Family Gatherings and a Dirty Little Secret of the Law and Society Association

Whenever I attend a Law and Society Association function, I get the image of a family gathering. Whether it is the annual meeting, or a "birthday" celebration such as this symposium commemorating the 25th anniversary of Marc Galanter's classic work "Why the `Haves' Come Out Ahead" (Galanter 1974), the occasions always take on an air of kinship, with people engaging their academic forebears, siblings, and progeny in discussions about their latest projects. Although the family embraces many diverse lineages, clearly the black sheep of the family are the economists. The few brave economists who dare to attend can usually be found off in a group, amusing themselves with some recent empirical work or the latest development in game theory.1 In presenting our work on panels, we are often (but not always) met with polite silence or with questions asking us to defend some part of Richard Posner's work, even if our own work is critical of the traditional economic analysis of law.2 Occasionally at one of these family gatherings, someone even presents a paper that suggests it might be dangerous to associate with economists (Rostain 1998 ). At this family gathering, it seems that all the progeny of Marc Galanter's famous work are well represented. We have empirical work in criminal justice and political science testing the power of his predictions in administrative processes (Kinsey & Stalans 1999), state courts (Farole 1999), federal courts (Songer et al. 1999), and even Russian commercial practices (Hendley et al. 1999). We also have empirical and theoretical work in law and sociology extending his work to the litigation process (Albiston 1999) and exploring whether people commonly know that the "haves" come out ahead in legal processes and what the implications of such knowledge are for the legitimacy, power, and durability of the law (Ewick & Silbey 1999). Finally, we have theoretical work in sociology discussing the implications of the internationalization of legal processes in organizations within the context of Galanter's work (Edelman & Suchman 1999) and an applied piece in law analyzing the efforts of public interest lawyers to represent the homeless in light of his insights (Harris 1999). The discourse among these academic siblings at this birthday party has been both productive and cordial. As so often happens at such gatherings, however, the event is an occasion not only to talk with one's relations about work and play, but also to learn family secrets, perhaps even disturbing secrets. I would like to take the opportunity of this family gathering to share one of the dirty little secrets of the Law and Society Association: that a very good case can be made that Marc Galanter is the father of the progressive wing of the law and economics movement. All the evidence is circumstantial, but a good case can be made for his paternity based on all the traditional indicia by which such things are judged. Certainly in his classic article, Galanter embraced fair economics at about the time the progressive wing was conceived. His work in "Why the `Haves' Come Out Ahead" relied on optimization theory as well as a game theoretic framework to model the strategic advantages that repeat players enjoy over one-shot players (Galanter 1974:97-104). He has continued to flirt with economics throughout his career (Galanter 1987, 1988, 1996) and has even written some of his most important recent work with an economist (Galanter & Palay 1990, 1991, 1993). Finally, a convincing argument can be made that the modern scholarship of the progressive wing of the law and economics movement, with its reliance on game theory (Ayres & Gertner 1989; Dau-Schmidt 1992) looks much more like Galanter's work in "Why the `Haves' Come Out Ahead" than it does like the early work of any of the other candidates for paternity (Calabresi 1970; Cooter 1982). Given their possible relation to Galanter's work, perhaps economists need not be so sheepish within the Law and Society Associations "Why the `Haves' Come Out Ahead" is a classic exercise in social science analysis that well deserves its place as a touchstone for much of the law and society literature. …