JAIL STRIP-SEARCH CASES: PATTERNS
Among Marc Galanter’s many important insights is that understanding
litigation requires understanding its participants. In his most-cited work,
the “Haves” Come Out Ahead
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.
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).”
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 firstname.lastname@example.org. 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 CHI.-KENT L. REV. 751
2. Marc Galanter,
Why the “Haves” Come Out Ahead: Speculations on the Limits of Legal
, 9 LAW & SOC’Y REV. 95 (1974).
IN LITIGATION: DO THE “HAVES” STILL COME OUT
AHEAD? (Herbert M. Kritzer & Susan S. Silbey eds., 2003).
4. Marc Galanter,
Conceptualizing Legal Change and Its Effects: A Comment on George Priest’s
“Measuring Legal Change
3 J.L. ECON. & ORG. 235, 236 (1987) [hereinafter Galanter,
Conceptualizing Legal Change