Volume 1, No. 2 (April 1991) pp. 35-38

THE APPEAL OF CIVIL LAW: A POLITICAL-ECONOMIC ANALYSIS OF LITIGATION by Wayne V. McIntosh. Urbana: University of Illinois Press, 1990. 223 pp.

Reviewed by Herbert M. Kritzer, Department of Political Science, University of Wisconsin-Madison.

Almost a decade ago, Wayne McIntosh published the first report of his fascinating research on the history of civil litigation in St. Louis, Missouri. THE APPEAL OF CIVIL LAW is the culmination of that research. This book is a richly textured portrait and analysis of the ups and downs, changes and constancies of legal mobilization in one major American city. In line with the growing body of research on historical patterns of court use, the core point to be drawn from McIntosh's study is that simplistic, broad generalizations are usually inappropriate in the context of civil litigation.

McIntosh has brought together his project into an eight chapter book. The first two chapters lay out the theoretical framework and the historical context of the St. Louis case. Chapters 3 to 6 trace the patterns of change in the nature of cases brought to court, the litigants in those cases, the configuration of parties (i.e., individuals versus individuals, individuals versus organizations, etc.), and the outcomes of cases (both in terms of nature of dispositions and who prevails). Chapter 7 is a multivariate statistical analysis of the factors influencing litigation rate (reporting essentially the same analysis that appeared in an article in the AMERICAN POLITICAL SCIENCE REVIEW). In Chapter 8 McIntosh reconsiders some of the key theoretical issues discussed in Chapter 1 in light of the results of his analysis of the patterns of change in litigation in St. Louis.

McIntosh casts his theoretical argument in terms of political economy: litigation is a form of political behavior that may be influenced by the larger political-economic environment. Subspecies of this view include

-- Social change theory: the level and type of litigation is influenced by societal development, differentiation, and complexity, with significant changes in social context producing unstable situations that disrupt informal institutions of conflict management (and force recourse to formal institutions like the courts). -- Functional change theory: the level of litigation is a function of the availability of judicial resources; as demand increases, the systems become more complex and more costly, which discourages some types of potential litigants. -- Litigation as a political activity: public policies of various sorts are defined and implemented through the litigation process; as the expectations about the role of

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government (broadly defined) change, the numbers and kinds of cases brought to court will change accordingly. Even ostensibly private disputes serve the purpose of establishing general social standards of behavior.

Drawing on those perspectives, McIntosh lays out his key hypothesis (p. 17):

"[L]itigation, in generic terms, should be symptomatic of the stress created during [periods of major change]. Litigation generally occurs when relationships deteriorate or when people experience difficulty in reaching agreement in problem situations. . . [L]itigation activities reflect environmental conditions."

With this hypothesis in mind, McIntosh presents an historical sketch of social and economic development in St. Louis.

The core of the book, chapters 3 through 6, is an effort to tie the patterns of change in various aspects of litigation (types of cases, parties, outcomes, etc.) to change in the broader St. Louis environment. The data base McIntosh uses consists of sixteen samples taken at five or fifteen year intervals (the original goal was five year intervals but that was eventually scaled back because of the amount of time and effort required). Each sample consisted of about 250 cases, yielding a total of 4,160 cases. For each case, McIntosh coded in detail information contained in the court record.

Within the limits imposed by his data source (court records afford at best an incomplete picture of a case), McIntosh provides a detailed look at litigation patterns. His discussion is enhanced by frequent examples drawn from the cases in his data set. Thus, while the analysis could easily have become a dry compilation of statistics, McIntosh succeeds in bringing the data to life through the details of individual cases selectively presented. By and large the broad patterns described by McIntosh are not surprising, having previously been reported both by McIntosh and by scholars like Lawrence Friedman and Robert Percival, Stephen Daniels, and John Stookey:

-- variations in litigation rates appear to be cyclical rather than showing clear trends of increase or decrease; -- levels of litigation during parts of the 19th century were much higher than any levels seen during the 20th century; -- over time, debt and contract cases tend to decline while tort and divorce cases increase (both in terms of docket share and in terms of litigation rates).

McIntosh presents some evidence that the size of cases has grown over time, even after correcting

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for inflation; actually, I am not sure that he is entirely correct in this analysis. The key statistics that seem to support such a conclusion are average case values computed for each of five time periods; those averages show clear patterns of increase for property cases, debt cases, nondebt contract cases, and tort cases. However, my estimation of median case values (based on frequency distributions reported by McIntosh) shows a much more mixed pattern: the median tort case does increase sharply in value, the median debt case has been largely unchanged except for the earliest period which has a clearly lower median, and property cases appear to have declined in value, and nondebt contract cases show no apparent pattern at all. Thus, what may be happening in at least some areas is sharp increases at the extreme, but little change in the range of more ordinary, everyday cases.

The material in the book not previously reported by McIntosh concerns the nature of the litigants and litigation outcomes broadly defined (a section of his earlier paper in the Law & Society Review focused on type of disposition but did not try to assess which side or what kinds of litigants tend to prevail). As with the analysis of volume of litigation, the patterns of litigation participation and litigation success vary substantially over time. Excluding divorce cases, McIntosh finds that the proportion of cases initiated by individuals varies between 37% and 85% (the latter figure rises to 93% if divorce cases are included). The two peak periods seem to come at the beginning and end of the period included in the study; however, in the early period, debt and property cases predominated and these virtually disappeared by the latter period to be replaced by torts and domestic relations. When McIntosh looks at other categories of litigants (merchants, transportation and manufacturing firms, etc.), he finds comparable patterns of variation and change in the frequency and types of litigation initiated. While McIntosh conducts parallel analyses for defendants and for party configuration, those analyses are hampered in later years by the invisible insurance company defending tort cases (a problem that McIntosh acknowledges at a number of junctures). In his examination of litigation outcomes, McIntosh finds that disposition through a contested hearing or trial has never been the dominant pattern in St. Louis, though the relative frequency of such dispositions has declined substantially in the twentieth century; this pattern varies somewhat across types of cases, though the general conclusion that informal methods are the dominant form of disposition appears justified. When McIntosh traces over time patterns of winning either at trial or by default for two classes of litigants, individuals and merchants, he finds that the success rate for individual plaintiffs has changed little over the time period, even though the kinds of cases brought have changed dramatically; in contested cases, merchant plaintiffs seem to have a higher success rate than do individual plaintiffs, but this may reflect a combination of the kinds of cases brought and a more careful selection of which cases to actively contest. A parallel analysis of the success of defendants adds transportation and

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manufacturing companies as a category of litigant; all three groups show a moderate pattern of improving success over time, though consistently defendants lose more cases than they win.

McIntosh's efforts to link changing patterns in litigation to social and economic conditions is reasonably convincing. The reader will tend to ask whether similar patterns of litigation change could be found in cities with different patterns of social and economic development. As a test of a theory of litigation change, McIntosh does not have a specific rationale for why St. Louis represents a particularly important "case" for analysis (and in fact the selection of St. Louis was probably a matter of convenience rather than a conscious research design decision). The multivariate analysis in Chapter 7 is intended to avoid these kinds of problems with regards to the key variable of litigation rate; however, while this analysis is well-done, it seems out of place given the style and content of the rest of the book. The most novel aspect of that quantitative analysis is the effort to incorporate into the statistical model indicators of available court capacity as suggested by functional change theory delineated in Chapter 1; that is, what is the effect on litigation rate of the ready availability of a court response? Interestingly, contrary to his expectations, McIntosh finds that litigation rate is inversely related to available court capacity. (One striking omission throughout the book, with the exception of Chapter 7, are inferential statistical tests; given the relatively small samples and subsamples, it is not at all clear which differences are "real" and which simply reflect normal sampling variations.)

In summary, McIntosh has provided us with a comprehensive report of his extensive research into litigation patterns in St. Louis over a 150 year period. THE APPEAL OF CIVIL LAW breaks new ground in some areas (e.g., more detailed analyses of case outcomes, the roles of various types of litigants, etc.) and reinforces previously reported patterns in others. The strength of the book lies more in the empirical analysis that is presented than in major theoretical advances. That empirical analysis will set the norm for historical studies of litigation patterns in other settings.