Democracy, Courts and the Information Order
European Journal of Sociology, 54 (2013) pp. 67-95
35 Pages Posted: 20 May 2013 Last revised: 11 Nov 2013
Date Written: 2013
Conventional wisdom about civil litigation, both among scholars and political actors, holds that abuse of the legal process is common, that there is too much litigation, that it is “all about the money,” and that “a bad settlement is better than a good trial.” This constellation of attitudes that emphasize the economic function of law suggests that courts are an expensive conflict resolution mechanism of last resort and that their use would be minimized in a healthy market-based democracy. In this paper we apply a new sociological framework to understand the meaning and function of civil litigation in a democratic society. We focus in particular on the democratic function of the informational characteristics of litigation that require substantial disclosure and engagement between plaintiff, defendant and third parties. We do not look to the instrumental function of information transfer - in effecting deterrence, assessing compensation or enforcing underlying rights. Instead we examine the role courts play in the maintenance and attainment of a social information order - norms and legal rules governing the sharing and withholding of information that depend on and constitute particular status relationships between actors (Ryan 2006). Using interviews and surveys of family members of victims of 9/11 about their experiences with the Victims Compensation Fund (Hadfield 2005, 2008a) and other sources, we develop a theory of the lived experience of entitlement to information in in Anglo-American legal settings with suggestions of how these ideas might translate to civil law systems.
Keywords: sociology of information, democracy, information order, civil litigation, access to justice, participatory democracy, civil procedure
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