For Pragmatic Romanticism

I had the good fortune to be one of Marc Galanter’s students when I was in graduate school.  As one of his former students, I was invited to contribute to a symposium honoring his work and I wrote this appreciation of his scholarship.  I suspect that many of us in the dispute resolution community aren’t aware of his important contributions to our field, and I wrote this article to provide an introduction.

I also was fortunate to be invited to write a short chapter about Galanter’s most famous article, Why the Haves Come Out Ahead: Speculations on the Limits of Social Change, for the Discussions in Dispute Resolution book that Art Hinshaw, Sarah Cole, and Andrea Schneider are editing.

My chapter is entitled For Pragmatic Romanticism in Law and Dispute Resolution:  Reflections on Galanter’s Remarkably Realistic Analysis of Why the Have-Nots Come Out Behind.  Here’s the abstract:

“The 1960s was a time of great hope for Americans seeking to redress historic injustices and make a better world.  This was the context in which Marc Galanter wrote his classic article, Why the Haves Come Out Ahead.  Based on a remarkably realistic analysis of the mechanisms advantaging the ‘haves’ in society, he provided a cautionary analysis of potential strategies that are more and less likely to help ‘have-nots.’  Inspirational images of advocates like Ralph Nader created unrealistic expectations of the potential for more law, courts, and lawyers to promote social progress.

“Galanter argued that while these factors could be useful in such efforts, organizing ‘one-shotters’ (the ‘have-nots’) into repeat-players (the ‘haves’) was key.  Without this transformation of the parties, repeat-players generally would be able to thwart one-shotters’ legal strategies.  Based on this analysis, he suggested plausible strategies for helping have-nots.  He essentially cautioned against what Carrie Menkel-Meadow later called ‘litigation romanticism.’  She favors romanticism about some things, including the legal system, and argued that ‘to love an idea or institution realistically we need to see the object of our love as it really is.’

“This chapter applies this same perspective to ADR romantics, calling on us to see our beloved ADR as it really is.  It argues that we should not abandon our idealistic hopes but rather we should be very pragmatic about understanding the real world and potential strategies to make it better.”

Michèle Leering’s article on reflective practice and action research – and the application through Stone Soup – are illustrations of what I describe as pragmatic romanticism.

 

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