Wednesday, July 18, 2007

Precis of the Day: Edelman and Suchman, "When The Haves Hold Court"

Citation:

Edelman, Lauren B. and Mark C. Suchman (1999) ‘‘When the ‘Haves’ Hold Court: The Internalization of Disputing in Organizational Fields,’’ 33 Law & Society Rev. 941–91


Thesis:

Edelman’s and Suchman’s article builds off of Galanter’s 1974 article “Why the ‘Haves’ Come Out Ahead,” in which Galanter argues that repeat players in the legal system enjoy a competitive advantage over one-shotter small plaintiffs or defendants.

Edelman and Suchman help to illuminate Galanter’s thesis by positing large bureaucratic organizations as the archetypal “repeat player.” Large bureaucratic organizations are in the best position to affect public law (statutes, precedents) and to benefit from repeat use of the legal system to secure verdicts in their favor. The authors further build on Galanter’s initial premise by portraying large bureaucratic organizations as having developed their own internal legal systems.

The internalization of the legal system by large organizations have taken the following forms:
1. Legal rule-making: The ‘legalization’ of individual firms and of larger organizational fields.
2. Legal dispute processing: The increasing use of alternative dispute resolution in both intra- and interorganizational conflicts
3. Legal expertise: growing prominence and changing role of organizational in-house counsel
4. Legal enforcement: the re-emergence of private organizational security staffs.

Methodology:

A non-empirical, “theoretical” piece! I like the departure.

Conclusion, Findings:

Thus, the “Haves” “hold court in the sense that they incorporate and thus subsume many essential functions of the public legal system, becoming semi-autonomous legal regimes in their own right. The Internalization of Law occurs within organizations and throughout organizational fields. New business and legal models and practices become institutionalized among organizations (Powell and Dimaggio), and thus the four forms of internalized legal practices have diffused across organizational fields. Moreover, organizations internalize the law by creating and formalizing internal policies that mimic external principles of legality, such as due process and substantive justice, thus preempting and displacing the interventions of public legal authorities.

The organization thus acts as a “Court,” also functioning as lawmaker, judge, counsel, and cop. Organizations create their own rules and internal legal and grievance structures, thus creating the rules, enforcing the rules, and interpreting the rules (or violation thereof) and mediating and adjudicating the disputes. This “plenary power” position can both hurt and help the “have nots” in disputes with and within their organizations by promoting efficiency and providing therapeutic “ventilating” functions (and citizenship norms), but possibly restricting the “have nots” access to rights they might get under the public law system.

“Internalized adjudication may put “have nots” at a disadvantage by depoliticizing and delegalizing conflict, divorcing grievances from principles of law.”: compare this to the Edelman/McCann/Bisom-Rapp thesis that rights-rhetoric is significant even in symbolic legal process. Moreover, the internalization of legal process by organizations, even if in the form of in-house counsel, reduces the role, or at least the centrality, of legal actors and the public legal system. The internalization of law benefits the “haves” by undercutting legal neutrality, formality, and most importantly, democratic governance.

Comments:

A very valuable addition to Galanter’s article. Galanter’s article was revolutionary in how it reframed the conceptualization of the adversary system, challenging assumptions of the equality of power between the players. Edelman’s and Suchman’s article takes this a step further by introducing a new conceptual framework for dispute resolution by organizations. Instead of analyzing how organizations operate within the public law system, Edelman and Suchman examine the internal legal system of organizations, challenging the very notion of the formal and public legal adjudication system.

Rating: *****

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