Several characteristics of the flow of litigation are significant. The processes by which cases are decided differ widely according to the type of dispute, the participants involved, and the stage of the judicial process at which the dispute is settled. In many instances, civil and criminal cases are quite different, and we review them separately.


A high degree of discretion characterizes every phase of a criminal prosecution (Hemmens et al., 2017). The process begins with an alleged crime and the arrest of the suspect. At this point, the police may or may not exercise the option of arresting the lawbreaker. Once an arrest is made, however, the next step is to file charges against the prisoner and to set the amount of bail. Again, at this stage, judges can exercise a great deal of discretion in setting the amount of bail, which frequently results in many defendants having to wait in prison for trial. The poor are very much at a disadvantage in this respect. In New York City, for example, an early study showed that 25% of those arrested could not come up with the $25 (about $180 in today’s dollars) that would have enabled them to be set free on bail before trial (President’s Commission on Law Enforcement and Administration of Justice, 1967:131).

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