Academic journal article Law & Society Review

Do the "Haves" Still Come out Ahead?

Academic journal article Law & Society Review

Do the "Haves" Still Come out Ahead?

Article excerpt

In the spring of 1998, the University of Wisconsin Law School sponsored a multidisciplinary conference to assess the impact of perhaps the most visible, widely cited, and influential article ever published in the law and society field: Marc Galanter's (1974) "Why the 'Haves' Come Out Ahead: Speculations on the Limits of Legal Change."1 In that article Galanter attempts to explain the outcome of trial court litigation in essentially structural terms. He discusses "the way in which the basic architecture of the legal system creates and limits the possibilities of using the system for redistributive change." Galanter divides parties into "one shotters" and "repeat players." A one shotter is a person, business, or organizational entity that deals with the legal system infrequently. The one shotter's claims are too large (relative to their size) or too small (relative to the cost of remedies) to be managed routinely and rationally, but a one shotter's interest in winning a particular case is very high.

A repeat player, on the other hand, has had, and anticipates having, repeated litigation. Repeat players have low stakes in the outcome of any particular case and have the resources to pursue their long term interests. They can anticipate legal problems and can often structure transactions and compile a record to justify their actions. They develop expertise and have access to specialists who are skilled in dealing with particular types of cases or issues. They enjoy economies of scale and encounter low start-up costs for any particular case. For example, an automobile manufacturer may anticipate challenges to a particular part or system and thus develop legal strategies and invest in research to defend itself. Legal strategies can be modified and developed from one case, or group of cases, to the next. Repeat players can also benefit from informal relations with (and "educate") institutional incumbents such as judges, hearing examiners, and court clerks. The credibility and legitimacy that flows from repeated contacts may help to sustain a repeat player's claims.

Repeat players may not settle a particular case when a one shotter would do so. If they give in too easily in one case, it may affect the demands made in the next case. Yet they can play the odds and maximize gain over a series of cases even while suffering maximum loss in some. Seldom will one case be critically important. As a result, they consider questions of precedent over the long run and are able to "play for rules." Repeat players may settle (often with low visibility) cases where they expect unfavorable verdicts or rule outcomes. They can trade symbolic defeats for tangible gains. One shotters, by definition, are necessarily more interested in immediate outcomes.

Galanter also focuses on litigation configurations. One shotters may sue one shotters. Such cases often are between parties who have some ongoing relationship and who are disputing over some indivisible good. Cost barriers will ration access to the legal system in many of these cases. Repeat players may also sue each other. The sanctions of long-term continuing relations (which they wish to maintain), however, tend to minimize such cases. Mediation, arbitration, and settlement may be better options. When repeat players are contesting issues of principle or individual rights, however, some authoritative resolution may be necessary and the risks or costs of defeat may have to be endured. Likewise, governmental units may find it difficult to settle highvisibility cases because of the unfavorable publicity likely to be generated. Of course, there are also disputes between repeat players who have no relationship to protect.

Perhaps the remaining two litigation patterns in Galanter's matrix are more interesting. Repeat players may sue one shotters. Sometimes these cases take the form of stereotyped mass processing, bearing little resemblance to full-dress, adversarial litigation. …

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