Marc Galanter, Why the Haves Come out Ahead: Speculations on the Limits of Legal
Change, 9 L. & Soc'y Rev. 95 (1974).
Abstract
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 litigation1 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.
Public Note
This essay originally appeared in Law & Society Review in 1974.
It was reprinted (with corrections) in R. Cotterrell (Ed.) Law and Society, Aldershot, Dartmouth, 1994, pp. 165-230.
It was then reprinted in Discussions in Dispute Resolution: The Foundational Articles (Art Hinshaw, Andrea Kupfer Schneider & Sarah Rudolph Cole eds., 2021).
