A Classic at 25: Reflections on Galanter's 'Haves' Article and Work It Has Inspired

This piece comments on Galanter's article "Why the `Haves' Come Out Ahead" and on articles in this symposium that extend Galanter's thesis or put it to an empirical test. It suggests, first, that none of this work goes very far in explaining why the "haves" do better than the "have nots" in social or even legal life; second, that it has yet to be shown that repeat playing is important to litigation; and third, that despite the passage of 25 years, it is still not clear that in litigation the "haves" come out ahead. Join me in a thought experiment. Imagine you are teaching a graduate seminar on law and American society and you ask your students to write papers on "Why the `Haves' Come Out Ahead." What would those papers look like? I see one of my pretend students turning in a paper on such institutions as rules of inheritance that allow the "haves" to transfer their wealth across generations and an educational system, beginning with the home, which ensures that the children of the "haves" will, for the most part, acquire substantially more in the way of social capital as they grow up than the children of the "have nots." Another student would focus on the invention of the corporation, the ways in which the corporate form allows wealth to be amassed, and the power this form gives to those who control it. A third would write generally on the power of money in society, creatively focusing on the health implications of being richer rather than poorer and citing research that relates personal wealth to nutrition, stress levels, blood pressure, and even to the length of the efforts made to resuscitate those whose hearts have stopped. I, of course, would be disappointed, for I would be aware I had not communicated the assignment I intended. "No, no," I would say, "I didn't want to know why the `haves' are better off generally, I just wanted you to tell me why the `haves' come out ahead when the law is involved." My students, barely hiding their annoyance at having to repeat the assignment, would respond with papers focusing on the leverage that campaign contribution laws give the wealthy with Congress and the executive branch, on the influence of lobbyists, on the ability of high-priced lawyers to find loopholes in statutes, and on the way the federal system allows corporations to play one state against another as they seek tax breaks and favorable labor laws. I would not have the heart to tell my students to again rewrite because what I was really interested in was why the "haves" do well in court. The point of the thought experiment is that doing well in court, the core of what Marc Galanter sought to explain in his classic article "Why the `Haves' Come Out Ahead: Speculations on the Limits of Legal Change" (1974) has relatively little to do with the power of the "haves" and why they do so well in social life. Twenty-five years later, we can see that in some ways, Galanter's article was a period piece. The article was written at a time when much of the most interesting law and society work was court-centered or, otherwise, focused on dispute resolution, and it drew much of its power from the way Galanter masterfully assembled the extant literature and brought to the fore, in explaining who prevails in court, a dimension that previously had not been salient: whether the parties in litigation were repeat players in the litigation game or only involved on a one-shot basis. It was a propitious time to write about the limits of lawsuits as vehicles for legal change. The Supreme Court's transformation from the Warren Court to the Burger Court was a recent accomplishment, and liberal social scientists, who dominated among students of law and society, were becoming painfully aware that not only did litigation often fail to empower the impoverished, but also that many Warren Court decisions that had seemed to help the "have nots" had, in fact, had little impact on the quality of their day to day lives. The time was ripe for someone to explain why, in the long run, litigation might actually reinforce the power of the "haves" or, at least, work no dramatic changes in the status quo. …