Litigation in the Federal Courts: A Comparative Perspective

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Abstract
Courts, unlike most other political institutions, depend almost exclusively on the actions of others to initiate proceedings which comprise their agendas of decision-making. Formal rules and custom proscribe the independent searching out of cases by American courts. These courts may, in a sense, invite litigation by the way they handle certain kinds of issues, but they must await the development of real “cases and controversies;” and, more importantly, they must await private choices which may or may not bring these cases and controversies to court. Recent years have brought some recognition of the importance of such private choice-making activity in setting the boundaries of the policy-making roles which the courts can play. As Donald Black (1973:126) argues, “[t]he day to day entry of cases into any legal system cannot be taken for granted. Cases of alleged illegality and disputes do not move automatically to legal agencies for disposition and settlement.”

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