This month’s piece of classic scholarship comes from the sociology of law. Thirty years ago, William L.F. Felstiner, Richard L. Abel, and Austin Sarat published a piece in the Law & Society Review titled "The Emergence and Transformation of Disputes: Naming, Blaming, Claiming …"
The authors wanted to trace how experiences transform into legal disputes. And they identified three key steps along the way:
- Naming — the party recognizes that she’s been injured, or, as the authors put it, recognizes an experience as injurious;
- blaming — she figures out that someone else is responsible for her injury; and
- claiming — she communicates that conclusion to the faulty party. If the faulty party does nothing about her claim, then it evolves into a dispute.
As the authors point out, one of the interesting things about this process is that not all grievances evolve into lawsuits. They refer to this phenomenon as "grievance apathy."
We know that only a small fraction of injurious experiences ever mature into disputes. Furthermore, we know that most of the attrition occurs at the early stages: experiences are not perceived as injurious; perceptions do not ripen into grievances; grievances are voiced to intimates but not to the person deemed responsible.
In other words, grievance apathy makes the world go ’round. Not every "injurious experience" needs to wind up in a court of law. And we would not want them all to. In fact, the authors identified, even at the time, the problem that that lawyers often "’create’ at least some of the needs they satisfy."
But they did not predict the extent to which, today, entrepreneurial class action attorneys have turned that social process on its head. In the course of looking for claims on which they can make money, they will identify entities with deep pockets (blaming), and then come up with a reason why they’ve done some injury (naming). They’ll then look for someone who has suffered the pre-identified "injury." And, if that person’s resolve wavers (that is, they begin to succumb to "grievance apathy"), they’ll do their utmost to keep the plaintiff angry.
The problem is that manufactured conflicts rarely lead to good lawsuits. Those lawsuits tend to be a waste of time and money, for all concerned. They may very well focus on harms that are not really harms. And they can lead to inordinately complicated "solutions," or duplication of previous solutions (with the added cost of judicial administration and attorneys fees), or cases that–if won–would harm innocent third parties.
Now, despite what some might argue, this does not mean that there is no such thing as a good class action. There are some instances where there will be clear-cut harms that are too small to bring as individual lawsuits, and where the defendant chooses not to offer a remedy. Those instances are why we have Rule 23. But, and this is a large but, Felstiner, et al.’s analysis does suggest that courts have good reason to be suspicious of manufactured lawsuits–in which a lawyer comes up with his case first and his plaintiff as an afterthought. Because, in those cases, there very well might be a reason that "grievance apathy" took hold.