COURT SYSTEMS AND LAWsome issues, move to a federal court. Such ‘‘forum
shopping’’ seems a travesty to those accustomed to
single systems. Yet the United States has more a
single system than have many European countries.
In those countries, there are often two sets of
courts—ordinary courts that try the vast majority
of civil cases, and a second set of administrative
courts for those who have quarrels with the gov-
ernment or administration. In the United States
most regular courts can handle any case that comes
before them (though there are many specializa-
tions), and ultimately, the U. S. Supreme Court sits
at the top as the final arbiter of law (considering
constitutional questions especially important and
above all). Nor, it should be added, are courts
entirely separate systems. They are dependent for
salary and other resources on what Congress and
legislatures will provide, and they do not appoint
their own numbers. The U. S. Supreme Court is
indeed supreme on law, but it is in no sense the
apex of a bureaucracy that can appoint and disci-
pline members of lower courts. Further, it is basi-
cally passive, waiting for cases to be brought to it
when there is a ‘‘case or controversy,’’ thus severe-
ly limiting its ability to act autonomously as a
conscience of the nation. Often citizens gnash
their teeth as the U. S. Supreme Court refuses to
hear a case or decides it on the narrow issue that
happens to have been presented to it. In that
sense, the entire legal system is the property of the
lawyers and what they choose to present to the
courts, a situation vastly different from what we
find in civil law systems.
The impact of lawyers in common law systems
is greater than in civil law and indeed in any other
system known to the world. Two major factors
help account for lawyer dominance. One is the
dependence on case law. Although legislation and
statutes are basic sources of law, the necessity for
interpretation and application to particular cases
places enormous power in the hands of courts. If
all legal systems require a strong sense of certainty,
then that certainty is provided in common law
systems by the majestic procession of cases, wheth-
er simply confirming one another, adding details,
or overruling contradictory cases. To argue a case
in an American court is to recite cases, and if there
are enough of them, lawyers and judges feel the
outcome can be considered settled. On the other
hand, civil law systems depend on codes as enacted
by revolutionary regimes, which codes are felt to
be the ultimate source of law, supplemented by
legislation that is still felt to be a kind of supple-
ment to the code. In a sense, the code is thought to
settle the matter of certainty with little need for
lawyers to interpret it. (This is less true in Germany
where lawyers play a larger role.)But in addition, especially in America, the
model of the triad is felt to be basic. A court case
consists of two adversaries who argue before a
(one hopes, neutral and just) judge. The emphasis
is on the adversarial process itself, a situation that
produces not necessarily ‘‘truth’’ but rather a vic-
tory for one side. Lawyers play the key role, a
matter that often leaves the outcome to the skill of
the lawyers as much as to other features of the
case. The judge is felt, if not to be neutral, at least
to be passive, waiting for lawyers to present objec-
tions or evidence as they wish. If a lawyer chooses
not to present a piece of evidence or simply sloppi-
ly forgets to do so, the judge cannot intervene to
instruct the lawyer on what he has left out. In civil
law systems, the judge, while a mere civil servant,
has more power to direct the course of the trial,
assuming what is often spoken of as an ‘‘inquisitorial
style.’’ Given the major role that lawyers play in
common law systems, it is important to give atten-
tion to how that role is played out. Since data are
more complete, we shall use U.S. sources. Howev-
er, comparable rates of increase for most catego-
ries are found in Canada and Great Britain (see
Galanter 1992). This is not meant to deny the
differences, especially cultural variations, in those
countries (see Atiyah and Summers 1987).DOMINANCE OF LAWYERS IN COMMON
LAW SYSTEMSIn spite of their widespread influence and
frequently very high income, lawyers in America
are not a happy lot. They are not esteemed (a
Gallup Poll found that 46 percent of respondents
rated lawyers ‘‘low’’ or ‘‘very low’’ in honesty and
ethical standards, just barely above used-car sales-
men). A survey by the California Bar Association
in 1992 reported that 70 percent of those polled
said they would choose another career if they
could. Even more—75 percent—confessed that
they would not want their children to become
lawyers. Other studies report that lawyer job satis-
faction is dropping, along with much higher levels