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“Haves” Versus “Have Nots” in State Supreme Courts: Allocating Docket Space and Wins in Power Asymmetric Cases

Published online by Cambridge University Press:  02 April 2024

Paul Brace  and
Melinda Gann Hall
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Abstract

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This article evaluates two basic issues about dockets and case outcomes in American appellate courts. First, what determines the extent to which a court devotes its docket to civil cases involving asymmetrical power relationships between litigants? Second, in civil cases in which the “have-nots” are pitted against the “haves,” which forces determine the extent to which courts favor the less privileged? To answer these questions, we identify power asymmetric civil cases and the size of each court's docket by examining all 6,750 cases decided in state supreme courts in 1996. Results reveal that contextual factors are formidable in shaping both agenda space and win rates in civil disputes involving conflicts between advantaged and disadvantaged litigants. Institutional features of supreme courts and state court systems, the supply of legal resources, and public preferences all emerge as critical influences on the willingness of the states' highest courts to decide have/have not conflicts and on the ultimate disposition of these cases. In sum, a comprehensive understanding of the ways in which courts treat cases involving the disadvantaged and, more broadly, function as agents of redistributive change cannot be achieved without focusing beyond the ideological preferences of judges and the skill of the litigants.

Type
Research Article
Information
Law & Society Review , Volume 35 , Issue 2 , 2001 , pp. 393 - 417
Copyright
Copyright © 2001 Law and Society Association.

Footnotes

Order of authorship is alphabetical. Earlier versions of this article were presented at the 2000 American Political Science Association Meeting in Atlanta, Georgia; the 2001 Meeting of the International Political Science Association Research Committee on Comparative Judicial Studies, Cape Town, South Africa; and the 2001 Meeting of the Law and Society Association, Budapest, Hungary. We wish to thank James Gibson for his thoughtful suggestions, Laura Langer for her suggestions and help with data, and Kevin Arceneaux, Thom Blalock, Chris Bonneau, Kellie Sims-Butler, and Martin Pressley for excellent research assistance on this project. This research was partly supported by the National Science Foundation Grants SBR9617190, SES9911082, SES9911166. The authors retain sole responsibility for any errors.

References

Atkins, Burton M. (1993) “Alternative Models of Appeal Mobilization in Judicial Hierarchies,” 37 American J. of Political Science 780–98.CrossRefGoogle Scholar
Atkins, Burton M., & Glick, Henry R. (1974) “Formal Judicial Recruitment and State Supreme Court Decisions,” 2 American Politics Quart. 427–49.CrossRefGoogle Scholar
Atkins, Burton M., & Glick, Henry R. (1976) “Environmental and Structural Variables as Determinants of Issues in State Courts of Last Resort,” 20 American J. of Political Science 97–115.CrossRefGoogle Scholar
Barker, Lucius (1967) “Third Parties in Litigation: A Systemic View of the Judicial Function,” 29 J. of Politics, February, 41–69.CrossRefGoogle Scholar
Brace, Paul, & Hall, Melinda Gann (1995) “Studying Courts Comparatively: The View from the American States,” 48 Political Research Quart. 5–29.CrossRefGoogle Scholar
Brace, Paul, & Hall, Melinda Gann (2000).Google Scholar
Brennan, William J. Jr. (1983) “Some Thoughts on the Supreme Court's Workload,” 66 Judicature 230–34.Google Scholar
Caldeira, Gregory A., & Wright, John R. (1988) “Organized Interests and Agenda-Setting in the U.S. Supreme Court,” 82 American Political Science Rev. December, 1109–27.CrossRefGoogle Scholar
Caldeira, Gregory A., & Wright, John R. (1990) “Amici Curiae before the Supreme Court: Who Participates, When, and How Much?” 52 J. of Politics, August, 782–806.CrossRefGoogle Scholar
Canon, Bradley C., & Jaros, Dean (1970) “External Variables, Institutional Structure, and Dissent on State Supreme Courts,” 4 Polity 185–200.Google Scholar
Champagne, Anthony, & Haydel, Judith, eds. (1993) Judicial Reform in the States. Lanham, MD: Univ. Press of America.Google Scholar
Comparato, Scott (1999) “Interest Groups, Amicus Briefs, and State Supreme Courts: The Importance of Institutions,” 20 American Rev. of Politics, Summer, 181–200.Google Scholar
Epp, Charles R. (1998) The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective. Chicago: Univ. of Chicago Press.CrossRefGoogle Scholar
Epstein, Lee (1990) “Interest Groups and the Courts,” in Gates, J. B. & Johnson, C. A., eds., The American Courts: A Critical Assessment. Washington, DC: CQ Press.Google Scholar
Epstein, Lee (1994) “Exploring the Participation of Organized Interests in State Court Litigation,” 47 Political Research Quart. 335–52.CrossRefGoogle Scholar
Erickson, Robert S., Wright, Gerald C. & McIver, John P. (1993) Statehouse Democracy: Public Opinion and Policy in the American States. New York: Cambridge Univ. Press.Google Scholar
Farole, Donald J. Jr. (1998) Interest Groups and Judicial Federalism: Organizational Litigation in State Judiciaries. Westport, CT: Praeger.Google Scholar
Farole, Donald J. Jr. (1999) “Reexamining Litigant Success in State Supreme Courts,” 33 Law & Society Review 1043–57.CrossRefGoogle Scholar
Galanter, Marc (1974) “Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Legal Change,” 9 Law & Society Rev. 95–160.CrossRefGoogle Scholar
Galanter, Marc (1975) Afterword, “Explaining Litigation,” 9 Law & Society Review 347–68.CrossRefGoogle Scholar
Glick, Henry R., & Pruet, George W. Jr. (1986) “Dissent in State Supreme Courts: Patterns and Correlates of Conflict,” In S. Goldman & C. Lamb, eds., Judicial Conflict and Consensus: Behavioral Studies of American Appellate Courts. Lexington, KY: Univ. Press of Kentucky.Google Scholar
Gray, Virginia, & Lowery, David (1998) “Representational Concentration and Interest Community Size: A Population Ecology Interpretation,” 51 Political Research Quart. 919–44.Google Scholar
Grossman, Joel B., Kritzer, Herbert M., Bumiller, Kristin, Sarat, Austin, McDougal, Stephen & Miller, Richard (1982) “Dimensions of Institutional Participation: Who Uses the Courts, and How?” 44 J. of Politics, February, 86–114.CrossRefGoogle Scholar
Harrington, Christine B., & Ward, Daniel S. (1995) “Patterns of Appellate Litigation,” in Epstein, L., ed., Contemplating Courts. Washington, DC: Congressional Quarterly Press.Google Scholar
Kagen, Robert, Cartwright, Bliss, Friedman, Lawrence M. & Wheeler, Stanton (1977) “The Business of State Supreme Courts, 1870–1970,” 30 Stanford Law Review 121–56.CrossRefGoogle Scholar
McGuire, Kevin T., & Caldeira, Gregory A. (1993) “Lawyers, Organized Interests, and the Law of Obscenity: Agenda-Setting in the Supreme Court,” 89 American Political Science Rev., September, 717–26.CrossRefGoogle Scholar
Murphy, Walter F. (1964) Elements of Judicial Strategy. Chicago: Univ. of Chicago Press.Google Scholar
O'Connor, Karen (1980) Women's Organizations' Use of the Courts. Lexington, MA: Lexington Books.Google Scholar
Pacelle, Richard L. Jr. (1991) The Transformation of the Supreme Court's Agenda: From the New Deal to the Reagan Administration. Boulder, CO: Westview Press.Google Scholar
Pacelle, Richard L. Jr. (1995) “The Dynamics and Determinants of Agenda Change in the Rehnquist Court,” in Epstein, L., ed., Contemplating Courts. Washington, DC: Congressional Quarterly Press.Google Scholar
Perry, H. W. Jr. (1991) Deciding to Decide: Agenda-Setting in the United States Supreme Court. Cambridge, MA: Harvard Univ. Press.Google Scholar
Peterson, Anne (1999) “Examining the Role of Representational Bias Between Interest Groups and State Supreme Courts,” 20 American Rev. of Politics, Summer, 201–12.Google Scholar
Provine, Doris Marie (1980) Case Selection in the United States Supreme Court. Chicago: Univ. of Chicago Press.Google Scholar
Rohde, David W., & Spaeth, Harold J. (1976) Supreme Court Decision Making. San Francisco: W. H. Freeman & Company.Google Scholar
Salokar, Rebecca Mae (1992) The Solicitor General: The Politics of Law. Philadelphia: Temple Univ. Press.Google Scholar
Schubert, Glendon (1962) “Policy Without Law: An Extension of the Certiorari Game,” 14 Stanford Law Rev. 284–327.CrossRefGoogle Scholar
Segal, Jeffrey A. (1988) “Amicus Briefs by the Solicitor General during the Warren and Burger Courts,” 41 Western Political Quart., March, 134–44.CrossRefGoogle Scholar
Sheehan, Reginald S., Mishler, William & Songer, Donald R. (1992) “Ideology, Status, and the Differential Success of Direct Parties Before the Supreme Court,” 86 American Political Science Rev. 464–71.CrossRefGoogle Scholar
Songer, Donald R., & Kuersten, Ashlyn (1995) “The Success of Amici in State Supreme Courts,” 48 Political Research Quart. 31–42.CrossRefGoogle Scholar
Songer, Donald R., & Sheehan, Reginald (1992) “Who Wins on Appeal? Upperdogs and Underdogs in the United States Courts of Appeals,” 36 American J. of Political Science 235–58.CrossRefGoogle Scholar
Songer, Donald R., Kuersten, Ashlyn & Kaheny, Erin (2000) “Why the Haves Don't Always Come Out Ahead: Repeat Players Meet Amici Curiae for the Disadvantaged,” 55 Political Research Quart. 537–56.Google Scholar
Songer, Donald R., Sheehan, Reginald S. & Haire, Susan Brodie (1999) “Do the ‘Haves’ Come Out Ahead over Time? Applying Galanter's Framework to Decisions of the U.S. Courts of Appeals, 1925–1988,” 33 Law & Society Rev. 811–32.CrossRefGoogle Scholar
Spriggs, James F., II, & Wahlbeck, Paul J. (1997) “Amicus Curiae and the Role of Information at the Supreme Court,” 50 Political Research Quart., June, 365–86.CrossRefGoogle Scholar
Tanenhaus, Joseph, Schick, Marvin, Muraskin, Matthew & Rosen, Daniel (1963) “The Supreme Court's Certiorari Jurisdiction: Cue Theory,” in G. Schubert, ed., Judicial Decision Making. New York: Free Press.Google Scholar
Wanner, Craig (1974) “The Public Ordering of Private Relations: Part One: Initiating Civil Cases in Urban Trial Courts,” 8 Law & Society Rev. 421–40.CrossRefGoogle Scholar
Wheeler, Stanton, Cartwright, Bliss, Kagan, Robert A. & Friedman, Lawrence M. (1987) “Do the ‘Haves’ Come Out Ahead? Winning and Losing in State Supreme Courts, 1870–1970,” 21 Law & Society Rev. 403–45.CrossRefGoogle Scholar