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Why the “Haves” Come Out Ahead: Speculations on the Limits of Legal Change

Published online by Cambridge University Press:  01 July 2024

Marc Galanter
Marc Galanter*
Affiliation:
Faculty of Law and Jurisprudence State University of New York at Buffalo
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This essay attempts to discern some of the general features of a legal system like the American by drawing on (and rearranging) commonplaces and less than systematic gleanings from the literature. The speculative and tentative nature of the assertions here will be apparent and is acknowledged here wholesale to spare myself and the reader repeated disclaimers.

I would like to try to put forward some conjectures about the way in which the basic architecture of the legal system creates and limits the possibilities of using the system ;as a means of redistributive (that is, systemically equalizing) change. Our question, specifically, is, under what conditions can Iitigation be redistributive, taking litigation in the broadest sense of the presentation of claims to be decided by courts (or court-like agencies) and the whole penumbra of threats, feints, and so forth, surrounding such presentation.

Type
Research Article
Information
Law & Society Review , Volume 9 , Issue 1: Litigation and Dispute Processing: Part I , Fall 1974 , pp. 95 - 160
Copyright
Copyright © 1975 The Law and Society Association

Footnotes

*

This essay grew out of a presentation to Robert Stevens' Seminar on the Legal Profession and Social Change at Yale Law School in the autumn of 1970, while the author was Senior Fellow in the School's Law and Modernization Program. It has gathered bulk and I hope substance in the course of a succession of presentations and revisions. It has accumulated a correspondingly heavy burden of obligation to my colleagues and students. I would like to acknowledge the helpful comments of Richard Abel, James Atleson, Guido Calabresi, Kenneth Davidson, Vernon Dibble, William L.F. Felstiner, Lawrence M. Friedman, Marjorie Girth, Paul Goldstein, Mark Haller, Stephen Halpern, Charles M. Hardin, Adolf Hornberger, Geoffrey Hazard, Quintin Johnstone, Patrick L. Kelley, David Kirp, Arthur Leff, Stuart Nagel, Philippe Nonet, Saul Touster, David M. Trubeck and Stephen Wasby on earlier drafts, and to confer on them the usual dispensation.

The development of this essay was linked in many places to a contemporaneous project on the Deployment Process in the Implementation of Legal Policy supported by the National Science Foundation. I am grateful to the Foundation for affording me the opportunity to pursue several lines of inquiry touched on here. The Foundation bears no responsibility for the views set forth here.

An earlier version was issued as a working paper of the Law and Modernization Program; yet another version of the first part is contained in the proceedings (edited by Lawrence Friedman and Manfred Rehbinder) of the Conference on the Sociology of the Judicial Process, held at Bielefeld, West Germany in September, 1973.

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