In the spring of 1998, the University of Wisconsin Law School sponsored a multidisciplinary conference to assess the impact of perhaps the most visible, widely cited, and influential article ever published in the law and society field: Marc Galanter's (1974) “Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Legal Change.” In that article Galanter attempts to explain the outcome of trial court litigation in essentially structural terms. He discusses “the way in which the basic architecture of the legal system creates and limits the possibilities of using the system for redistributive change.” Galanter divides parties into “one shotters” and “repeat players.” A one shotter is a person, business, or organizational entity that deals with the legal system infrequently. The one shotter's claims are too large (relative to their size) or too small (relative to the cost of remedies) to be managed routinely and rationally, but a one shotter's interest in winning a particular case is very high.

This investigation examines the success of various types of litigants appearing before the U.S. Courts of Appeals from 1925 to 1988. The analysis parallels the earlier studies by Songer and Sheehan (1992) and Wheeler et al. (1987) that applied the core concepts introduced by Galanter's groundbreaking analysis of why the “haves” come out ahead to study litigant success on the U.S. Courts of Appeals and state courts of last resort. The findings suggest that repeat player litigants with substantial organizational strength (“haves”) are much more likely to win in the federal courts of appeals than one-shot litigants with fewer resources. The “haves” win more frequently in published decisions, even after controls are introduced for the ideological makeup of the panel. The advantage in appellate litigation enjoyed by repeat player “haves” is remarkably consistent over time. In particular, the U.S. government has compiled an impressive record in these courts by dominating opposing litigants over the 64-year period of analysis.

We examine whether Galanter's repeat player (RP) concept helps in deciphering the law-related behavior of Russian enterprises. We adapt the RP concept to the Russian context defining the Russian repeat player (RRP). Using data from 328 enterprises, we examine whether RRP-ness explains the use of protokols of disagreement, petitioning to freeze assets, contractual prepayment, and litigation activity. RRPs are very different from Galanter's RPs, generally exhibiting less aggression and innovativeness, but suing other RRPs frequently. Examination of factors other than RRP-ness suggests the presence of lawyers is important in determining law-related activity, a result not necessarily expected in Russia.

This article expands upon the idea that repeat players influence the development of law by settling cases they are likely to lose and litigating cases they are likely to win. Through empirical analysis of judicial opinions interpreting the Family and Medical Leave Act, it shows how the rule-making opportunities in the litigation process affect the development of law and the judicial determination of statutory rights. In addition, the article explains how early judicial opinions might influence later judicial interpretations of the law. Although individuals may successfully mobilize the law to gain benefits in their disputes, that success often removes their experiences from the judicial determination of rights, limiting law's capacity to produce social change. This paradox of losing by winning separates the dispute resolution function of courts from their lawmaking function and raises questions about the legitimacy of law.

In 1974, Marc Galanter examined the strategic role of public interest lawyers in helping the “have nots” come out ahead in the legal system. Galanter argued that, to become agents for social change, lawyers must recognize that their role as advocates extends beyond the courtroom into the implementation process (Galanter 1974:151). This article analyzes the efforts of one group of public interest lawyers—those working in Legal Services agencies dedicated to law reform—to influence the implementation of redistributive programs for a particular group of “have nots”: homeless families or those on the brink of losing their housing. Based on my studies, I argue that by skillfully combining adversarial legal tactics with collaboration, poverty lawyers can transform judicial decisions into “symbolic resources” to leverage the implementation of redistributive remedies. When the reform lawyers have the authority to participate in the process of administrative rule making during the implementation process, they can reshape the norms and organizational infrastructures within state agencies.

Marc Galanter's 1974 essay, “Why the ‘Haves’ Come Out Ahead,” portrayed large bureaucratic organizations as the archetypal repeat players in the legal system; Galanter's account, however, devoted relatively little attention to the distinctive legal capacities of organizations as organizations. This article extends Galanter's analysis by considering the ability of large bureaucratic organizations to “internalize” legal rules, structures, personnel, and activities. Specifically, we posit that the relationship between law and organizations has undergone four interrelated shifts in recent years: (1) the legalization of organizational governance, (2) the expansion of private dispute resolution, (3) the rise of in-house counsel, and (4) the reemergence of private policing. These processes interact with one another to transform the large bureaucratic organization from being merely a repeat player in the public legal system to being a full-fledged private legal system in its own right. Although “have not” groups may gain some short-run advantages from the introduction of citizenship norms into the workplace, the organizational annexation of law subtly skews the balance between democratic and bureaucratic tendencies in society as a whole, potentially adding to the power and control of dominant elites.

Sociolegal theories of why “haves” might come out ahead in the legal system have emphasized legal mobilization and the use of legal representation. Small group research points to the influence of cultural capital on social expectations and interpersonal processes of social influence and deference as another potential explanation for status advantage. This study tests these explanations in the context of state income tax audits. The results indicate that taxpayers owning larger businesses are more likely to mobilize legally, but that legal mobilization does not affect audit outcomes. Instead, taxpayers with high occupational prestige and the owners of family businesses are more likely to come out ahead in tax audits, pointing to a cultural capital explanation of why the “haves” come out ahead. Prestige effects, however, are concentrated among taxpayers who represent themselves; when tax practitioners are involved in audits, status advantages disappear. Further analyses indicate that tax practitioners level the playing field by disrupting social influence and deference processes.

In 1974, Marc Galanter published a paper entitled “Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Legal Change” in which he analyzed the limits of a legal system, such as that of the United States, to achieve redistributive outcomes. He traced the limits to features of the U.S. legal system's “basic architecture.” The specific features to which he referred were a series of structural dualisms or institutional contradictions that permitted symbolic claims to universalism, public authority, and equality to coexist with particularism, private power, and inequality.

Since Marc Galanter (1974) formulated the hypothesis that parties with greater resources, usually “repeat players,” fare better in courts and are better able to influence legal change than “one shotters,” numerous scholars have provided empirical insights into the extent to which stronger parties enjoy advantages in litigation. Studies of U.S. trial courts provide evidence that “haves” do tend to come out ahead (Galanter 1974; Owen 1971; Wanner 1975). Governments generally have been more successful in litigation than businesses and other organizations, which in turn have been more successful than individual litigants. Greater resources allow the “haves” to hire the best lawyers and incur the expenses for extensive discovery, expert witnesses, appeals to higher courts, and other activities. As repeat players, they can structure their interactions with the courts by carefully selecting cases to pursue, engaging in forum shopping, settling cases when the prospects appear low for success at trial or on appeal, implementing comprehensive litigation strategies, and developing favorable legal precedents.

This research note examines the relations between judicial preferences, institutional concerns, and litigation outcomes. I found that in litigation before the Israeli High Court of Justice, the “haves” enjoyed only a limited advantage over “have nots” in litigation outcomes. I also found that when “have nots” were represented by legal counsel, the “haves” did not come out ahead. Ideological propensities of judges and considerations of institutional autonomy can ameliorate, to some extent, the inherent inferiority of “have nots” in litigation. It was also found that the mechanisms that worked in favor of “have nots” operated not only in litigation that reached final judicial disposition but also when the litigation was disposed through out-of-court settlements.

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. 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. Occasionally at one of these family gatherings, someone even presents a paper that suggests it might be dangerous to associate with economists (Rostain 1998).

Marc Galanter's 1974 article “Why the ‘Haves’ Come Out Ahead” has been exceptionally influential, and for good reason. Its analytic elegance and power, particularly in its famous distinction between repeat players and one-shotters, have illuminated many aspects of the legal process. Yet the article's influence also stems at least in part, I suspect, from the tension between its two related but very different motifs. It predicted that resource-rich parties will generally fare better than other parties in the legal system, and provided a coherent theoretical account of why: because such parties are more likely to be “repeat players” that have the organizational and resource capacities to “play for rules” over the long term. The “Haves” article also, on this basis, provided a coherent theoretical account of how the fates of “have not” parties in the legal system may be improved: by upgrading their capacities for longer-term strategic action, principally through increasing the funding of legal services, improving access to legal knowledge and skills, and organizing diffuse “have not” classes as repeat players. In these and other ways, “have nots,” he suggested, may achieve some of the organizational and structural advantages held by the “haves” (1974:140–44). This subtext might have had its own subtitle to “Why the ‘Haves’ Come Out Ahead,” such as “And How the ‘Have Nots’ Can Organize to Come Out Less Far Behind.”

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.

The “Haves” paper was written in a different age. Its core was composed in the fall of 1970 when I was a fellow at the Yale Law School's remarkably fruitful soft-money Program in Law and Modernization. This was before the ascent of law and economics, before the emergence of critical legal studies and its progeny, before the promotion of alternative dispute resolution, before the arrival of the new legal journalism and the informational opening of legal world in 1979. The Law and Society Association, founded in 1964, was largely a support group dedicated to publishing the Law & Society Review (then in volume 5) and had not yet held a national meeting.