Public Policy Center, University of Nebraska
Date of this Version
2008
Abstract
It is the case that civil justice problems constitute the bulk of courts’ work in both the state and federal legal systems (see, e.g., Court Statistics Project, 2006; U.S. Courts, 2007). Nevertheless, a decision rendered by a jury (or a judge) takes place in only a relatively small percentage of civil disputes. There are exponentially more civil disputes resolved outside of court than are resolved via jury verdicts (see, e.g., Galanter, 1983, 1993, 1996; Miller & Sarat, 1980–1981; Trubek, Grossman, Felstiner, Kritzer, & Sarat, 1983), a state of affairs true for the UK as well as the US (Pleasence, 2006). Hersch’s (2006) analysis of nearly 3,800 federal civil cases shows even a litigant’s request for a jury trial rather than a bench trial (regardless of whether it emanates from the plaintiff or the defendant) in trial-eligible cases is more likely to result in the parties’ out-of-court settlement than it is to result in a jury verdict.
The empirical reality, thus, is that juries play only a limited—it is fair to say, a relatively minor—role in civil dispute resolution. Yet jury research has dominated the scholarship of the psychology and law community virtually since the revival of psycholegal research in the 1970s, and the pattern of focusing on jury matters continues today. This chapter is a call for psycholegal scholars to study civil justice matters beyond the context of litigation and the courts, both to allow us to better understand the resolution of civil issues in the litigation/court contexts and to better understand the larger institutional (and sometimes societal) contexts in which civil disputes materialize and are most often resolved (see Felstiner, Abel, & Sarat, 1980–1981; Galanter, 1983, 1993, 1996; Kritzer, Vidmar, & Bogart, 1991; Trubek et al., 1984; Trubek, Sarat, Felstiner, Kritzer, & Grossman, 1983).
An area of psycholegal research that has provided significant insights into civil disputes is the different conceptualizations of ‘‘justice.’’ Over the last fifty years or so, there has been a great deal of commentary and research into various psychosocial constructs of justice. In this chapter we focus on the more prominent justice theories, that is, distributive, procedural, restorative, and retributive justice (e.g., Tyler, Boeckmann, Smith, & Huo, 1997).
Briefly, distributive justice is concerned primarily with the perceived fairness of the outcome of a given proceeding, whether that proceeding is judicial, quasi-judicial (e.g., arbitration, mediation, or some other form of dispute resolution), or entirely non-judicial in nature (e.g., legislative decisions that affect distribution of resources). Procedural justice, in contrast, is concerned with whether the procedures used in a given process are considered fair by the participants, and is similarly not restricted to judicial settings. Restorative justice is concerned, as the name implies, with restoring an injured party to his or her pre-injury state and helping the injuring party recognize and redress the injurious nature of his or her acts. Finally, retributive justice looks at the psychology of responding to harms that have been inflicted. Recent research indicates that retributive and restorative justice principles are, as with the distributive and procedural justice contexts, applicable outside the judicial context (e.g., Morrison & Ahmed, 2006).
In this chapter, we will briefly discuss justice constructs and offer examples of important questions outside the courtroom litigation realm that we believe present opportunities for psycholegal scholars to more fully develop our understanding of civil justice.
Comments
Published in B. H. Bornstein et al. (eds.), Civil Juries and Civil Justice (Springer, 2008), pp. 257–272. Copyright © 2008 Springer Verlag. Used by permission.