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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
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Abstract

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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.

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