HOW DO JUDGES RELATE TO THE LITIGANTS?
In theory then there are two very different ways in which judges may take into account the litigants in front of them—as clear-eyed calculators taking in the best information from whatever source, or as loyal followers searching for signals of which party represents their preferred view. The truth likely lies in a mix and may vary depending on how the particular court is set up or who is on the court. Looking across high courts, a few similarities emerge.
Judges Are More Likely to Vote in Favor of the Litigant with the Greatest Resources, Sometimes
As we saw in Figure 7-1, looking just at which parties win more before courts, some patterns emerge. In the united States, Canada, and the uK in the period 1970 to the early 2000s, resources appear to matter—government wins more than businesses, which win more than associations, which in turn win more than individuals. The relative win rates are strikingly similar. Government wins about 60 percent of the time it is involved in an appeal whereas individuals do only a little less than 40 percent. In other countries, however, although government still does relatively well, its success rate is less than 50 percent and some other party does even better. For India, for example, the government is successful only around 40 percent of the time, and businesses have a slightly higher success rate. Individuals in Australia are the most successful, winning about 50 percent of the time with government slightly behind with about a 45 percent success rate.
This story of resources is consistent with the existing empirical work on how judges on particular high courts respond to different types of litigants.
However, these differences may be due to other factors. For example, litigants may have differing success rates in different areas of law. Once we control for the area of law, much of the government advantage appears to disappear. Figure 7-5 shows the differences in the win rates of different parties relative to the putatively weakest party—individuals. Canadian governments most clearly have greater success whether they are appellants or respondents, with an almost 20 percent greater probability of success than individuals.35 Businesses and associations, on the other hand, do not really have any apparent greater success in Canada than individuals despite in theory having greater resources.36
The story is comparable at the uS Supreme Court.37 Prior studies had found that the federal government is really the only party that consistently comes out ahead, winning about two-thirds of the time overall compared to a little under
For Australia, see e.g. Smyth, “The ‘Haves’ and the ‘Have Nots’ ” supra note 24.
For a more complete listing of such articles, see Brian Glenn, “The Varied and Abundant Progeny” in Herbert M. Kritzer & Susan S. Silbey, eds, In Litigation: Do the “Haves” Still Come Out Ahead? (Stanford, CA: Stanford University Press, 2003) 371.
- 35. These findings are consistent with prior work both on Canadian Courts of Appeals and the Supreme Court of Canada. On the courts of appeal, see McCormick, Canada’s Courts, supra note 1 at 158. McCormick as well as Haynie et al. also found that justices on the Supreme Court of Canada were more likely to favor litigants with more resources—and in particular government, which as in the United States tended to win about two-thirds of the time in the 1990s. McCormick, Canada’s Courts, supra note 1 at 164 (finding the federal government won about 62 percent of the time, large business about 57 percent of the time, and individuals about 45 percent). Stacia Haynie et al., “Winners and Losers: Appellate Court Outcomes in a Comparative Context” (Paper delivered at the annual meeting of the American Political Science Association, Washington, DC, September 1, 2005) [unpublished] at 108 [Haynie, “Winners and Losers”]; McCormick, “Party Capability,” supra note 34.
- 36. However, see Songer, Transformation, supra note 22 at 94-95 (finding individuals actually fare well against businesses).
- 37. Galanter, who initially worked on this resource story, confirmed that resources matter in US trial courts. Galanter, “Come Out Ahead,” supra note 20. Resources do appear to also matter at the State Supreme Court level (Brace & Hall, “Versus,” supra note 34 at 409 (finding a have- not with a lawyer is more likely to succeed); Grossman, Kritzer & Macaulay, supra note 34 at 806 (factors that may indicate a shift in favor of have-nots include the rise of contingency fees and punitive damages and the increasing specialization of lawyers). Resources have also been found to be influential at the Courts of Appeal (Susan Brodie Haire, Roger Hartley & Stefanie A. Lindquist, “Attorney Expertise, Litigant Success, and Judicial Decisionmaking in the U.S. Courts of Appeals” (1999) 33:3 Law & Society Review 667 (finding in products liability cases that non-specialized lawyers have a lower success rate at the Court of Appeals than specialized lawyers). Songer and Sheehan argue that at least at the Courts of Appeal, a lack of control over the cases they hear results in weak appeals by individuals that governments and business can overcome (Donald R. Songer & Reginald S. Sheehan, “Who Wins on Appeal? Upperdogs and Underdogs in the United States Courts of Appeals” (1992) 36:1 American Journal of Political
Figure 7-5 Difference in win rates of governments, businesses, and associations as opposed to individuals whether as appellants and respondents (percent), 1970 to early 2000s.
The bars represent the estimated percent difference whereas the lines are the 95 percent confidence intervals. These differences were found by regressing whether the appellant or respondent won on the type of party, controlling for the area of law and a time trend. Government most clearly dominated individuals and other litigants in the united States and Canada as appellant or respondent, followed by the government as appellant in the uK. The government appears to have no advantage over other litigants in India and Australia.
half for businesses and individuals (and about a third for poor individuals), but that there is no consistency over time.38 When we take account of the area of law, Figure 7-5 shows that the picture becomes more complicated if we break it down into success as appellants and respondents. governments are about 15 percent more likely to be successful than individuals, and businesses about 5 percent more likely than individuals when acting as appellants. Similarly, when acting as the respondent, government wins at about 15 percent more than individuals, whereas both associations and businesses appear to fare about the same as individuals as respondents. Other factors than resources may be at work, such as the ideological makeup of the court at any given time, which we discuss below.39
The “Resources Matter” story does not really play out in the other countries.40 The government had about a 9 percent greater probability of winning as appellant before the House of Lords, but there is no statistically significant difference in the win rates for any other parties as appellants or respondents. earlier studies had also found that the government has a distinct advantage before the House of Lords, although there is little difference between all other actors.41 given how recently the uK Supreme Court was formed, data are scarce—though the advantage of the government may have diminished, with the exception of certain areas such as criminal law and tax.42
Figure 7-5 shows that there is no real difference across any of the parties acting either as appellants or respondents in either India or Australia.43 Similarly, Smyth found that for judges on the Australian High Court resources of the
Science 255). Farole, supra note 34 at 1054-1055 (arguing the main advantage is held by government litigants over nongovernmental litigants and that businesses had only a small advantage over individuals (with larger businesses having a greater advantage)).
- 38. Sheehan et al., “Ideology”’ supra note 2 at 468.
- 39. Sheehan et al., “Ideology,” supra note 2 at 468.
- 40. In Israel, on a basic level, the “have-nots” lose consistently. Still, there are certain complexities. For instance, the kind of have-not matters in Israel: prisoners have a low success rate, but immigrants have a higher one. Dotan, “Resource Inequalities,” supra note 5 at 1069, 1071.
- 41. Hanretty, “Haves,” supra note 34 at 695. Atkins, “Party Capability,” supra note 34 at 897 found that the party capability theory played out at the Court of Appeal.
- 42. Alan Paterson, Final Judgment: The Last Law Lords and the Supreme Court (Oxford: Hart, 2013) at 57.
- 43. But see Reginald S. Sheehan & Kirk A. Randazzo, “Explaining Litigant Success in the High Court of Australia” (2012) 47:2 Australian Journal of Political Science 239 at 246 [Sheehan & Randazzo] (finding that when we look only at success as appellants, the order is national government (52.9%) > individual (50.5%) > subnational government (47.6%) > business (41.2%)).
litigating parties don’t matter. However, more recently, as an appellant, the national government in Australia has had an advantage over other actors, whereas individuals are second in the hierarchy. In India, differences in success rates across parties are non-existent, once area of law is taken into account (Figure 7-3), in line with other work that found that gaps in success rates between parties are not large.
In sum, the resource story does not play out clearly across courts if we differentiate by whether the parties are appealing or responding and we control for different areas of law. Part of the problem may be that comparing the success rates of the various parties across high courts is difficult as a party’s influence on judicial decision-making may depend on institutional factors. For instance, caseload, docket control, the role of the court, and the length of oral argument are all factors that potentially affect a judge’s decision; predictably, the relative capabilities of parties will interact differently with these factors depending on the institutional context.
There is some limited support for a further application or implication of the resource theory—that repeat players should win more. We would expect, from the resources story, repeat players to have a noticeable advantage over infrequent users of the court system. They may have greater knowledge of how to use the system, which arguments work, or which cases to bring forward. All this experience can be viewed as a form of resource.
Government in particular may be the ultimate repeat player. In the United States, there is no doubt that the government is a powerful repeat player. However, it is difficult to isolate the reason for the government’s success: its experience, or some other reason. There may, for example, be an element of deference; courts in the United States frequently defer to government representatives, such as the solicitor general, certain prosecutors, or government agencies in administrative law. However, the government’s repeated interaction with high courts may in part explain their success rate beyond resources and other issues such as deference.
Even beyond government, other parties may gain an advantage from appearing more often before the courts. In Canada, since the advent of the Charter of Rights and Freedoms, Brodie and Morton found that certain groups that used to be disadvantaged have since been given the resources required to become repeat players and start winning, in particular, official language minority groups, feminists, and homosexual rights groups. The government in Canada does not have a consistent advantage in the equality area, but Charter issues overshadow factors such as resources and repeat player status—individuals are using their rights and freedoms successfully against the government. Similarly, in the UK, Hanretty found that experience is a more important indicator of future outcome than prior rates of success. Repeat players before the Israeli Supreme Court have a much higher success rate than infrequent petitioners. Among the most successful repeat players are interest groups, with their success due in part to their specialization.
Overall, the “resources matter” story has only limited support when we look across courts. Parties with more resources, including experience, do tend to do better before some courts, such as the Supreme Court of Canada. In part, however, even when resources appear to matter, the success rates show what Kritzer calls the “government gorilla”, that is, that it is not all the “haves” who come out ahead, but really just the government. As we saw, governments may succeed not only because of resources but other factors such as judges deferring to government, or government selecting its cases more carefully and appealing only those that are most likely to succeed. It is also difficult to separate out resources from other factors such as law or institutional choices.
-  For uS studies, see e.g. Wheeler et al., supra note 21; Donald J. Farole, Jr, “ReexaminingLitigant Success in State Supreme Courts” (1999) 33:4 Law & Society Review 1043 [Farole];Donald R. Songer, Reginald S. Sheehan & Susan Brodie Haire, “Do the ‘Haves’ Come OutAhead over Time? Applying Galanter’s Framework to Decisions of the U.S. Courts of Appeals,1925-1988” (1999) 3:4 Law & Society Review 811 [Songer et al., “Ahead over Time”]; Joel B.Grossman, Herbert M. Kritzer & Stewart Macaulay, “Do the ‘Haves’ Still Come Out Ahead?”(1999) 33:4 Law & Society Review 803 [Grossman, Kritzer & Macaulay]; Donald Songer, AshlynKuersten & Erin Kaheny, “Why the Haves Don’t Always Come Out Ahead: Repeat Players MeetAmici Curiae for the Disadvantaged” (2000) 53:3 Political Research Quarterly 537 [Songer,Kuersten & Kaheny]; Paul Brace & Melinda Gann Hall, “‘Haves’ versus ‘Have Nots’ in StateSupreme Courts: Allocating Docket Space and Wins in Power Asymmetric Cases” (2001) 35:2Law & Society Review 393 [Brace & Hall, “Versus”]. For Canada, see e.g. Ian Brodie & F.L. Morton, “Do the ‘Haves’ Still Come Out Ahead inCanada?” (The University of Western Ontario, 2004) [Brodie & Morton]; Peter McCormick,“Party Capability Theory and Appellate Success in the Supreme Court of Canada, 1949-1992”(1993) 26:3 Canadian Journal of Political Science 523 [McCormick, “Party Capability”]. For the UK, see e.g. Chris Hanretty, “Haves and Have-Nots before the Law Lords” (2014) 62Political Studies 686 [Hanretty, “Haves”]; Burton M. Atkins, “Party Capability Theory as anExplanation for Intervention Behavior in the English Court of Appeal” (1991) 35:4 AmericanJournal of Political Science 881 [Atkins, “Party Capability”]. For Israel, see e.g. Dotan, “Resource Inequalities,” supra note 5.
-  Smyth, “The ‘Haves’ and the ‘Have Nots,’ ” supra note 24 at 267. Similarly, in South Africa,the gap in success rates between individuals and government is not particularly large; furthermore, the success rate of corporations is lower than that of individuals. South Africa’s institutional structure may limit the advantage gained by party resources—as the Supreme Court doesnot have docket control and there is a cab-rank rule, whereby lawyers cannot readily declinecases, meaning judges may not be easily swayed by the fact that a prestigious lawyer took aparticular case. Stacia L. Haynie, “Oral Advocacy and Judicial Decision-Making in the SouthAfrican Appellate Courts” (2005) 21 South African Journal on Human Rights 473 at 483-484.
-  Sheehan & Randazzo, supra note 43 at 246, 254. See also Haynie et al., “Winners andLosers,” supra note 35 at 21 (finding that the national government used to have the lowest success rate whereas subnational governments had the highest success rate, with individuals second highest).
-  Herbert Hirsch & Gene L. Mason, “A Systems Analysis of the Indian Supreme Court” (1971)6:42/43 Economic and Political Weekly 2201 at 2207; George H. Gadbois, Jr., “Indian JudicialBehaviour” (1970) 5:3 Economic and Political Weekly 153.
-  See also Haynie et al., “Winners and Losers,” supra note 35.
-  One other implication is that parties with interveners should win more than they wouldotherwise, as interveners bring added resources to the case. We will discuss interveners in thenext section.
-  Galanter, “Come Out Ahead,” supra note 20.
-  Haynie, “Winners and Losers,” supra note 35 at 16. A similar explanation is proposed byStacia L. Haynie & Kaitlyn L. Sill, “Experienced Advocates and Litigation Outcomes: RepeatPlayers in the South African Supreme Court of Appeal” (2007) 60:3 Political Research Quarterly443 at 446-447 [Haynie & Sill, “Experienced Advocates”]. See also Kevin T. McGuire,“Explaining Executive Success in the U.S. Supreme Court” (1998) 51:2 Political ResearchQuarterly 505 at 522.
-  C.L. Ostberg & Matthew E. Wetstein, “Equality Cases and the Attitudinal Model in theSupreme Court of Canada” (Paper delivered at the annual meeting of the Canadian PoliticalScience Association, 2004) [unpublished] [Ostberg & Wetstein, “Equality Cases”].
-  Farole, supra note 34 at 1056.
-  Haynie and Sill, on the contrary, found that being a repeat player before the South AfricanSupreme Court of Appeal is not the best predictor of future outcome. Past success is a muchbetter predictor, as many repeat players are also repeat losers. Haynie & Sill, “ExperiencedAdvocates,” supra note 50 at 450.
-  Brodie & Morton, supra note 34 at 25.
-  Ostberg & Wetstein, “Equality Cases,” supra note 51 (finding that government did have aslight numerical advantage in equality cases but that the difference was not statistically significant). It may also be the lawyer’s status that matters as Szmer, Johnson, and Sarver found that alawyer’s previous litigation experience, as well as the size of the litigation team, has a statisticallysignificant positive effect on judges: John Szmer, Susan W. Johnson & Tammy A. Sarver, “Doesthe Lawyer Matter? Influencing Outcomes on the Supreme Court of Canada” (2007) 41:2 Law& Society Review 279 at 298.
-  Hanretty, “Haves,” supra note 34 at 695.
-  Yoav Dotan & Menachem Hofnung, “Interest Groups in the Israeli High Court ofJustice: Measuring Success in Litigation and in Out-of-Court Settlements” (2001) 23:1 Law &Policy 1 at 14 [Dotan & Hofnung, “Interest Groups”].
-  Dotan & Hofnung, “Interest Groups,” supra note 57 at 15-16. Similarly, Dotan found that“cause lawyers” are becoming effective as repeat player litigators in Israel as they are a highlycommitted and specialized group: Yoav Dotan, “Public Lawyers and Private Clients: AnEmpirical Observation on the Relative Success Rates of Cause Lawyers” (1999) 21:4 Law &Policy 401 at 416-417.
-  Herbert M. Kritzer, “The Government Gorilla: Why Does Government Come Out Aheadin Appellate Courts?” in Herbert M. Kritzer & Susan S. Silbey, eds, In Litigation: Do the “Haves”Still Come Out Ahead? (Stanford, CA: Stanford University Press, 2003) 342.
-  Songer, Transformation, supra note 22 at 109.