ACCURACY OR AFFILIATION?
How does a judge react to the parties in front of her? Does she decide based on which side clearly has the stronger arguments, more information, and better advocates—or does she side with the party with whom she feels an affiliation? It is likely some combination of the two—although some judges may be clinical in separating out any personal views, others may be almost irrationally blinded to the weakness of their side.
Some parties may be able to provide judges with better information and arguments, all other things being equal. Galanter, for example, argued that parties from members of the legal profession.” Edward Clark, “The needs of the Many and the needs of the Few: A New System of Public Interest Intervention for New Zealand” (2005) 36 Victoria University of Wellington Law Review 71 at 76, 81, n. 23.
- 16. Civil Procedure India, supra note 13, Order I, Rule 8A.
- 17. Benjamin Alarie & Andrew Green, “Interventions at the Supreme Court of Canada: Accuracy, Affiliation, and Acceptance” (2010) 48 Osgoode Hall LJ 381 at 382 [Alarie & Green, “Interventions”].
- 18. Lorne Neudorf, “Intervention at the UK Supreme Court” (2013) 2:1 Cambridge Journal of International and Comparative Law 16, at 24.
- 19. Susan Kenny, “Interveners and Amici Curiae in the High Court” (1997) 1 Federal Judicial Scholarship (arguing that “[f]or interveners the test should be whether the ‘special interests’ of the applicant are, or are likely to be, affected by a decision in the proceeding. For amici, the test should be whether the applicant has some expertise, knowledge, information, or other insight which is not available to the parties and which is likely to assist the Court in arriving at a correct determination”).
with greater or superior resources (the “haves”) are more likely to win than those with fewer or inferior resources (the “have-nots”). It is not only wealth that matters. As Wheeler et al. note, “the greater resources of stronger parties presumably confer advantages beyond hiring better lawyers on appeal. Larger organizations may be more experienced and thus better able to conform their behaviour to the letter of the law or to build a better trial court record, matters on which we have no evidence. Experience and wealth also imply the capacity to be more selective in deciding which cases to appeal or defend when the lower court loser appeals” On this view, governments would fare better than businesses, and businesses better than individuals, based on the relative resources of each type of party.
Further, as experience itself is a kind of resource, litigants who are repeat players—that is, have been before the court before—should have an advantage. The expectation is that repeat players should win more consistently than “one- shotters.” Repeat players may have an informational advantage as they may know better what kind of information judges want to hear. It is not an entirely clear story, however. Repeat players may also benefit from affiliation, which we will discuss later, in that judges learn to recognize and agree with certain parties or counsel over time. Either way, the government should be the most powerful repeat player, not only because it is frequently involved in litigation, but also because it has the expertise required to “self-select” the cases that are most likely to succeed.
Which groups are successful in front of a high court may change over time. In Canada, for instance, after the advent of the Charter in 1982, the status of individuals before the court was fundamentally changed in cases relating to fundamental rights and freedoms. Any change over time in a party’s success will have to take account of changes in law in determining whether particular litigants—individuals, businesses, government—have become more or less successful, and whether that success is attributable to their inherent characteristics or to evolving societal norms.
The alternate view, apart from the affiliation story we will discuss below, is that inequality of party resources should not matter in appellate courts. By the time the appeal reaches the highest level, the cases should be evenly matched
(or else the parties would have settled out of court). Smyth further suggests the opposite of Galanter’s thesis, namely that the weaker party should win in some situations. The party with more resources may have other motives than just winning the particular case: “testing the waters” for future cases, or appealing as a delaying tactic. Further, stronger parties may be less selective in which cases to litigate if they have ways to keep costs low.
A party’s resources include the money it can put toward gathering information and hiring counsel. However, parties may rely not only on their own resources but also on those of interveners. A party backed by an intervener, or more interveners than the other side, may have more information, more sophisticated (or at least more) arguments, and greater persuasive power. For instance, in the leading American case of Mapp v. Ohio, the Supreme Court adopted an argument that had been submitted only by the American Civil Liberties Union as an amicus, not by the parties, that the Constitution requires the exclusion of illegally seized evidence in criminal trials. Comparing across parties to see if judges are influenced by resources therefore needs to take account of any added help from interveners.
The first question to ask then is whether parties with greater resources win more, all other things being equal: Does the government generally fare better than businesses, and do businesses generally fare better than individuals? All other things being equal means in particular that judges are more likely to vote for the party with the greater resources, even taking into account any affiliation the judge may have with the parties—for example, that a judge would be more likely to vote for a business than an individual pursuing the same argument regardless of whether the judge had a conservative or liberal orientation. We would expect some variation in the power of resources from country to country, and even from court to court within a single country. We therefore will look to see if:
H1: Judges are more likely to vote in favor of the litigant with the greatest resources including number of interveners, controlling for the judge’s personal preferences.
-  Marc Galanter, “Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of LegalChange” (1974) 9 Law & Society Review 95 [Galanter, “Come Out Ahead”].
-  Stanton Wheeler et al., “Do the ‘Haves’ Come out Ahead? Winning and Losing in StateSupreme Courts, 1870-1970” (1987) 21:3 Law & Society Review 21 403 at 441 [Wheeler et al.].
-  Donald R. Songer, The Transformation of the Supreme Court of Canada: An EmpiricalExamination (Toronto: University of Toronto Press, 2008) at 86 [Songer, Transformation].
-  See Songer, Transformation, supra note 22 for a discussion of the influences on the SupremeCourt of Canada over time.
-  Russell Smyth, “The ‘Haves’ and the ‘Have Nots’: An Empirical Study of the Rational Actorand Party Capability Hypothesis in the High Court 1948-99” (2000) 35:2 Australian Journal ofPolitical Science 255 at 257 [Smyth, “The ‘Haves’ and the ‘Have Nots’ ”].
-  Smyth, “The ‘Haves’ and the ‘Have Nots’ ” supra note 24 at 257.
-  Williams, “Amicus Curiae,” supra note 10 at 376.
-  In the Tax Court of Canada, for instance, resources matter a great deal. See Benjamin Alarie& Andrew James Green, “Policy Preferences and Expertise in Canadian Tax Adjudication”(2014) 62:4 Canadian Tax Journal 985.