Harris et al. (1984: 150): "Only 52 per cent of those who took even preliminary steps towards a legal claim said they thought the accident was someone else's fault and that that person should compensate them." The Oxford researcher's conclude that "the attribution of fault is a justification rather than a motive for seeking damages" (ibid., p. 151, emphasis in original).
I should also note that those elements of the British welfare state that provide support payments for those injured at work were treated separately by the Oxford researchers; obtaining state-provided short-term injury or sickness benefits, long-term disablement benefits were considered entirely separately from the claiming process under the tort system.
19. There is no doubt that the size of recoveries that can be obtained through tort litigation in England is substantially lower than what can be obtained in the United States. There are statutory limitations on damages in wrongful death cases (£3,500), and precedential standards for pain and suffering that currently allow at most £100,000 (Atiyah, 1987: 1023). It is worth contrasting these figures to awards made by English juries in libel and slander cases (the one civil law area where juries are used in England); in a recent case involving the novelist and politician Jeffrey Archer against The Star (one of London's popular tabloids) resulted in an award of £500,000 (New York Times, July 25, 1987, Section I, page 4).
20. For example, one of the arguments that Atiyah advances is that American juries may more easily find negligence that do English judges because of a sympathy factor. The problem with this argument is that it fails to consider the uncertainties created by English legal procedure regarding liability. As I have argued elsewhere (Kritzer, 1989), there is probably more uncertainty generally in England regarding verdicts because of the lack of any significant procedures for discovery; this is in some ways offset by the greater certainty concerning damages in England.
21. The data are from the period 1981 to 1985, though for some sites only part of the period is covered.
22. By far the largest set of cases in each county involved vehicular accidents, with medians ranging from $4,144 (Clay County, Missouri) to $143,760 (Richmond County, New York).
23. The Canadian data are for the province of Ontario (which, of the Canadian provinces, is probably the most similar to England in law and procedure); the Australian data are from the state of Victoria (which includes Melbourne).
24. For example, in 1978, the Supreme Court of Canada in a set of cases referred to collectively as "the Trilogy" (Andrews vs Grand & Toy, Alberta Ltd. [1978] 83 D.L.R.3rd 452 at 478; Thornton vs Board of School Trustees of Schoold District No. 57 (Prince George) et al. [1978] 83 D.L.R.3rd 480 at 490; Arnold vs Teno [1978] 83 D.L.R.3rd 609 at 640) established an effective cap of $100,000 on awards for pain and suffering; this cap has been allowed to rise to adjust for inflation, but even so it is somewhat under the equivalent cap in England (see note 19 supra). For a general discussion of compensation in tort cases in Ontario see the Ontario Law Reform Commission Report on Compensation for Personal Injuries and Death (1987).
25. See note 12 supra for a discussion of the comparability of the English figures to those from the United States (and to Canada and Australia, since the research designs for those two countries, closely paralleled that from the United States.
26. One related factor that Atiyah does not mention is the disincentives created by fee shifting. In all of the countries shown in Table 1 except the United States, plaintiffs who lose are theoretically expected to pay some or all of the defendants costs, including legal fees. While there may be some support in the figures in Table 1 for the argument that such incentives discourage litigation (in particular, the Canadian pattern), this does not account for the U.S./England gap. Furthermore, the practice of trade unions in England is to provide free legal assistance (including payment of the defendant's legal fees and costs if the action is unsuccessful) to members injured at work, but the rate of claiming is lower in England for work injuries (where the disincentives are mitigated) than for traffic accident injuries (where there is less mitigation).
27. While underlying propensities to sue might not be accounted for by contingency fee rules, the particular form of the American contingency fee rule may lead to a particular kind of entrepreneurial practice of law that increases the likelihood of injured parties pursuing, and lawyers taking on, novel kinds of cases which, if successful, can open up new areas of litigation (see Prichard, 1988: 465-468).
28. This stoicism is further illustrated by a recent book on variations in health care across the United States, Great Britain, France, and West Germany (Payer, 1988). As summarized in Newsweek (September 19, 1988, p. 83), ". . . British doctors have always been conservative--when in doubt they don't treat. Medical attitudes also reflect the British stiff upper lip. Psychiatrists, for example, tend to regard people who are quiet and withdrawn as normal, while quickly prescribing tranquilizers to anyone who seems unsuitably overactive."
29. I made no effort to draw a formal random sample; the selection of respondents would best be described as purposive. Severe difficulties were created by rules in England restricting access to many kinds of records which might have served as the basis for respondent selection.
30. I do not want to suggest that the respondents were unconcerned about questions of cost; rather, this did not appear to be an initial consideration. When I probed regarding why or why not legal assistance would be sought, the question of cost would usually be brought up in the course of the discussion.
31. It is also worth noting the similarity between these categories and the elements of that comprise the ethnomethodologist's concept of indexicality: "(1) the identity of actors, (2) salient aspects of actors' biographies, (3) the actors' immediate intentions and aims, (4) the settings where the action occurs, (5) the relationship between actors and their audiences, and (6) how their action follows actions by other participants (Adler and Adler, 1987: 26)." I prefer the Burkean pentad because it does not presume the level of intimate knowledge required by ethnomethodology.
32. In his analysis of Courts, Shapiro (1981: 1-8) argues that the need to maintain the aura of neutrality in the context of ultimately having to take sides is one of the major political problems faced by courts as institutions.
33. One could state a variant of this interpretation simply in terms of uncertainty--there is more uncertainty associated with torts than with debt/contract cases; this would be consistent with the reluctance of farmers to enforce oral contracts through the courts (since there is much more uncertainty with oral contracts than with written contracts, even if courts are willing to enforce oral contracts). Interestingly, this interpretation is not suggested by Engel, and it occurred to me only as a result of working through the analysis above.
34. This may be changing. In recent years, the number of claims against automobile insurance policy has risen much more rapidly than the rate of increase in traffic accidents.
35. This area would seem to be particularly relevant in light of the kinds of doctrinal changes that have occurred over the last century (see Friedman, 1987: 356f; Munger, 1987).
36. As I noted earlier, these differences cannot be explained by the existence of disincentives to litigate in the English system. Since unionized workers are almost totally shielded from those disincentives by their unions; the unions will provide legal assistance to seek compensation for workplace injuries and will cover the "downside" risk of having to pay the employer's legal costs if the employer wins the case. In fact, a higher percentage of road accident victims claim and obtain compensation, and this occurs with much less shielding from the disincentives created by fee shifting and legal fees.
37. Growing numbers of persons in England have taken out private health insurance to make it possible to obtain hospital treatment outside of the NHS and thus avoid the tremendous waiting lists that exist for some kinds of nonemergency treatment. In recent years, users of the NHS have been required to make partial payments for prescriptions but the amounts involved are modest by American standards.
38. For some kinds of things, no claim is needed because payment is handled directly between the insurance company and the medical provider; this is most often the case in connection with hospital costs. The growth of health maintenance organizations (HMO's) in recent years may be eliminating some of the routine claiming.
39. In the case of work-related injuries, the benefits were, until recently, often greater than those paid as a result of other injuries. The basic benefit, statutory sick pay, is not particularly generous; it is set at a maximum of £46.75. Excluding other benefits, this replaces less than a quarter of the typical earnings of the English worker (Atiyah and Cane, 1987: 356).
40. "Weston" is a pseudonym for the community where the research was carried out; I call the second community "Easton." The subcommunities identified above are also identified by pseudonyms.
41. The name "County Courts" is a historical artifact; the catchment areas are not contiguous with English counties.
42. Propensity to sue is best thought of in terms of a developmental framework in which each of several distinct stages (see Felstiner, Abel, and Sarat, 1980-81) are examined: attribution of responsibility, claiming, and litigating.