Wal-Mart as a Phenomenon in the Legal World: Matters of Scale, Scale Matters

Abstract

The paper's aim is to simply to explore the areas of Wal-Mart litigation available from the vast public record of the mega-corporation's litigation and sketch the contours of that record, imagining a blueprint for gauging Wal-Mart's effect on the legal rules, which then come to control the legal lives of many other persons, artificial and natural, members of the nation and world. Economic, civic, and social laws (and lives) seem to be refit along the lines of the predominant private institution. This decade, perhaps this century, is the era of the super-retailer, Wal-Mart litigation. Certainly other corporate entities stand out as exhibiting disproportionate influence in other arenas of government and law, for example, Haliburton in government contracts and the tobacco industry in maintaining lobbying efforts, but in terms of shaping the common law as a repeat player in the courts, Wal-Mart may be king. It is theoretically well established that large firms, like corporations, can and do pursue legal strategies that shape the common law not only for themselves, but for all those that come after. Marc Galanter's powerful analysis of Why the Haves Come Out Ahead demonstrated that repeat players can have an influence on the rules of the legal system and upon the judicial agenda, not only by aggressive lawyering, but also by playing for rules. Currently, Wal-Mart is not only a repeat player in one area of litigation, it is most likely the largest repeat player in the nation on several distinct legal issues. This not only gives Wal-Mart a wider opportunity for legal influence on the judicial agenda, it may give the mega corporation opportunities of an additional kind: to play off rules for advantage between different areas of law conventionally seen as self contained. Thus, the question about Wal-Mart's influence is not only whether and the extent to which it plays for rules as all repeat players are presumed to, but also whether, by virtue of its position as the largest repeat player, its influence becomes a phenomenon in itself. The paper proposes examining Wal-Mart's influence by examining rule-shifting cases as signature cases, parallel cases, and positional cases. Then using this terminology, the paper then examines Wal-Mart's litigation profile with a view to suggesting additional paths of research.