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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.
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)).
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.