Academic journal article The Journal of Gender, Race and Justice

There Is No Such Thing as Litigation: Access to Justice and the Realities of Adjudication

Academic journal article The Journal of Gender, Race and Justice

There Is No Such Thing as Litigation: Access to Justice and the Realities of Adjudication

Article excerpt

I. Introduction...........................................................................................185

II. Perceptions of Litigation......................................................................186

A. Information Streams...............................................................................186

B. What Gets Noticed?...............................................................................188

1. The Duke Lacrosse Players................................................................189

2. The O.J. Simpson Case......................................................................191

3. Media Coverage: The News and the Movie House...........................192

III. Perceptions of Litigation in Academia: Law Students....................194

IV. Perceptions of Litigation Among Lawyers........................................196

V. There is No Such Thing as "Litigation": Mass Adjudication...........197

A. Civil Cases.............................................................................................197

B. Criminal Cases.......................................................................................204

VI. Can Litigation be Properly Defined?..................................................207

A. The Public: No.......................................................................................208

B. Law Students and Lawyers: Perhaps.....................................................208

VII. Conclusion...........................................................................................210

Lit'i-ga*tion: A legal contest by judicial process.* 1

Dtc-tiomary: A reference book containing words or names typically important to a particular subject or activity along with discussion of their meanings and applications.2

I. Introduction

Does a "contest by judicial process" describe litigation's "means and applications"? Overwhelmingly, no. Litigation is not about judges: it is about default judgments, settlements, plea bargains. It sometimes does not even involve judges at all.3 Litigation is not about trials: the amount of litigation that goes to trial is infinitesimal.4 It is not about "process": the process is so minimal that to dignify it with that term stretches the word beyond recognition.5 It is not a "contest": it is an exercise where one side has no plausible chance of winning, especially since that side either has no lawyers or lawyers with overwhelming caseloads to enforce whatever written rules do exist.6

This Article explores the reality of litigation by, first, examining some of the psychological bases for the power of the standard-and misleading-conception of how litigation is perceived. It then addresses how this definition omits the overwhelming amount of litigation as it truly is: litigation involving low income litigants in both civil and criminal cases. The Article concludes by examining whether public conception of litigation will ever reflect what "litigation" really is.

II. Perceptions of Litigation

Perceptions of litigation emerge from how cognition works, and then manifests itself among the lay public, law students, and lawyers themselves. What follows explores each of these topics.

A. Information Streams

There is extensive literature about how humans perceive what is in the world.7 Social psychologists in particular have developed an important insight: the brain includes, omits, and constructs perceptions of what is "out there."8 This is not merely an element of cognition: it is cognition. For it to be otherwise would lead to, in William James' phrase, "a bloomin' buzzin' confusion."9

Cognition thus limits how we view the world. We see what is before us- what has been called the "information stream."* 5 * * * * 10 Things outside the "information stream" are invisible. This idea was well articulated by Francis Bacon in 1620: "things which strike the senses outweigh the things which do not immediately strike it, though they be more important. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.