To understand what courts do, it is necessary to examine the kinds of disputes they process. Sheldon Goldman and Austin Sarat (1989) outline three categories of disputes that provide the bulk of work of American courts.
The first is called the private dispute. This kind of dispute is characterized by the absence of any initial participation by public authorities. For example, when a married couple quarrels, when two businesspersons debate the terms of a contract, and when two automobiles collide, these events are likely to give rise to private disputes. Although they may occur in public places and may involve competing interpretations of law, they remain private as long as the government is not a party. Because these disputes are in the course of normal social life, they are usually processed without government intervention. Many of these disputes can handled in the general context of ongoing relationships or through bargaining and negotiation. For example, the married couple may seek marriage counseling, the businesspersons may arrive at a compromise through negotiation, and a settlement may be reached for the car accident through an insurance company. Sometimes, though, these nonlegal forms of dispute processing prove insufficient. If so, the disputing parties may ask the courts for legal redress.
The second category of disputes is called the public-initiated dispute. It occurs when the government seeks to enforce norms of conduct or to punish individuals who breach such norms. An illustration of the public-initiated dispute is the ordinary criminal case in which the state, or some official acting on its behalf, seeks to use the courts to determine whether a particular breach of law has occurred and whether sanctions should be applied. Public- initiated dispute is unique because it involves the law of the entire community. In the case of criminal law violation, dispute processing in a democracy occurs in a public forum, the court, assuming an arrest had occurred and a prosecutor proceeds with the charges. However, because many crimes occur that do not come to the attention of the police, these offenses do not result in arrest or prosecution. Moreover, most crimes that come to the attention of the police still do not yield an arrest (Barkan, 2018). For these reasons, most crimes do not end up being public-initiated disputes that reach the courts.
The third kind of dispute is the public defendant dispute. In this type, the government participates as a defendant. Such disputes involve challenges to the authority of some government agency or questions about the propriety of some government action that may be initiated by an individual or by an organization. In such cases, the courts are called upon to review the action of other branches of government. These disputes involve claims that the government has not abided by its own rules or followed procedures that it has prescribed. For instance, parents of children in racially segregated public schools might claim that school officials violated the U.S. Constitution’s guarantee of equal protection of the laws. In general, such disputes come to court only after aggrieved parties have failed to remedy their grievances either through the political process or through procedures provided by the offending government agency.
These three types of disputes—private, public-initiated, and public defendant—represent, for the most part, the workload of American courts. It should be noted that, contrary to widespread beliefs, courts generally process rather than resolve disputes. A court decision is seldom the last word in a dispute. For example, after a divorce decree, the estranged couple may continue to argue, not about settlements, but about visiting rights or proper supervision of children (Sarat and Felstiner, 1995). Similarly, in many cities, court-ordered desegregation and busing a few decades ago did not resolve the issue of where children should go to school, not to mention the more enduring and underlying racial issues.
Thus, it should be remembered that, whether the disputes involve only two individuals who bring the case to court or whether cases have broader ramifications, court decisions are seldom the final word in a dispute. Let us now consider the structure of courts where decisions are rendered.