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

Abstract

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 amici 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.