When the “Haves” Hold Court: Speculations on the Organizational Internalization of Law

Abstract

Marc Galanter's 1974 essay, “Why the ‘Haves’ Come Out Ahead,” portrayed large bureaucratic organizations as the archetypal repeat players in the legal system; Galanter's account, however, devoted relatively little attention to the distinctive legal capacities of organizations as organizations. This article extends Galanter's analysis by considering the ability of large bureaucratic organizations to “internalize” legal rules, structures, personnel, and activities. Specifically, we posit that the relationship between law and organizations has undergone four interrelated shifts in recent years: (1) the legalization of organizational governance, (2) the expansion of private dispute resolution, (3) the rise of in-house counsel, and (4) the reemergence of private policing. These processes interact with one another to transform the large bureaucratic organization from being merely a repeat player in the public legal system to being a full-fledged private legal system in its own right. Although “have not” groups may gain some short-run advantages from the introduction of citizenship norms into the workplace, the organizational annexation of law subtly skews the balance between democratic and bureaucratic tendencies in society as a whole, potentially adding to the power and control of dominant elites.

Settling for Less? Organizational Determinants of Discrimination-Charge Outcomes

“…Establishments familiar with the charge resolution process can strategically manage how they disclose such evidence to EEOC investigators. Indeed, in recent years organizations have increasingly established internal legal or human resource units whose primary responsibilities include dealing with employee disputes (see Edelman & Suchman 1999;Heinz et al 1998;Westin & Feliu 1988). The presence of such specialized legal units and actors allows organizations to draw on pre-established routines to manage the uncertainty associated with accusations of discrimination and ensures calculated responses to claims.…”

The effects of legal and extra-legal characteristics on organizational victim decision-making

“…The recent scandals in corporate America may be attributed, at least in part, to the failure of control mechanisms, and legislation designed to prevent future accounting failures has focused on improving internal controls [104]. Increased use of internal controls suggests attention to the changing legal environment, and reflects internalization of law [35,36]. Consistent with organization theory, it is anticipated that victims with greater access to internal social control will be more likely to pursue formal legal mobilization.…”

“…One approach to the study of organizations' legal environments that has received considerable attention is the rational materialist perspective [35,36,119]. Under this framework, organizations are rational, wealthmaximizers who may invoke or evade the law based on their own economic interests.…”

“…Organizational decision-making Legal decision-making scholarship has evolved from sociological as well as law and society traditions [35,36,119,129]. One approach to the study of organizations' legal environments that has received considerable attention is the rational materialist perspective [35,36,119].…”

INSTITUTIONAL CHANGE THROUGH INTERSTITIAL EMERGENCE: The Growth of Alternative Dispute Resolution in U.S. Law, 1970-2000

“…In a mid-1990s national survey of "mediation center" program managers, for example, 57% of respondents reported local public moneys as the "primary" source of funding for their center (McKinney, Kimsey, Fuller 1996: 158), nearly 50% reported employing professional staff members (1996: 166), and nearly all respondents reported extensive formal linkages with or being located in courts (1996: 159). Moreover, mediation and other ADR techniques are an increasingly routine practice in law firms and a pervasive form of dispute settlement organizations (Sutton, Dobbin, Meyer, and Scott 1994;Edelman and Suchman 1999). In sum, the professionalization of mediation and the ubiquitous appearance of ADR statutes and courtbased programs in the U.S. capped off three decades of interstitial emergence during which ADR was transformed from a set of little-noticed techniques used in the shadows of the legal and other fields to an increasingly conventional set of practices used both by practitioners within and between established fields.…”