VARIATION IN LITIGATION RATES
Ligation rates may vary over time and space. Regarding time, a common view in the law and society literature is that increased societal complexity and heterogeneity have increased litigation rates. However, some authors contend that social development of this nature does not necessarily lead to higher rates of litigation, at least for the span of time since the nineteenth century For example, Lawrence M. Friedman (2005) argues that there is no evidence that nineteenth-century America witnessed proportionately less interpersonal litigation than mid-twentieth-century America, despite more cohesive kin and residential systems in the earlier period. Similarly, over time in Spain, the litigation rate “has remained remarkably constant and at a relatively low rate . . . the process of economic change does not seem to have affected the rate of litigation” (Jose Toharia, quoted by Grossman and Sarat, 1975:59). Vilhelm Aubert (1969) reached a similar conclusion in his study of Norway’s legal system. He noted that the demand in Norway for dispute resolution during the previous hundred years had remained stable or even decreased, despite vast social changes and great economic progress during this period.
In a study of the civil load of two trial courts in California between 1890 and 1970, Lawrence M. Friedman and Robert V Percival (1976) sampled civil case files of the superior courts in two counties. They found that litigation during the latter period was not higher than the former period 80 years earlier. In fact, the litigation rate in the latter year was somewhat lower. They attempt to explain this decline by suggesting that uncertainty—a prime breeder of litigation—has declined in the law and that rules are more settled now than in 1890. The routine administrative function has replaced the dispute- settlement functions in these courts. In reanalyzing Friedman and Percival’s data, however, Richard Lempert (1978:133) came to the opposite conclusion: Although “the mix of judicial business has changed over the years” and there is
little reason to believe that courts today are functionally less important as dispute settlers than they were in 1890 . . . overall, I do not believe that we can conclude from the Friedman and Percival data that the dispute settlement function of courts . . . has diminished over time.
Although the evidence of increased litigation since the nineteenth century is inconsistent, there is clear evidence that litigation rates vary over space, that is, from one society to another and even from one area to another area within the same society. Among industrial societies, Japan has often been identified as a nation with a low litigation rate (Tanase,
1995). In an often-quoted article, “Dispute Resolution in Japan,” Takeyoshi Kawashima (1969) discussed specific social attitudes toward disputes that are reflected in the Japanese judicial process. Traditionally, the Japanese prefer to resolve disputes informally rather than take them to court. This aversion to litigation exists for two reasons. First, the Japanese culture emphasizes harmonious relationships, and litigation can disrupt relationships.
When disputes do arise, the Japanese culture leads many people either to apologize for a perceived wrongdoing or to forgive someone for doing something wrong. Second, the Japanese culture also emphasizes authority and hierarchy. Subordinate persons and groups are supposed to defer to more dominant persons and groups. This means that subordinate parties simply “lump it” (to recall our earlier term) when they feel they are wronged.