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M_Schlanger_Jail_Strip_Searches

M_Schlanger_Jail_Strip_Searches - JAIL STRIP-SEARCH CASES...

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JAIL STRIP-SEARCH CASES: PATTERNS AND PARTICIPANTS M ARGO S CHLANGER * I I NTRODUCTION Among Marc Galanter’s many important insights is that understanding litigation requires understanding its participants. In his most-cited work, 1 Why the “Haves” Come Out Ahead , 2 Galanter pioneered a somersault in the typical approach to legal institutions and legal change: Most analyses of the legal system start at the rules end and work down through institutional facilities to see what effect the rules have on the parties. I would like to reverse that procedure and look through the other end of the telescope. Let’s think about the different kinds of parties and the effect these differences might have on the way the system works. 3 The interested parties—plaintiffs, defendants, and their counsel—are key, Galanter suggests. Indeed, this is one of the recurring themes of his work. If we wish to understand legal change, he warns us not to “exclude[] or marginalize[]” “[s]ources of legal change other than changes in the rules . . . (for example, changes in the number, organization, or style of lawyers and changes in the expectations, organization, or capabilities of litigants).” 4 Differences among litigants and lawyers mean that “the same rule change may bring about quite Copyright © 2008 by Margo Schlanger. Permission is granted for distribution at or below cost to prisoners or students in a class. This Article is also available at http://law.duke.edu/journals/lcp. * Professor of Law, Washington University in St. Louis. B.A., Yale College; J.D., Yale Law School. The author may be reached at [email protected] Thanks to the many people who spoke or corresponded with me about their strip-search litigation: Mark Bennett, Randy Berg, John Boston, Fay Clayton, Jennifer Duncan-Brice, Ken Flaxman, David Friedman, Howard Friedman, Harvey Gross, Bob Herbst, Mike Kanovitz, Charles LaDuca, Alexandra Lahav (who also offered very useful comments on a draft), Barry Litt, Mark Merin, Tom Poulton, Jan Susler, Mike Sutherlin, and Flint Taylor. Thanks, too, to my colleagues at Washington University in St. Louis and at the Law & Society Association 2007 conference for their helpful feedback, and, as always, to Sam Bagenstos. All remaining errors are mine. 1. Fred R. Shapiro, The Most Cited Law Review Articles Revisited , 71 C HI .-K ENT L. R EV . 751 tbl.1 (1996). 2. Marc Galanter, Why the “Haves” Come Out Ahead: Speculations on the Limits of Legal Change , 9 L AW & S OC Y R EV . 95 (1974). See also I N L ITIGATION : D O THE “H AVES S TILL C OME O UT A HEAD ? (Herbert M. Kritzer & Susan S. Silbey eds., 2003). 3. Galanter, supra note 2, at 97. 4. Marc Galanter, Conceptualizing Legal Change and Its Effects: A Comment on George Priest’s “Measuring Legal Change , 3 J.L. E CON . & O RG . 235, 236 (1987) [hereinafter Galanter, Conceptualizing Legal Change ].
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66 L AW AND C ONTEMPORARY P ROBLEMS [Vol. 71:65 varied changes of practice in different settings.” 5 More generally, Galanter urges us to resist “identifying ‘law’ with doctrine”; 6 law, he counsels, must not
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