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9 Law & Soc'y Rev. 347 (1974-1975)
Afterword: Explaining Litigation

handle is hein.journals/lwsocrw9 and id is 349 raw text is: AFTERWORD: EXPLAINING LITIGATION* MARC GALANTER State University of New York at Buffalo In my contribution to the first part of this collection I sug- gested that the character and impact of litigation might be best understood if, rather than starting from consideration of rules or of institutional processes, we began by looking at the parties and their relation to dispute institutions. I introduced a simple distinction between those actors in society who have many occa- sions to utilize the courts (in the broad sense) to make (or de- fend) claims and those parties who do so only rarely. Parties who have only occasional recourse to the courts I called one-shot- ters (henceforth, OS) and parties engaged in a large number of similar litigations over time repeat-players (RPs). I then argued that an RP might be expected to play the litigation game differently from an OS and that the RP would enjoy a number of advantages in the litigation process. Briefly, these advan- tages include: ability to structure the transaction; expertise, economies of scale, low start-up costs; informal relations with institutional incumbents; bargaining credibility; ability to adopt optimal strategies; ability to play for rules in both political for- ums and in litigation itself by litigation strategy and settlement policy; and ability to invest to secure penetration of favorable rules. We may visualize litigation in terms of various combinations of OSs and RPs as depicted in Figure 1. On the basis of our notions about the cluster of advantages enjoyed by RPs, we might speculate that RPs, equipped with these advantages, would be more successful in their encounters with OSs; on the other hand, we would expect OSs to be less successful. They face a costly and risky uphill battle in using courts to vindicate claims against RPs. We would expect litigation by RPs against OSs to be relatively frequent, that by OSs against RPs to be relatively An earlier version of these remarks was presented at the World Con- gress of Sociology in Toronto, August 1974 and has appeared in the Rundbrief of the Sociology of Law section of the Deutsche Gessell- schaft fir Soziologie. I am indebted to the participants in the Law and Development Seminar at Buffalo and the Law and Behavioral Sciences Seminar at the University of Wisconsin-Madison and to Pro- fessor Upendra Baxi for helpful, if not entirely cooptable, comments; to Dr. Jeddy Lever for allowing me to utilize his unpublished work; and to Rosemary Vogt for assistance in preparing the tables.

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