Jail Strip-Search Cases: Patterns and Participants

Among Marc Galanter’s many important insights is that understanding litigation requires understanding its participants. In his most-cited work, Why 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).” Differences among litigants and lawyers mean that “the same rule change may bring about quite varied changes of practice in different settings.” More generally, Galanter urges us to resist “identifying ‘law’ with doctrine”; law, he counsels, must not be “viewed as a thing apart from practice or action,” nor “doctrinal change [be] isolated from other kinds of legal change.” He asks us to preserve “the richness of context—and with it the indeterminacy and wildness that is entwined with the stability and routine of legal life.” “If we want to understand legal change,” he explains, “we will have to move further from the ambit of conventional legal analysis.