Shauhin A. Talesh, How the 'Haves' Come Out Ahead in the Twenty-First Century, 62 DePaul L. Rev. 519 (2013).
This paper attempts to bridge and link the “speculations” in Marc Galanter’s seminal article in 1974 regarding how repeat players influence public legal institutions by playing for favorable rules and Lauren Edelman and Marc Suchman’s hypotheses in 1999 that organizational repeat players have created a private legal order. In particular, I suggest the two theories need to be connected and explored empirically if we want to better understand the link between public and private legal orders and the effect public and private institutional arrangements have on statutorily created legal rights. I focus not just on how repeat players play for favorable rules in courts, but how organizations play for favorable dispute resolution structures that operate outside courts but are ultimately codified into law, deferred to by courts and alter the infrastructure of access for consumers. I use a case study of California consumer protection laws to show how manufacturers initially subject to powerful consumer protection laws, weakened the impact of these laws by creating dispute resolution venues. The legislature and courts subsequently incorporated private dispute resolution venues into statutes and court decisions and made consumer rights and remedies largely contingent on consumers using manufacturer-sponsored venues. In this instance, organizations created a private legal order, then influenced the public legal order, in order to utilize and maintain a private legal order. Thus, I offer a theory that explores how organizations seamlessly flow through these increasingly blurred boundaries between the public and private sphere and ultimately shape the content and meaning of law designed to regulate them in both domains.