Why The ‘Haves’ Come Out Ahead:
Speculation on the Limits of Legal Change
Marc Galanter
In his piece “Why The ‘Haves’ Come Out Ahead, Galanter take s a comprehensive look at how power is distributed throughout our legal system, as well as the various roles and players that contribute to and hold onto that power. What he finds is that there is indeed a great rift between those of varying classes and their specific dealings with the law. While not all OSs are necessarily comprised of the lower class, nor are RPs all necessarily wealthy and powerful (though likely they do have access to significant resources), there is certainly a class division between them that has a great impact on their dealings with the law, at least as far as clients are concerned.
It is a division that many of us are largely aware of, but one that still catches my eye as Galanter investigates the extent to which it affects the legal process, and, of course, that difference is constituted by one’s wealth and power. It seems stereotypical in nature based on our understandings of the court, but in many cases it seems to remain true.
On page 117, Galanter cites the research of Carlin and Howard, who found that the types of cases brought forth by poorer clients (which seem to be more typical of OSs in Galanter’s view) are generally handled in mass quantities, and that due to low fees and a low payoff, “only a limited amount of time and interest is expended on any one case – there is little or no incentive to treat it except as an isolated piece of legal business.”
In effect, we see that the efforts of most OSs to pursue their individual views of justice are severely limited by their resources, their knowledge of the law, and the power that they bring with them to the courtroom. All of these, in turn, are largely influenced by their class level in society, which determines the extent of their wealth, education and influence. The RP clients, on the other hand, have much greater capabilities in the courtroom, as it is an experience that they are familiar with, the have the economic capital to fund their endeavors, and in general prove to be powerful individuals, or are representing powerful entities.
The extent of this rift between the lower and upper classes in the courtroom has led to great inequality in the pursuit of justice. In most OS pursuits, cases are usually settled before ever going to trial, and long before the trial would normally end had it been seen the whole way through. Take for example, plea bargaining.
This is a tactic largely used in criminal court to expedite cases that court-appointed attorneys don’t have the time or resources to argue, nor do their clients in most cases. This is not to say that plea bargains are only offer to lower-class OSs, but that they are disproportionately involved in the outcome of their cases. Is that justice? In most cases, no. It’s really a method of curtailing the legal system, of avoiding the entire judicial process by accepting some level of guilt, even if that punishment doesn’t entirely it the crime. Where’s the due process? Where’s the right to defend oneself?
This is a direct result of the construction of the legal system, as well as the players that take part in it. As the ‘have nots’, the lower class are indeed treated to a different style of justice than those with resources and power. This is nothing new, and it will likely take time to change. In order for that change to take place, Galanter concludes that 4 major changes need to take place: a chance in rules, institutional facilities must be improved, legal services must be improved and expanded, and the position of ‘have not’ parties must also be improved.
These guidelines, while still a little vague in nature, provide the foundation for which change must occur. All of this change largely affects the lower class, the OSs, the ‘have nots’, because they are the ones most negatively affected by then current judicial system, as we have currently seen. The justice system is indeed in large need of reform, and it is in fact long overdue. But of course that takes time, and that is something that we have… or have not?
Marc Galanter
In his piece “Why The ‘Haves’ Come Out Ahead, Galanter take s a comprehensive look at how power is distributed throughout our legal system, as well as the various roles and players that contribute to and hold onto that power. What he finds is that there is indeed a great rift between those of varying classes and their specific dealings with the law. While not all OSs are necessarily comprised of the lower class, nor are RPs all necessarily wealthy and powerful (though likely they do have access to significant resources), there is certainly a class division between them that has a great impact on their dealings with the law, at least as far as clients are concerned.
It is a division that many of us are largely aware of, but one that still catches my eye as Galanter investigates the extent to which it affects the legal process, and, of course, that difference is constituted by one’s wealth and power. It seems stereotypical in nature based on our understandings of the court, but in many cases it seems to remain true.
On page 117, Galanter cites the research of Carlin and Howard, who found that the types of cases brought forth by poorer clients (which seem to be more typical of OSs in Galanter’s view) are generally handled in mass quantities, and that due to low fees and a low payoff, “only a limited amount of time and interest is expended on any one case – there is little or no incentive to treat it except as an isolated piece of legal business.”
In effect, we see that the efforts of most OSs to pursue their individual views of justice are severely limited by their resources, their knowledge of the law, and the power that they bring with them to the courtroom. All of these, in turn, are largely influenced by their class level in society, which determines the extent of their wealth, education and influence. The RP clients, on the other hand, have much greater capabilities in the courtroom, as it is an experience that they are familiar with, the have the economic capital to fund their endeavors, and in general prove to be powerful individuals, or are representing powerful entities.
The extent of this rift between the lower and upper classes in the courtroom has led to great inequality in the pursuit of justice. In most OS pursuits, cases are usually settled before ever going to trial, and long before the trial would normally end had it been seen the whole way through. Take for example, plea bargaining.
This is a tactic largely used in criminal court to expedite cases that court-appointed attorneys don’t have the time or resources to argue, nor do their clients in most cases. This is not to say that plea bargains are only offer to lower-class OSs, but that they are disproportionately involved in the outcome of their cases. Is that justice? In most cases, no. It’s really a method of curtailing the legal system, of avoiding the entire judicial process by accepting some level of guilt, even if that punishment doesn’t entirely it the crime. Where’s the due process? Where’s the right to defend oneself?
This is a direct result of the construction of the legal system, as well as the players that take part in it. As the ‘have nots’, the lower class are indeed treated to a different style of justice than those with resources and power. This is nothing new, and it will likely take time to change. In order for that change to take place, Galanter concludes that 4 major changes need to take place: a chance in rules, institutional facilities must be improved, legal services must be improved and expanded, and the position of ‘have not’ parties must also be improved.
These guidelines, while still a little vague in nature, provide the foundation for which change must occur. All of this change largely affects the lower class, the OSs, the ‘have nots’, because they are the ones most negatively affected by then current judicial system, as we have currently seen. The justice system is indeed in large need of reform, and it is in fact long overdue. But of course that takes time, and that is something that we have… or have not?
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