For Pragmatic Romanticism in Law and Dispute Resolution: Reflections on Galanter's Remarkably Realistic Analysis of Why the Have-Nots Come Out Behind
Book chapter in: Discussions in Dispute Resolution (Art Hinshaw, Sarah Rudolph Cole, Andrea Kupfer Schneider eds., Forthcoming)
7 Pages Posted: 5 Jan 2018
Date Written: January 5, 2018
The 1960s was a time of great hope for Americans seeking to redress historic injustices and make a better world. This was the context in which Marc Galanter wrote his classic article, Why the Haves Come Out Ahead. Based on a remarkably realistic analysis of the mechanisms advantaging the “haves” in society, he provided a cautionary analysis of potential strategies that are more and less likely to help “have-nots.” Inspirational images of advocates like Ralph Nader created unrealistic expectations of the potential for more law, courts, and lawyers to promote social progress.
Galanter argued that while these factors could be useful in such efforts, organizing “one-shotters” (the “have-nots”) into repeat-players (the “haves”) was key. Without this transformation of the parties, repeat-players generally would be able to thwart one-shotters’ legal strategies. Based on this analysis, he suggested plausible strategies for helping have-nots. He essentially cautioned against what Carrie Menkel-Meadow later called “litigation romanticism.” She favors romanticism about some things, including the legal system, and argued that “to love an idea or institution realistically we need to see the object of our love as it really is.”
This chapter applies this same perspective to ADR romantics, calling on us to see our beloved ADR as it really is. It argues that we should not abandon our idealistic hopes but rather we should be very pragmatic about understanding the real world and potential strategies to make it better.
Keywords: Galanter, haves, have-nots, litigation romanticism, ADR romanticism, pragmatism, dispute resolution, ADR
Suggested Citation: Suggested Citation