Academic journal article Political Research Quarterly

Why the Haves Don't Always Come out Ahead: Repeat Players Meet Amici Curiae for the Disadvantaged

Academic journal article Political Research Quarterly

Why the Haves Don't Always Come out Ahead: Repeat Players Meet Amici Curiae for the Disadvantaged

Article excerpt

The question of who wins and loses in American courts has traditionally been viewed as one of the central questions in the study of judicial politics. State supreme courts are particularly important in this regard since they are the final arbiters for the vast majority of litigation in the nation. In this article we examine the relationship between the status of litigants, especially the comparison of repeat player "haves" to oneshotters who are ususally "have nots," appearing as litigants in state supreme courts, and their rates of success in that forum. A quarter of a century ago, Galanter (1974) made a compelling case for the proposition that the haves' tend to come out ahead in litigation." Since then, studies have confirmed the advantages of repeat players in the context of a wide variety of courts. But none of these party capability studies have considered whether the oft-found advantages of repeat litigants can be offset by the addition of support for their opponents from organized groups appearing as amid curiae. The present analysis seeks to explore how the normal advantages of the repeat players are modified by the entry of amicus curiae in support of one-shot disadvantaged litigants. Testing these ideas in the context of three state supreme courts, we find that group support through filing briefs of amicus curiae, is successful in neutralizing the normal advantage of upperdogs in court. In all three courts, disadvantaged litigants with group support were substantially more successful than similar litigants without group support. In contrast, the additional support provided by amici did little to increase the probability of success of litigants who were themselves repeat players.

The question of who wins and loses in American courts may be the most important question we seek to answer as judicial scholars. In fact, "Who gets what ?" has traditionally been viewed as the central question in the study of politics generally. Therefore, understanding who wins in the courts is an essential component of a full appreciation of "the authoritative allocation of values" in society (Easton 1953). State supreme courts are particularly important in this regard since they are the final arbiters for the vast majority of litigation in the nation. In this study we examine the relationship between the status of litigants, especially the comparison of repeat player "haves" (RP) to one-shotters (OS) who are usually "have-nots,"' and their rates of success in state supreme courts. We are especially concerned with how the normal advantages of the RPs are modified by the entry of amicus curiae in support of OS disadvantaged litigants.

Two largely separate streams of research have previously explored the question of who wins and who loses in court. On the one hand, a long string of studies employing what is generally referred to as "party capability theory" have examined how the resources and litigation experience of litigants affects their chances for success. Alternatively, a long line of studies has examined the role of interest groups as sponsors of litigation and as amici curiae to determine whether groups can effectively use the courts to bring about desired changes in public policy Unfortunately, party capability studies have rarely examined how the entry of interest groups in support or opposition of a given litigant may modify the effects of litigant resources. Similarly, prior studies of interest group use of the courts have not examined whether or not the characteristics of the litigants they support are related to their chances of success. The present study seeks to bridge the isolation of these two lines of research with a focus on the relationship of interest group participation to the success of different classes of litigants. We specifically examine first, whether the findings of party capability theory must be modified to account for the presence or absence of amicus support; and second, whether the nature of the litigant supported or opposed by interest groups may affect the chances of interest group success in court. …

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