Haves Come Out Ahead Analysis

A Second Shot for the “Have-Nots”:

A Study of Galanter's Normative Solutions to Judicial Inequality in Modern Welfare Reform

Introduction:

The relationship between the Judiciary and the poor is one stained by false promises and stagnate action. In his empirical study of the legal system and it's distribution of benefits, both in quantitative economic terms and in intangible gains, to players with varied legal resources titled “Why the 'Haves' Come out Ahead”, Marc Galanter presents a realistic model of the judicial system and it's preferential treatment to those with more legal capital. A descriptive model of the current judiciary is presented followed by an normative ideal model of what we ought to do to even the legal playing field,

I.e giving the “have-nots” a fighting chance in litigation.
In direct response to Galanter in this essay I posit the question “how are the 'have-nots' fairing now?”. Have recent developments in the legal environment created a system close to the ideal model that Galanter presented in “Why the 'Haves' Come out Ahead”, and if so how have these developments affected the role of “have-nots” in the litigation process? With aid from the example of welfare reform, both at the national level through the supreme court rulings and on a more localized level through Utah child welfare reform, I will examine the effects of Galanter's ideal reforms on modern litigation and subsequent social change in these fields. Ultimately arguing that although changes in the legal environment have moved towards the ideal model proposed by Galanter, basic difficulties in litigation and social change still persist for “have-nots” resulting in limited social change through the courts for these parties.
I will examine modern developments in the legal environment that have created conditions for Galanter's ideal normative solutions to equalize the legal playing field, ultimately arguing that though some conditions have been meet the disadvantages to the “have-nots” persist specifically in the field of welfare reform.

One-shotter's and Aggregate Action:

Welfare recipients are the poster child for a category of the public pursuing litigation Galanter defines as One-shotter's (OS). OS's are defined by their limited legal capital in litigation, whether that be attributed to a lack of financial capital or legalistic experience, and are contrasted by what Galanter defines as Repeat Player (RP) who have considerably more legal capital. Though in a perfect world, perhaps one operating under Scheingold's “myth of rights”, the outlet for litigation in pursuit of social change would present a form of equal voice and definite change following a judicial decision, both Galanter and Scheingold would be quick to dismiss this view as a naïve and nonconstructive in the pursuit of real social change. The reality that Galanter addresses in his essay “Why the 'Haves' Come out Ahead” is one in which legal capital in the litigation process is both unequal creates favorable outcomes for that party which possesses more, by nature this make the RP's the “haves” and OS's the “have-nots”.
As OS's welfare recipients are in the unfortunate position of having both limited resources to pursue litigation and limited incentive to participate in litigation aimed at creating social change, it is far more likely for a welfare recipient, or OS in general, to settle in court instead of playing out the case in an attempt to make change. Furthermore in the case of welfare reform many of these OS are going against the domineering RP of the government, who possesses considerable influence over judicial decision making by nature of their political position, economic support, legal experience and considerable stakes in the state of the law. In there empirical study of Galanter's work Songer and Sheehan find that the highest net advantage for “haves” over “have-nots” come when the U.S Government is competing with individuals (Book, 95). As we will see later, most successful attempts at litigation in the case of welfare reform have taken place due to the transformation of OS's to RP through aggregate legal action.
Addressing this discrepancy in litigation power between OS's and RP's Galanter offers a four pronged strategy for reform. The utopic reform, aimed at evening the legal playing field between OS's and RP's, is split into the categories below (These are independent reforms that together form a ideal legal system for OS's pursuing meaningful litigation):
(1) Rule Change
(2) Improvement in institutional facilities
(3) Improvement of legal services in quantity and quality
(4) Improvement of strategic position of have-not parties

Below I offer a brief overview of the relevant reforms, those which have seen change paralleled to what we see in our modern day legal system, which will be referenced in case studies of welfare reform and social change later.
Increased Legal Services:

In Charles Epp's recent reappraisal of Galanter's 1974 paper “Why the 'Haves' Come out Ahead” he addresses changes in the modern legal environment that have improved the condition of OS's.

His main finding is the transformative identity of the legal environment from knowledge limited to a group of narrow elite to a more wide-ranged and accessible field of study (Epp, 1093). The recent explosion in the lawyer population has resulted in a demystified and accessible state of legal resources and knowledge.

Improvement of strategic position of have-not parties:

Galanter's main point with the addition of this reform was to revolutionize the strategic position of OS's to that of RP's through the use of aggregate action facilitated by the use of interest groups. This aggregation provides OS's with the financial, political and experiential advantage of RP's in order to even the playing field. This will be very important in the cases of Sáenz v. Roe and David C. v. Huntsman which we will elaborate more on below.

OS's and the Supreme

Court:

Not very many cases on welfare reform reach the Supreme Court. This can be partially attributed to both the OS nature of most welfare litigation claims and the decentralized form the welfare system has taken on in recent years. I feel like the cases of Sáenz v. Roe and Goldberg v. Kelly are good signposts in welfare reform from where I can both discuss the Supreme Courts limited role in creating social change in the form of directing welfare policy, leaving this mostly to state-level courts as we will see in the case of David C. v. Huntsman, as well as elucidate the importance of aggregate action in welfare litigation.
Courts lacking the required tools to implement surveillance, monitoring, or enforcement of their decisions become a costly and ultimately unlikely forum of social change for OS's. The case of welfare residency requirements, as brought up in Sáenz v. Roe, has proven to be a paradoxical paradigm exposing both the inherent weaknesses in the courts highly symbolic rulings and the real potential for social change on the issue of welfare reform in combination with persistence (Galanter, 138).
Aside from sweeping cases following the landmark implementation of the 1935 Social Security Act, in which the court upheld the constitutionality of wealth distribution and due process for welfare recipients, the study of welfare reform holistically can be found lacking any seminal federal decisions in recent years. This may be partially attributed to the more state centered approach adopted under the PRWOA welfare reform act of 1996 giving a decentralized state-focused identity to modern welfare, but also to the difficulties inherent in attempting to bring a OS case to the supreme court.
Goldberg v. Kelly:
Goldberg v. Kelly at first shows signs of proving to be an outlier in Galanter's study of the disadvantages of one-shotter's in litigation, however further analysis of it's lack of lasting impact on social change offers support to his argument. The case was decided in 1970, this is before Galanter's essay was published in 1974; therefore many of the inefficiencies in the legal system, as described by Galanter, were still in place.
Goldberg v. Kelly was a welfare reform case brought before the Supreme Court which established a necessity of proper due process when removing someone from receiving welfare benefits. Represented by a New York based non-profit law-firm MFY, John Kelly and other welfare recipients ultimately won the case with the Supreme Court arguing that a lack of notice in termination of welfare benefits undermined the 14th amendments due process clause. Though Kelly was an OS the representation by MFY provided him with both the ample legal services and improved strategic position to put him on a more equal playing ground in litigation, thus overcoming Galanter's prescribed constraints on the legal system that required reform. Moreover the MFY is a RP that has an incentive in rule-change, being a non-profit legal firm in New York aimed at offering legal protections to indigent individuals.
Though this case is an example of welfare-recipients overcoming their role as “have-nots” in litigation, limits to full bureaucratic implementation of the rule-changes established in this court ruling highlight the intrenched limits of being a OS in welfare reform.
“An administrative agency may continue on its merry way, adjudicating disputes as it has always done, totally oblivious to Supreme Court rulings. Even though Goldberg v. Kelly serves as a precedent for further cases, if an agency's procedures go unchallenged, the agency may never have to adopt the Goldberg ingredients for its own procedures” (Smith, 62).

Indigent persons , lacking the instrumental knowledge of their rights and the law, were unable to challenge systems that had not fairly implemented the rules brought upon in Goldberg. While social change may have happened, it did so at an excruciatingly slow pace due to the limits on public legal knowledge and poor legal position of welfare recipients as outlined as problems in Galanter's reform, a problem whose recent solution may be potentially explained by Epp's theory on the changing face of legal culture.

Sáenz v. Roe:
Sáenz v.

Roe (1999) is a case that benefits from the realization of many of the ideal reforms set forth by Galanter's model, but also one that displays the historic difficulty in creating social change on the front of welfare reform through use of the Supreme Court. The case was brought to court by a welfare recipient, who upon moving to California was limited in her welfare benefits to a level that equaled that of the State she had formally resided in. This was enacted under a California provision to TANF that required a person to reside in the state for a year before receiving full welfare benefits. California, having a much higher cost of living than other states, made the level of benefits she was receiving under the conditional residency requirements unacceptable. The welfare recipient challenged the constitutionality of the California provision and the court ruled that such provisions violated the 14th amendment's implied “right to travel” under the privileges and immunities

clause.
Residency requirements are not a new conception of the state in an attempt to reduce welfare spending, and neither is their repudiation by the court. In 1969 , in the case Shapiro v. Thompson, a Connecticut women challenged the residency requirements for her AFDC , the predicessor to the 1996 TANF, benefits as unconstitutional and won favor of the courts who once again ruled that such provisions violated the implied constitutional “right to travel” established under the 14th amendment's privileges and immunities clause. The Courts ruling in this case, as we can see by its recent resurfacing in Sáenz v. Roe was both symbolic and ineffectual. The legislature's recent conservative attempts to reduce welfare budgets under their 1996 PRWORA blatantly undermine the earlier rulings of Shapiro v. Thompson by granting states the explicit right to impose residency requirements on welfare benefit reception. This was predicted in Galanter's 1974 study when he
Conclusions:
Galanter's idealistic reform set high standards for the future of equality in litigation, some standards that we have seen improvement on in recent years and others where change is both slow and distant. When looking at the current legal landscape and it's advantages towards welfare recipients, improvements in the availability of legal aid have proved instrumental in the welfare reform movement, but the non-ideal standing of welfare clients as “have-nots” in the system persist. The lengthy process for change as seen in the cases of child welfare reform, residency requirement invalidation, and procurement of due process in processing welfare claims provide evidence for the non-ideal state welfare clients are in. This being said, advancements have been made in the case for these “have-nots”. The increased use of interest groups for aggregate action in litigation provide evidence that steps towards Galanter's ideal have been made. Furthermore, movement away from an “elite” legal environment and promotion of welfare client's defense of rights through legislation, as seen in the “Suter cure provision”, provide affirmation of an improving landscape for “have-nots”. Current trends towards Galanter's ideal are , much like social change in the field, slow and arduous for welfare clients, however they do provide indications of change and hope of a second-shot for these “have-nots”