Vol. 14 No. 1 (January 2004)

IN LITIGATION DO THE "HAVES" STILL COME OUT AHEAD? Herbert M. Kritzer and Susan Silbey (Editors). Stanford, CA: Stanford University Press, 2003. ISBN: 0-8047-4734-2. Price: $29.95 (paper). 439pp.

Reviewed by Cynthia L. Cates, Political Science Department, Towson University. E-mail: ccates@towson.edu

As hard as it may be to believe, in the early 1970s, Marc Galanter's "Why the 'Haves' Come Out Ahead," "was 'rejected by all the leading law reviews and a couple of political science journals as well.'" (Galanter quoted in Kritzer and Silbey, p.3) Indeed, the piece remained homeless until Galanter, as editor of the LAW & SOCIETY REVIEW, published it himself in 1974. The thirty years that have followed have proven that move a shrewd editorial decision. "Why the 'Haves' Come Out Ahead" continues to provoke scholars and students of the judicial process in ways no other work has.

One proof of that is IN LITIGATION: DO THE "HAVES" STILL COME OUT AHEAD, an edited volume of statistical and case studies testing Galanter's hypotheses over a number of dimensions. In general, the studies support the notion that "haves" do maintain the advantage, sometimes overwhelmingly, sometimes more subtly. Part One of the book is a brief introduction by the editors, followed by a reprint of Galanter's work. Briefly, Galanter begins by roughly dividing the litigant world into one-shotters (OS) and repeat players (RP). One shotters are those who only occasionally employ the judicial process - perhaps in a divorce proceeding, an argument with a neighbor, or an automobile accident. Repeat players, on the other hand, are those involved "in many similar litigations over time" (Galanter 1974: 97). Obvious examples of RPs would be criminal prosecutors, insurance companies, and landlords. Notably, one-shotters tend to be individuals, they tend to have few resources, and they tend to litigate for immediate outcomes-i.e., they need compensation for medical expenses right away, or they want that divorce without delay.

RPs, generally speaking, bear the opposite characteristics. They tend to be institutions (i.e., corporations, governments). They tend to be relatively wealthy. And, they tend, because of size and resources, to be able "to pursue . . . longrun interests" (Id: 98). Thus, according to Galanter, "[w]e would expect an RP to play the litigation game differently from an OS" (Id). And, this ability to play differently, affords the RP some very substantial benefits.

First, repeat players, having been through many similar litigations, "have advance intelligence." They are the process pros, "able to structure the next transaction and build a record. It is the RP who writes the form contract, requires the security deposit, and the like" (Id). Second, the RP, because of its long term position, becomes proficient in the process, helped along, in no small part, by its ability to access specialists. Moreover, "[t]hey enjoy economies of scale and have low start-up costs for any case" (Id). Third, because they frequently employ the system, they are able to develop helpful informal relationships with institutional insiders. Indeed, the very frequency of the RP's judicial transactions and the relationships it develops as a result, make it something of an insider itself. Hence, fourth, the RP develops a "bargaining reputation," within the system which is to its advantage. Since "the OS has no bargaining reputation to maintain, the OS has more difficulty in convincingly committing himself in bargaining" (Id: 99).

Fifth, like seasoned and wealthy gamblers, "RPs can play the odds" (Id). Given their size and resources, the stakes for RPs in any given litigation are likely to be relatively small. RPs, thus can "adopt strategies calculated to maximize gain over a long series of cases, even where this involves the risk of maximum loss in some cases" (Id: 100). Conversely, any given case - particularly one involving large sums of money or life altering issues - is likely to be extremely important to the one-shotter. Sixth, repeat players are well-positioned to play, not just for immediate gains, but for the rules. "[I]t pays an RP to expend resources in influencing the making of the relevant rules by such methods as lobbying" (Id). Not only, however, are RPs in the position to change the rules through legislative channels, they "can also play for rules in litigation itself" (Id). The OS inevitably is interested only in the tangible outcome of its particular case, not in legal precedent set down for future cases. Moreover, the RP, by virtue of its experience and expertise is likely to know which rules are important - which are worth maintaining and fighting for.

And, the RP is likely to have one other thing on its side: lawyers. Of course, outside of small claims court, so does the OS. So, lawyers might appear to be equalizing agents. That, however, tends not to be the case. Lawyers or law firms who service RPs tend to develop long-term relationships with their clients - they get to know their clients and know them well. They can engage in specialized services for their clients. Lawyers who cater to the OS-es of the world are pulled among dozens or hundreds of clients whom they serve only once or, if more frequently, still only sporadically. The "episodic" nature of the relationship the OS attorney has with any given client means it is to her or his financial advantage to process all clients quickly - going, often, for the early settlement (Id: 116-117). Moreover, OS lawyers tend, in Galanter's words, "to make up the 'lower echelon' of the legal profession; RP lawyers, the higher echelons (see also, Heinz and Laumann 1978).

In short, the RP, unlike the OS, is in an excellent position not only to manipulate, but to make rules. Equally as important, the RP can withstand long-run engagements in the judicial process, trading present legal costs - even loses - for future gains. Notably, this puts the RP in a powerful bargaining position vis-a-vis the OS which generally can neither sustain lengthy delays nor early losses. The RP brings to the judicial process these, and other, exceptional advantages - advantages, which Galanter maintains, give it a powerful edge in the legal arena.

Part Two of the book presents six studies testing Galanter's hypotheses. Songer, Sheehan, and Haire apply Galanter's framework to decisions of the U.S. Courts of Appeals from 1925 to 1988. Their study offers powerful evidence that "haves," here, largely defined as governments and businesses, do win more often on appeal than "have-nots." Remarkably, this remains fairly constant over time. "Haves" were more likely to win during the early and latter conservative judicial eras, and they were more likely to win during the presumably "little guy-friendly" New Deal and Warren Court eras.

Beth Harris takes a very different approach to Galanter. Beginning with his argument that in order to attain real success, attorneys for "have-nots" need to extend their advocacy roles "beyond the courtroom into the implementation process," Harris analyzes Legal Services lawyers for the homeless (p.108). Drawing on three right-to-home cases, she convincingly concludes "that to create successful implementation strategies, advocates for the 'have nots' must combine the leverage created by formal rule-changes with collaborative tactics that mobilize administrative and political support for those changes" (p.130).

Another innovative analysis is offered by Kinsey and Stalans. "Do 'haves'," they ask, "come out ahead in the front lines [early stages] of civil law enforcement" (p.137)? Using tax audits as their data base, they present a series of intriguing findings. As opposed to the kind of mobilization bias suggested by Harris, these authors unearth a kind of cultural bias. Thus, high status taxpayers even without legal representation were more likely to have a favorable audit outcome.

Catherine Albiston explores the judicial reaction to the Family Medical Leave Act (FMLA). Her analysis provides further and different evidence that settlements tend to favor "haves" in a long-term way. Hence, "when repeat player defendants settle cases they are likely to lose, judicial determinations of rights are based on a selective group of weaker cases" (p.198).

The remaining two studies take a more global perspective. Yoav Dotan takes as his unit of analysis the Israeli High Court of Justice. On ideological courts, he finds, "haves" may enjoy only a limited advantage. Moreover, the presence of counsel for "have nots" largely washes out the "haves'"advantage.

Hendley, Murrell, and Ryterman study Russian Repeat Players (RRP). For a variety of reasons, including Russia's grounding in civil law and its only relatively recent emergence from the Soviet structure, they find that many of Galanter's characterizations do not easily translate to the Russian environment. Nevertheless, using a number of very clever surrogates, they are able to come to some interesting conclusions about RRPs.

The final portion of the book is composed of four pieces aimed at "Synthesizing and Advancing Theory. Ewick and Silbey seek to understand the extent to which American's believe that "haves" come out ahead. Extensive interviews find three general attitudes among the sample. For some, law is a majestic entity, distant but neutral as among parties. For others, law is a game to be played, with rules to be manipulated. Finally, a third group view the law as "arbitrary and capricious . . , [the] product of unequal power" (p.281).

What, ask Edelman and Suchman, is the effect of "haves" "hold[ing] court"? "In the end," they conclude, "[organizational] internalization [of law] benefits the 'haves' not so much because it undercuts legal neutrality or formality, as because it undercuts democratic governance" (p.325).

Kritzer looks at the massive advantage of government, the ultimate repeat player. What accounts for this are not just the returns on experience and resources, but government's obvious ability to set the rules. The concluding chapter, by Brian J. Glenn, is a nice synthesis of the research spawned by and since the 1974 publication of Galanter's article.

For the penny-wise (though not necessarily pound-foolish), it is worth noting that, with the exceptions of the introduction and final essay, all the pieces in this book were previously published in 1999 in the LAW & SOCIETY REVIEW. Still, for those interested in the politics of courts, this is a volume worth having - an important extension of a very important progenitor. The articles are all well-researched and generally well-written. More important, each is fodder for future research. And, it is certainly not inconceivable that thirty years from now, enough further Galanter-inspired research will have emerged to more than justify another such volume.

REFERENCES:

Galanter, Marc. 1974. "Why the 'Haves' Come Out Ahead: Speculations on the
Limits of Legal Change." 9 LAW & SOCIETY REVIEW 95-160.

Heinz, John P. and Edward O. Laumann. 1978. "The Legal Profession: Client Interests, Professional Roles, and Social Hierarchies." 76 MICHIGAN LAW REVIEW 1111-1142.

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Copyright 2004 by the author, Cynthia L. Cates.