Felstiner, William L.F., Richard L. Abel and Austin Sarat. 198081. "The Emergence and Transformation

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Felstiner, William L.F., Richard L. Abel and
Austin Sarat. 1980-81. "The Emergence and
Transformation of Disputes Naming, Blaming,
Claiming." Law and Society Review 15, No. 3-4
631-654.
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Main Points

• Litigation is not an automatic result of a
  perceived injury.
• The path to litigation can be thought of as
  composed of 3 stages and, at any stage, a party
  could choose not to eventually invoke litigation
  for a variety of reasons

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Naming

• An injury must be recognized as a wrong that the
  individual has suffered
• Galanter (1983) called this a perceived
  injurious experience
• Must perceive you have been injured
• We could suffer many injuries we do not perceive
• e.g., smoking, asbestos,
• Or are convinced by existing culture is not
  harming us
• e.g., gender roles in 17th Century

4
Naming

• An injury is named when we identify it as an
  injury
• Identification as an injury is
• Strongly influenced by existing social norms and
  prior law
• Changing as we understand and explain actions
  using scientific information

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Naming

• Failure to name an event as an injury precludes
  the possibility of litigation

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Blaming

• Attribute blame for our injury to an identifiable
  entity
• Believe that some identifiable entity caused our
  injury
• Most blamed entity would be yourself
• E.g., Cut yourself shaving fall over while
  running etc
• Historically, next was Act of God
• Natural disaster or bad luck
• E.g., Hurricane Earthquake Tree falls on you in
  forest

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Blaming

• If blaming other party for injury to you
• Based on belief they caused your injury to occur
• For example,
• University allows building to fall on you
• Romantic partner dumps you
• Professor gives unfair LGST10 exam

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Blaming

• The failure to attribute blame to an identifiable
  entity means unlikely for litigation to occur

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Claiming

• Asking blamed party that you identified to take
  responsibility for the injury you attributed to
  their actions
• Usually a request to return to former status or
  be compensated for failure to do so

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Claiming

• Some injuries are named and blamed but are not
  claimed because you do not believe that any
  positive action will result from claiming
• Ongoing relationships tend to lessen likelihood
  of claiming
• car dealers, romantic situations
• Complete strangers with no likely chance of
  re-encountering lessen claiming
• knocked over while skiing

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Consequences

• Many activities do not result in a dispute
  because they are named, blamed, and claimed and
  other party accepts responsibility as defined by
  your claim
• Person 1 Dude, you just spilled beer all over
  my couch and it will stain it. Clean it up, you
  slob
• Naming , Blaming , Claiming
• Person 2 OK
• Accepted responsibility and agreed to attempt to
  return injured party to former status

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Consequences

• Some things that harm us are not initially
  identified as injuries and do not lead to naming,
  blaming, or claiming
• 1945 This cigarette is really good for me
  because it calms me down
• 1965 This DDT really gets rid of the pests in
  the corn
• 1985 These silicon breast implants look great

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Multiple Stage Process

• Original Process
• Naming
• Blaming
• Claiming
• Constructed and framed in our own everyday
  language

• Legal Version
• Naming
• Blaming
• Claiming
• Constructed and framed in the language of law as
  it exists at that time

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Example

• Own version
• My neighbor has had my snow-blower in her garage
  since she used it last winter. I will ask her to
  return it
• Legal Version
• My neighbor failed to return my snow-blower for
  the last 5 months. The legal action of detinue
  and replevin will force her to return it.

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Consequence

• Some injuries that are named, blamed, and claimed
  are not able to be transformed into legal actions
• This is changing based on increasing knowledge
  and a changing legal system in response to social
  demands, according to Lawrence Friedman in Total
  Justice (New York, Russell Sage 1985)

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Consequences

• Litigation only deals with activities
• that are classified as injuries in a social
  context
• That are blamed on identifiable others
• That can be claimed
• That are not resolved and remain a dispute
• That can be framed in legal terms

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Consequences

• Many potential and existing injuries do not find
  their way to becoming litigation and the law
  deals with only a small and select subset of all
  forms of such events
• Litigation requires a dispute to be unresolved by
  other means before it gets to the point of
  invoking the law

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But

• Existing laws shape and define the social norms
  for constructing injuries, attributing blame, and
  recognizing the possibilities of claiming
• It is not neutral in this process

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Role of Law

• The call upon the legal system is constructed by
  decisions made by individuals and shaped by their
  social understanding of injuries and the
  resolution of disputes
• Law is constructed to deal with these unresolved
  disputes