Why the ‘Haves’ Come Out Ahead

Marc Galanter's central argument in this seminal article is that repeat players (RPs) —typically organizations or entities with substantial resources and ongoing exposure to legal processes — tend to fare better in the legal system than one-shotters (OSs), who are usually individuals or entities with only occasional and high-stakes involvement. This disparity is not primarily the result of biased laws, but rather the outcome of systemic features of the legal process. Galanter's thesis is that these systemic advantages are built into four interrelated domains: the type and organization of the parties, access to legal services, the structure of institutional facilities, and the nature and application of legal rules. Meaningful legal reform, he argues, cannot be achieved solely through changing the rules, but must address these structural factors to level the playing field.

I. A Typology of Parties

Galanter begins by classifying litigants into two categories: "one-shotters" (OSs) and "repeat players" (RPs). One-shotters are those who engage in litigation only once or very infrequently, such as individuals involved in divorce, criminal defense, or personal injury cases. In contrast, repeat players are entities that engage in frequent and similar types of litigation, such as prosecutors, insurance companies, or large corporations. Galanter shows that RPs have structural advantages: they can play the long game, gather expertise, establish credibility, influence the development of legal rules, and strategically choose which cases to settle or pursue. They have the ability to “play for rules,” meaning they seek not only favorable tangible outcomes in individual cases but also legal rules that will benefit them in future litigation. OSs, by contrast, are focused on high-stakes, one-time outcomes, and are less able or inclined to shape broader legal precedents.

II. Lawyers

In the second section, Galanter explores how the legal profession reinforces the advantages of RPs. Lawyers, by nature of their work, are themselves repeat players in the legal system. RPs are able to afford better lawyers, build long-term client-counsel relationships, and retain legal specialists with deep, relevant expertise. Lawyers representing OSs often operate under constraints: they tend to come from less prestigious backgrounds, work under resource limitations, and face ethical and institutional constraints that make it difficult to use litigation strategically. Additionally, legal service delivery for OSs often occurs through intermediaries, which can distort loyalty and limit the quality of representation. Lawyers serving OSs typically handle episodic and low-return cases, leading to mass processing and minimal investment in any single claim. Thus, the structure and culture of the legal profession amplify the disparities between OSs and RPs.

III. Institutional Facilities

Galanter next turns to the role of the legal system's institutional design. Courts and similar institutions, he argues, are inherently passive — they require parties to initiate litigation and move cases forward. They are also chronically overloaded, which causes delay, increases the cost of pursuing claims, and encourages early settlement. These institutional features disproportionately burden OSs, who often lack the resources and stamina to endure protracted legal battles. RPs, conversely, can use delay to their advantage, select cases strategically, and even influence which disputes reach adjudication and which are quietly settled. Moreover, because legal procedures assume equality between parties (procedural neutrality), the disparities in actual capacity and resources are ignored, further reinforcing inequality. The courts’ passive architecture thus becomes a structural barrier to redistributive justice.

IV. Rules

Although legal rules may appear neutral or even favorable to "have-nots," Galanter argues that in practice, they often benefit RPs. This is due to the complexity of the rules, the cost of invoking them, and the selective enforcement or "penetration" of rules into actual practice. RPs are more capable of understanding, applying, and ensuring enforcement of the rules in their favor, while OSs frequently lack the resources or knowledge to do the same. Even when courts create new rules favorable to OSs, those rules may not be implemented effectively due to institutional constraints, lack of legal support, or bureaucratic resistance. Due process, while designed to protect fairness, often serves to preserve the status quo and shield possessors from claimants. As a result, rules are not reliable tools of equalization unless supported by broader structural change.

V. Alternatives to the Official System

In this section, Galanter examines dispute resolution systems that operate outside of or alongside the formal legal process. These include “lumping it” (doing nothing), “exit” (withdrawing from relationships), appended systems (semi-formal settlement processes), and private systems (completely informal, norm-based resolutions). He points out that many disputes never reach the formal system due to cost, fear, lack of knowledge, or cultural barriers. These alternatives, while sometimes effective, often mirror and reinforce existing inequalities. Relationships that are long-term, complex, and high-density are more likely to develop their own internal dispute resolution mechanisms, while disputes between strangers or in less enduring relationships are more likely to fall within the official system. Galanter emphasizes that the pluralism of legal remedies reflects deep social structures and should be understood as part of the systemic landscape of legal inequality.

VI. Strategies for Reform

Galanter outlines four interrelated avenues for legal reform:

A. Rule-change: While changing the rules is often seen as the primary way to produce justice, Galanter argues that rule-change alone is insufficient. Rules often fail to be enforced or are sidestepped by powerful actors who can reshape transactions or exploit legal ambiguity.

B. Increase in Institutional Facilities: Strengthening institutional capacity—such as adding more judges, streamlining procedures, and reducing delays—would make the system more accessible to OSs and reduce the advantages of delay and cost manipulation enjoyed by RPs.

C. Increase in Legal Services: Expanding the availability, affordability, and quality of legal representation for OSs could improve litigation outcomes and empower OSs to challenge RPs more effectively. Galanter emphasizes the role of public interest law and legal aid as partial steps toward this goal.

D. Reorganization of Parties: The most promising strategy, according to Galanter, is the collective organization of OSs into associations, unions, or advocacy groups that can act like RPs—pursuing long-term legal strategies, pooling resources, and influencing law and policy. Examples include tenant unions, environmental groups, and civil rights organizations. These groups can increase the strategic weight and legal impact of their members and shift the balance of power in litigation.

VII. Reform and the Rest of the Iceberg

In this section, Galanter uses the metaphor of a legal “iceberg” to describe the visible tip of formal adjudication and the vast, submerged layers of alternative dispute resolution, inaction, and private systems. He argues that reforming the formal system would bring more OSs into it and allow them to access legal remedies. However, it would also change the structure of litigation: as OSs become organized and capable of sustained engagement, many OS–RP cases would become RP–RP cases. Some of these would then shift to private settlement systems, as RPs often prefer to resolve disputes informally. Thus, reform would create a dual movement: increased legalization of weak parties' claims and increased privatization of strong parties’ relationships. Galanter suggests that reducing the cost and complexity of legal access may also expose hidden norms and power dynamics, thereby forcing greater recognition of values and conflicts currently shielded by informal systems.

VIII. Implications for Reform: The Role of Lawyers

Galanter concludes by reflecting on the role lawyers can play in driving redistributive legal change. He argues that litigation alone, especially in the courts, is not enough to shift power. Lawyers must work alongside organized OS groups, pursue long-term strategies, and engage in political and administrative arenas. The culture and organization of the legal profession influence whether lawyers are willing and able to do this kind of work. Lawyers embedded in elite traditions may be constrained by professional norms, while those more closely aligned with client causes—and less bound by courtroom formalism—may have more flexibility to act as change agents. Paradoxically, legal systems that allow lawyers to closely identify with client interests may enable more meaningful reform, even if those systems also entrench RP advantages.

Conclusion

Marc Galanter’s “Why the ‘Haves’ Come Out Ahead” presents a powerful and nuanced critique of the legal system. Through detailed conceptual distinctions and institutional analysis, Galanter shows that repeat players dominate the legal system not because of biased laws, but because of advantages rooted in how the system is structured and how it operates. Reform, he argues, must address all layers of the system—not just formal legal rules, but also the institutions that apply them, the professionals who navigate them, and the parties who use them. Only by changing the distribution of resources, representation, and organizational capacity can the legal system begin to deliver on its promise of equality and justice.