”: the people and organizations who use, are affected by, respond to, and/or perceive the law. I categorize the subjects into three broad groups: governments, nongovernmental organizations, and individuals. For reasons of space, I limit my discussion of government to inclusion in the initial discussion of “who comes out ahead” in section 8.1. After that initial section, I discuss empirical legal research (ELR) focused on business organizations, and then conclude with research focused on individuals. Due to space limitations, I do not discuss nongovernmental organizations other than business organizations. As I will discuss below, my familiarity with ELR related to business organizations is limited and I use the shortcut of focusing on articles in one prominent ELR journal as a vehicle to provide a sense of the range of ELR related to businesses.
One of the most cited articles in the ELR literature is Marc Galanter’s 1974 article “Why the ‘Haves’ Come Out Ahead.” In this article, Galanter was concerned about the prospects of using law generally and litigation more specifically to achieve social change, particularly progressive social change. The article itself is not an empirical study in that it is not itself based on analyses of data done for the article. Rather, it is a theoretical assessment of the advantages possessed by those groups with significant financial resources, particularly large business entities. Galanter’s analysis, which focuses on the differences between “one-shot” players and “repeat” players, is complex but it has some key elements that have inspired significant research.1...
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