The Two Motifs of “Why the ‘Haves’ Come Out Ahead” and Its Heirs

Abstract

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.”