Hostname: page-component-78c5997874-94fs2 Total loading time: 0 Render date: 2024-11-17T14:56:28.833Z Has data issue: false hasContentIssue false
  • English
  • Français

Do The “Haves” Come Out Ahead? Winning and Losing in State Supreme Courts, 1870–1970

Published online by Cambridge University Press:  01 July 2024

Stanton Wheeler ,
Bliss Cartwright ,
Robert A. Kagan  and
Lawrence M. Friedman
Rights & Permissions [Opens in a new window]

Abstract

Core share and HTML view are not available for this content. However, as you have access to this content, a full PDF is available via the ‘Save PDF’ action button.

This paper tests the hypothesis that financially and organizationally stronger parties tend to prevail in litigation against weaker parties, either because the normative structure of the American legal system has favored “the haves,” or because judges' attitudes do, or because stronger parties have strategic and representational advantages in litigation. The study is based on a sample of 5,904 cases from sixteen state supreme courts, 1870–1970. According to our data, stronger parties, especially larger governmental units, did tend to achieve an advantage over weaker parties, but the advantage generally was rather small. The stronger parties' edge recurs in subsamples for different types of cases, time periods, and types of legal representation. It is attributed in part to the greater litigational capabilities of stronger parties.

Type
Research Article
Information
Law & Society Review , Volume 21 , Issue 3 , 1987 , pp. 403 - 445
Copyright
Copyright © 1987 The Law and Society Association.

Footnotes

This paper was presented at the Annual Meeting of the Law and Society Association, Chicago, May 29–June 1, 1986. It profited from suggestions made when it was presented to a Law, Economics, and Organization Workship at Yale Law School, New Haven, in April 1985, and most particularly from critiques by Robert Ellickson and George Priest. Further helpful points were made when it was presented at the Center for the Study of Law and Society at the University of California, Berkeley. Special thanks, too, to Thomas Davies for his detailed and insightful criticisms, only some of which we have been able to respond to adequately. The original research was supported by the National Science Foundation Program in Law and Social Science Grant No. GS–384–13.

References

BLACK, Donald J. (1976) The Behavior of Law. New York: Academic Press.Google Scholar
CANON, Bradley, and Dean, JAROS (1969) “State Supreme Courts—Some Comparative Data,” 42 State Government 260.Google Scholar
CARTWRIGHT, Bliss (1975) “Conclusion: Disputes and Reported Cases,” 9 Law & Society Review 369.Google Scholar
CHIN, Audrey, and Mark, PETERSON (1985) Deep Pockets, Empty Pockets: Who Wins in Cook County Jury Trials. Santa Monica, CA: Rand Corporation.Google Scholar
DAVIES, Thomas Y. (1982) “Affirmed: A Study of Criminal Appeals and Decision-Making Norms in a California Court of Appeal,” 1982 American Bar Foundation Research Journal 543.Google Scholar
DWORKIN, Ronald (1967) “The Model of Rules,” 35 University of Chicago Law Review 14.Google Scholar
FRIEDMAN, Lawrence M. (1985) Total Justice. New York: Russell Sage Foundation.Google Scholar
FRIEDMAN, Lawrence M. (1985) A History of American Law. New York: Simon & Schuster.Google Scholar
FRIEDMAN, Lawrence M., KAGAN, Robert A., CARTWRIGHT, Bliss, and Stanton, WHEELER (1981) “State Supreme Courts: A Century of Style and Citation,” 33 Stanford Law Review 773.Google Scholar
FRIEDMAN, Lawrence M., and Robert V., PERCIVAL (1981) The Roots of Justice: Crime and Punishment in Alameda County, California, 1870–1910. Chapel Hill: University of North Carolina Press.Google Scholar
GALANTER, Marc (1975) “Afterward: Explaining Litigation,” 9 Law & Society Review 347.Google Scholar
GALANTER, Marc (1974) “Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Legal Change,” 9 Law & Society Review 95.Google Scholar
HARRIS, Peter (1985a) “Difficult Cases and the Display of Authority,” 1 Journal of Law, Economics and Organizations 209.Google Scholar
HARRIS, Peter (1985b) “Ecology and Culture in the Communication of Precedent among State Supreme Courts, 1870–1970,” 19 Law & Society Review 449.Google Scholar
HEINZ, John P., and Edward O., LAUMAN (1982) Chicago Lawyers: The Social Structure of the Bar. New York: Russell Sage Foundation.Google Scholar
HOFFERBERT, Richard (1968), “Socioeconomic Dimensions of the American States: 1890–1960,” 12 Midwest Journal of Political Science 401.Google Scholar
HOWARD, J. Woodford (1981) Courts of Appeals in the Federal Judicial System: A Study of the Second, Fifth and District of Columbia Circuits. Princeton: Princeton University Press.CrossRefGoogle Scholar
KAGAN, Robert A. (1984) “The Routinization of Debt Collection: An Essay on Social Change and Conflict in the Courts,” 18 Law & Society Review 323.Google Scholar
KAGAN, Robert A. (1978) Regulatory Justice: Implementing a Wage-Price Freeze. New York: Russell Sage Foundation.Google Scholar
KAGAN, Robert A., CARTWRIGHT, Bliss, FRIEDMAN, Lawrence M., and Stanton, WHEELER (1978) “The Evolution of State Supreme Courts,” 76 Michigan Law Review 961.Google Scholar
Stanton, WHEELER (1977) “The Business of State Supreme Courts, 1870-1970,” 30 Stanford Law Review 121.Google Scholar
KAGAN, Robert A., INFELISE, Bobby D., and Robert R., DETLEFSEN (1984) “American State Supreme Court Justices, 1900–1970,” 1984 American Bar Foundation Research Journal 371.Google Scholar
LEFF, Arthur A. (1970) “Injury, Ignorance and Spite—The Dynamics of Coercive Collection,” 80 Yale Law Journal 1.Google Scholar
MARVELL, Thomas (1978) Appellate Courts and Lawyers: Information-Gathering in the Adversary System. Westport, CT: Greenwood Press.Google Scholar
MEEKER, James W. (1984) “Criminal Appeals over the Last 100 Years,” 22 Criminology 551.Google Scholar
OLSON, Susan M. (1984) “Challenges to the Gatekeeper: The Debate over Federal Litigating Authority,” 1984 Judiciature 71.Google Scholar
PARTRIDGE, A., and G., BERMANT (1978), The Quality of Advocacy in the Federal Courts. Washington, DC: Federal Judicial Center.Google Scholar
POSNER, Richard (1972) “The Behavior of Administrative Agencies,” 1 Journal of Legal Studies 305.Google Scholar
PRIEST, George and Benjamin, KLEIN (1984) “The Selection of Disputes for Litigation,” 12 Journal of Legal Studies 1.Google Scholar
RABIN, Robert (1972) “Agency Criminal Referrals in the Federal System: An Empirical Study of Prosecutional Discretion,” 24 Stanford Law Review 1036.Google Scholar
SHAPIRO, Martin (1975) “Courts,” in Greenstein, F. and Polsby, N. (eds.), Handbook of Political Science, Vol. 5. Reading, MA: Addison-Wesley.Google Scholar
TRAYNOR, Roger J. (1970) The Riddle of Harmless Error. Columbus: Ohio State University Press.Google Scholar
WALKER, Jack (1969) “The Diffusion of Innovations among the American States,” 63 American Political Science Review 880.Google Scholar
YALE LAW JOURNAL (1979) “Note: Courting Reversal: The Supervisory Role of State Supreme Courts,” 87 Yale Law Journal 1191.Google Scholar