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Ideology, Scholarship, and Sociolegal Change: Lessons from Galanter and the “Litigation Crisis”

Published online by Cambridge University Press:  01 July 2024

Robert L. Nelson
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A prominent feature of the landscape of American sociolegal research is Marc Galanter's scholarship on the civil justice system. Galanter began his academic career in anthropological research on India, and his studies of the American legal system reflect these origins. Like an anthropologist at work in his native land, Galanter's contribution has been to illuminate the properties of the American legal system as a social whole. No other scholar has so effectively comprehended the organic character of American law—how the operation of the formal rules system depends on the strategic interplay among actors in the system, the significance of indigenous or embedded systems of normative ordering that pervasively emerge in the shadow of the formal legal system, and the relationship between the law as a system of symbols and a system of bargaining endowments. “Why the Haves Come Out Ahead” (Galanter, 1974) remains the most ambitious and comprehensive attempt to explain the relationship between the litigation system and patterns of inequality in American society. Not only did the article develop a useful set of grounded categories for social actors in the system (the famous distinction between “repeat players” and “one-shotters”), it also specified the mechanisms through which these social categories could achieve dominance in the system. In broad sweep, it suggested those strategies of legal change that would have the greatest redistributive effects on society, as well as the limitations that would confront attempts at social change through the law. Given the nature of this early accomplishment, it seemed natural when Galanter (1983b) reasserted his role as the preeminent commentator on the civil justice system with “Reading the Landscape of Disputes.”

Type
Research Article
Information
Law & Society Review , Volume 21 , Issue 5 , 1988 , pp. 677 - 693
Copyright
Copyright © 1988 by The Law and Society Association

Footnotes

I would like to thank Bill Felstiner, Ray Solomon, Steve Daniels, Dave Trubek, Terry Halliday, John Donohue, Laura Kalman, and Marshall Shapo for helpful comments on an earlier draft.

*

In 1985, 46 states enacted some kind of tort reform legislation; in 20 of these, the reforms were termed “significant” by an insurance industry reporter. In 1986, 21 of the 38 adjourned legislatures had enacted “significant” reforms (Casey, 1986: 14). We must be aware that these figures no doubt oversimplify a very complex phenomenon. The political success of the tort reform movement must be measured according to the resources devoted to it and the proportion of legislative goals achieved. An in-depth examination might reveal that the reform effort has not been as successful as it appears on the surface and that Galanter's work played a significant role in frustrating these efforts. Nonetheless, with this caveat in mind, the broad lines of the success of the tort reform campaign are clear.

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