Litigation and Inequality: Federal Diversity Jurisdiction in Industrial America, 1870-1958.

• Author: Luigs, David A.

By Edward A. Purcell, Jr. New York: Oxford University Press. 1992. Pp. x, 446. $59.

Edward A. Purcell(1) begins his book Litigation and Inequality: Federal Diversity Jurisdiction in Industrial America 1870-1958, with a letter written in 1934 from a Cleveland lawyer to his new client, the Baltimore & Ohio Railroad. The railroad had hired the lawyer to defend against several pending tort suits. The lawyer and his staff then "worked up a technic which ought to assure the best possible results";(2) the "technic" was to remove the lawsuits from state court to federal court. As Purcell explains, getting into federal court provided large corporate defendants, like a railroad, with enormous procedural and extralegal advantages over individual plaintiffs.

Litigation and Inequality focuses upon these procedural and jurisdictional rules -- such as removal, joinder, choice of forum, and amount in controversy -- that create "a grab bag of tools that parties attempt to use . . . during private litigations" (p. viii). Purcell's book also looks behind such rules to emphasize the historical and social conditions of the parties; he writes, "to truly understand [procedural and jurisdictional rules] one must persistently ask who uses them, how they use them, and what results they achieve with them" (p. viii).

Purcell ties together these two dimensions -- technical legal doctrines and the social conditions of the litigating parties -- into a unitary concept that he calls a "social litigation system" (p. 3). The author defines a social litigation system as a pattern of regularly recurring legal disputes involving parties with similar social characteristics who regularly litigate the same types of issues and legal rules. Although a social litigation system may sound like an abstract concept, a look to today's highly specialized legal profession would probably identify groups of lawyers who consistently litigate certain types of claims between similar types of parties and rely over and over on certain legal rules. Purcell observes that these systems are perhaps more social than legal:

We commonly recognize, at least implicitly, that distinct types of litigation

differ as much in the social conditions that shape them as they do

in the legal issues that they present. Antitrust litigation in the federal

courts is profoundly different from landlord-tenant litigation in the housing

courts of large cities. Securities actions have little in common with

deportation proceedings, and suits involving personal injuries are quite

different from school desegregation cases.... Yet in spite of the various

social differences, we generally identify such types of litigation, as I have

just done, by their legal rather than their social characteristics. The former

may not always and for every purpose be the most useful way to

categorize, examine, and understand them. [p. 3]

Purcell's book is a history of one of these social litigation systems. His goal is to use the concept of a social litigation system to describe and explain a certain type of recurring historical behavior. Purcell hones in on the United States of the 1870s to the 1940s, the "Age of Industrial America," a time of rapid economic development and the rise of powerful national corporations. These social conditions led to the social litigation system that Purcell analyzes, which he calls the "system of corporate diversity litigation." Such a system consisted of two types of claims by individual plaintiffs against national corporations: (i) negligence actions against manufacturers and railroads, usually by injured employees, and (ii) contract claims against insurance companies, usually by claimants under small life, health, and disability policies.

Purcell identifies two basic "mainsprings" of the system of corporate diversity litigation. First, the individual plaintiffs and corporate defendants had drastically unequal resources, and this wealth disparity affected almost every aspect of the system. Second, the parties invariably wanted to litigate in different forums. Federal courts provided corporations with a variety of advantages, while individual plaintiffs were usually...