litigation | The Australian Dispute Resolution Research Network

John Lande
This article has been republished with permission. The original publication can be located within Indisputably.

Marc Galanter, a giant in the field of dispute resolution scholarship, passed away on April 14 at the age of 95.

Here is an excerpt from the announcement by University of Wisconsin Law School Dean Daniel P. Tokaji (reprinted with permission):

As many of you know, Marc was the John and Rylla Bosshard Professor of Law and South Asian Studies, the author of many books and articles, and a treasured member of the Law School community. Marc was a legendary scholar and teacher, to such a degree that it’s hard to know where to begin in summarizing his life’s work. With 6,751 citations (according to HeinOnline), Marc is UW Law’s most cited scholar ever. Very few law professors anywhere have had the impact that Marc has, and on so many different subjects. Our digital repository includes 188 books, articles, chapters, and other scholarly works that Marc published over his career, between 1959 and 2025. Many of them are about how the legal system, in the U.S. and elsewhere, actually functions in practice. While there are many people who embody our Law in Action tradition, it’s hard to think of a better exemplar than Marc.

A leader of the law and society movement, Marc’s most famous and perhaps most influential article is Why the “Haves” Come Out Ahead: Speculations on the Limits of Legal Change, published in 1974. One study found this be the 37^th most cited law review article of all time, and Marc was among a very small number of scholars to have two in the top 100. Like all Marc’s work, it is nuanced in its exposition of the problem at hand, identifying a distinction between “one-shotters” and “repeat-players” that partly (though not completely) overlaps with inequalities in resources.

Another must-read from Marc is Lowering the Bar: Lawyer Jokes and Legal Culture, a study of what lawyer jokes reveal about the U.S. legal system and society of which we are part. Like much of his work, the book questions conventional wisdom to expose the complex relationship between people and legal institutions. If Marc’s work seldom offers easy answers, it always helps the reader better understand the web of forces that create the reality in which lawyers, clients, and other members of society operate.

Beyond the numbers and canonical works, Marc’s impact has been – and long will be – felt through his relationships with so many colleagues and students over the years. On reviewing the many tributes to Marc written during his life, I’m struck by his openness to taking a personal interest in students and early-career scholars, in ways that made a transformative difference to them. This is an example that all of us might strive to emulate.

Marc and Me

I was fortunate to be one of the students in whom Marc took an interest. As a doctoral student at the University of Wisconsin, I had the great good fortune to be a student in his Sociology of Law: Disputing, Litigation and Social Change course in 1990. It was a demanding course – do you assign students to read 1000 pages these days? – and I loved it. I had read Why the Haves Come Out Ahead, and I was excited to take a course from Marc.

The course required students to write a paper, and I had the brainstorm of offering to be an unpaid research assistant by writing about something he wanted to explore himself. It worked! I wrote a paper about varieties of dispute resolution processes, which he incorporated into a book chapter, Private Courts and Public Authority. He listed me as a co-author and split the honorarium – which I hadn’t expected. In short order, I became his paid research assistant. He was an important member of my dissertation committee, and he helped me get a fellowship at Harvard’s Program on Negotiation to finish my dissertation.

He was an intellectual model who paid careful attention to empirical reality, meticulously analyzed conventional wisdom, and avoided simplistic critiques and advocacy. He identified realities that others never noticed. I loved his clever, understated, and wry language.

In commenting on his Why the Haves article in the first Discussions in Dispute Resolution volume, I called him a “pragmatic romanticist,” contrasting him with litigation romanticists that Carrie Menkel-Meadow aptly criticized, as well as ADR romanticists in our own field. He sought to help have-nots gain greater social influence and benefits by providing “a clear-eyed view of the world, unbiased (as much as possible) by romantic aspirations.” He wanted social justice advocates to have realistic expectations necessary to make real progress and persist in long-term reform efforts.

I almost always shared his perspectives. His analysis in The Vanishing Trial article was an exception to some extent. His description and analysis were quite astute, but I somewhat playfully critiqued his focus on the federal courts in my concisely-titled article, Shifting the Focus from the Myth of “The Vanishing Trial” to Complex Conflict Management Systems, or I Learned Almost Everything I Need to Know About Conflict Resolution from Marc Galanter.

I wrote An Appreciation of Marc Galanter’s Scholarship for a symposium honoring his work. It describes just three of his publications, including one of my favorites, Case Congregations and Their Careers. I wrote that it’s

a gem that deserves more attention. It illustrates Galanter’s penchant for conceptualizing the legal system broadly and for reflecting complex interactions with the rest of social life. Rather than focus on individual cases as the unit of analysis in which cases are largely independent of each other, Case Congregations focuses on “congregations” of cases as the cases interact and the congregations evolve over time. Like a naturalist, Galanter creates a taxonomy of cases with populations, families, and congregations of cases.

I defy you to read this article and think of litigation the same way ever again.

The legal profession and academy – and the dispute resolution field in particular – have been so fortunate for Marc Galanter’s great contributions to our world.

By Dr Benjamin Hayward and Dr Drossos Stamboulakis

‘Those of you who have been to a dry cleaner in the United States may have seen a sign that says, “Fast. Good. Cheap. Pick two.” What this means is that you can have your dry cleaning good and fast, but it won’t be cheap. Or you can have it good and cheap, but it won’t be fast. Or you can have it fast and cheap, but in that case it won’t be good. What you can’t have is all three …

Some people … seem to think that what applies to dry cleaning doesn’t apply to international arbitration.” [1]

Image: Cosmocatalano, public domain

Alternative dispute resolution might be alternative to the courts, but that doesn’t mean it’s disconnected.

International commercial arbitration and the courts have an important, and mutually beneficial, relationship. Arbitration relieves pressure on our civil justice system. Courts use their powers to support the arbitral process and enforce arbitral awards. Arbitration and the courts also can – and do – learn from each other.

This last notion might seem strange, given that arbitration was traditionally seen as quicker and cheaper than litigation. The reality now, however, is that both arbitration and litigation can be time consuming and expensive. In light of this reality, both dispute resolution mechanisms have sought to improve their procedures over time. When arbitration innovates, courts learn. And when courts innovate, arbitration learns too.

All the while, both dispute resolution mechanisms must also deal with inevitable tensions arising between speed, quality, and cost.

In recent years, a number of international commercial courts (ICCs) have been established around the world. To take just two examples, there are ICCs in Singapore and also in China. They exist as part of those countries’ regular (national) court systems, but they specialise in hearing international commercial cases. Australia doesn’t yet have an ICC. Establishing an Australian ICC has been proposed, though the idea is also controversial for some.

If an Australian ICC was to be established, in the future, what could it learn from arbitration?

Potentially, quite a lot: especially given that ICCs aim to attract disputants, and as a result, they might draw inspiration from some of arbitration’s ‘distinctive features’.

One of those features is the power held by parties to select their arbitrators. Of course, you can’t pick your judge in court. However, an ICC can be constituted by judges having a range of international backgrounds and having specialist international expertise. Arbitration is also renowned for its procedural flexibility. An ICC might take a more flexible approach to the taking of evidence, and the process of proving foreign law. ICCs may similarly allow for representation by foreign lawyers. An ICC might further learn from arbitration’s capacity to offer more limited discovery than traditional litigation.

As courts, however, ICCs also bring with them their own benefits. They include, for example, the judiciary’s contribution to the ongoing development of commercial law via the doctrine of precedent, and its ability to offer greater and more directive case management features designed to promote proportionality in the pursuit of civil justice. ICCs can also more readily act beyond the parties’ autonomy, such as by joining third parties to proceedings where beneficial and expedient to do so.

Though historically thought of as rivals, arbitration and the courts have always learned from each other. The genesis of ICCs merely makes this process explicit, shedding light on the ongoing and conscious hybridisation of dispute resolution procedures in commercial dispute resolution. It is this potential for greater responsiveness to the needs of commercial disputants, premised upon procedural innovation in the pursuit of just and efficient outcomes, that underpins the potential of a future Australian International Commercial Court.

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[1] Jennifer Kirby, ‘Efficiency in International Arbitration: Whose Duty Is It?’ (2015) 32(6) Journal of International Arbitration 689, 690.

The authors are members of the Monash University Faculty of Law’s Commercial Disputes Group.