Why the "haves" come out ahead: speculations on the limits of legal change
This influential essay by Marc Galanter (1973) identifies two key players in the legal system - one-shotters (the 'have-nots') and repeat players (the 'haves') and asks if reform could be achieved by 'have-nots' taking co-ordinated action.
Galanter's paper considers four elements of the legal system: rules, courts, lawyers and parties. Starting with parties he roughly divides these into one shotters (OS) and repeat players (RP). A one shotter is a person, or organisation that deals with legal system infrequently. They tend to have few resources. Galanter approximates one shotters with 'have-nots'.
Repeat players on the other hand, have had, and anticipate having repeated litigation. They tend to be institutions and they tend to be relatively wealthy. He identifies various layers of advantages enjoyed by different (but largely overlapping) classes of 'haves' - advantages which interlock, reinforce and shield one another. Galanter argues that 'haves' have the ability to 'play the litigation game differently from an OS' and this ability to play differently, affords the RP substantial advantage and benefits.
Galanter also looks at alternatives to official systems. These include inaction, 'lumping it'. This is done he says all the time by claimants who lack information or access, or who knowingly decide the gain is too low or the cost is too high. Costs are raised by lack of information or skill, and also include risk. Other alternatives sited are 'exit' - withdrawal from a situation, and resort to some unofficial control system. These 'appended' settlement systems often merge into the official litigation system.
He considers four types of reform - rule change, improvement in institutional facilities, the improvement of legal services in terms of quantity and quality and the reorganisation of parties. Reorganising 'have-not' parties into coherent groups that have the ability to act in a co-ordinated fashion is shown to be a way of improving their strategic position. Galanter argues that it is this change at the level of parties which is most likely to generate changes at other levels.
Subsequent studies have confirmed that 'haves' still maintain their advantage.