complain. Among those who do complain, only a limited number take steps to
consult a lawyer, and increasingly there are non-lawyers who work as representa-
tives in some alternative form of dispute resolution (Kritzer 1998 ). For those who
do seek legal counsel, relief is often secured without proceeding to actual litigation.
When lawyers (or their functional equivalents) are unable to secure a settlement, it
is only then that individuals actually turn to the courts (Miller and Sarat 1980 – 81 ).
Thus, however large the number of individuals who go to court may be, it
is inevitably only a small fraction of the number that could turn to the
judicial system.
Knowing which litigants ultimately enter the process of litigation is important,
because it is their substantive claims which, taken together, constitute the range of
possible policies to which courts can address themselves. As passive policy-makers,
judges can speak only to those concerns that are brought to the courthouse door.
If a representative sample of potential legal claims makes its way onto the courts’
dockets, then judges will have as broad a set of issues as possible within which to
articulate policy. If, on the other hand, there are systematic diVerences between
those whocouldgo to court and those who, in fact,dogo to court, then those
diVerences necessarily limit the available policy options.
Do actual litigants diVer from potential litigants? In fact, scholars have known
for some time that those who choose to go to court are quite diVerent from those
who do not. The universe of would-be litigants consists principally of two groups:
large, aggregated interests, such as corporations and governments, that have greater
resources, expertise, and access to legal representation, and smaller, more particu-
larized interests, such as individuals and small businesses, that possess fewer
resources and less sophistication and experience with the judicial system (Galanter
1974 ). Because the former are regular participants in the judicial process, they are
commonly known as ‘‘repeat players.’’ The latter group—the ‘‘one-shotters’’—are
distinctive for their more limited use of litigation.
Although there is obviously variation across courts, the use of the judicial system
is favored by larger, wealthier interests. Because of their resources and expertise, the
repeat players litigate more often—and win more often—than the one-shotters.
ThisWnding seems to hold at diVerent levels of the judicial system (Farole 1999 ;
Songer, Sheehan, and Haire 1999 ) as well as across diVerent countries. (Dotan 1999 ;
Flemming 2005 ). To some extent, however, the bias in favor of the repeat player is
mediated by the participation of interest groups in the judicial process. Because
organized interests constitute one variety of repeat player, the sheer diversity of
interests that use litigation ensures that voices from across the socioeconomic
spectrum will enjoy the beneWts of sophisticated and experienced representation
in the courts (Caldeira and Wright 1990 ). Across a range of countries, organized
interests provide these advantages (Brodie 2002 ; Epp 1998 ).
This diVerentiation among litigants is vital to an understanding of judicial
policy-making, since lawyers and organized interests provide an important framing
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