Haves and Have-Nots before the Law Lords
| DOI | 10.1111/1467-9248.12041 |
| Published date | 01 October 2014 |
| Date | 01 October 2014 |
| Author | Chris Hanretty |
| Subject Matter | Article |
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P O L I T I C A L S T U D I E S : 2 0 1 4 VO L 6 2 , 6 8 6 – 6 9 7
doi: 10.1111/1467-9248.12041
RESEARCH NOTE
Haves and Have-Nots before the Law Lords
Chris Hanretty
University of East Anglia
One important characteristic of justice, and thus of our judicial system, is impartiality. One type of judicial impartiality
is impartiality between litigants who command status and material resources (‘haves’) and those who do not
(‘have-nots’). I investigate the success of ‘haves’ in appeals to the House of Lords between 1969 and 2003. I investigate
two separate paths by which ‘haves’ might succeed more: relative status advantage over other litigants, and being able
to hire more experienced and more successful counsel. My innovative operationalisation of relative status advantage
shows that while relative status advantage does exist, it is largely a matter of governmental actors having significant
advantages over all others; businesses and associations have no advantages over individual litigants. Instructing more
experienced counsel also increases the chances of a litigant succeeding. This effect holds when accounting for the
relative number of counsel and their relative win rates in previous cases.
Keywords: judicial behaviour; House of Lords; status advantage; British judiciary
‘Who gets what’ from court decisions is an important and political question, especially when
those decisions are delivered by ‘apex’ courts such as the Appellate Committee of the House
of Lords.1 Because these decisions are political (in the sense of authoritatively allocating
values: Hodder-Williams, 1992), it is unsurprising that many scholars of the politics of the
law should have hypothesised that the outcomes of legal disputes will be strongly affected by
the possession of certain resources, including status and expertise. J. A. G. Griffith (1977)
famously argued that the English legal system favours the interests of those with property and
more generally those whose views accord with the views of the Conservative Party. In the
US, Marc Galanter (1974) argues that the law systematically favours ‘haves’ over ‘have-nots’,
and that a number of frequent litigants – repeat players, as he calls them – possess mutually
reinforcing resources of status, expertise, credibility and reputation.
These claims are amenable to statistical analysis. In the United States, scholars generally
agree (compare Sheehan et al., 1992) that parties with greater resources come out ahead,
but disagree about the conditions – judicial ideology (Black and Boyd, 2012), amicus curiae
(Songer et al., 2000) and case salience (McAtee and McGuire, 2007) – that exacerbate or
mitigate this. Scholars outside the US have greater reservations, finding extremely limited
effects (Dotan, 1999), extremely strong effects (McCormick, 1993) and even reverse effects,
where have-nots come out ahead (Haynie, 1994).
Unfortunately, the quantitative study of the politics of the law has largely ignored the
different British (English, Scottish, Northern Irish) legal systems (but see Hanretty, 2012).
‘Scholars of English politics usually assume that courts do not participate in the process by
which resources and values are allocated by the political system’ (Atkins, 1991, p. 882). Since
judging partly on the basis of political preferences is one mechanism by which relative status
advantage might occur, English courts should be relatively free of a great advantage for
haves over have-nots. Only Burton Atkins has attempted to model the success of appellants
© 2013 The Author. Political Studies © 2013 Political Studies Association
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in English courts, and his linear discriminant analysis of appellate success in the Court of
Appeal between 1983 and 1985 includes a number of other variables unrelated to status
(panel size, judge status, case source, area of law and strength of claim), the statistical
significance of which cannot be assessed separately.
This research note attempts to remedy this gap in the literature by testing, using data
drawn from the Appellate Committee of the House of Lords between 1969 and 2003,
several hypotheses related to resource advantage, paying particular attention to the effects of
litigant status. I make two contributions. The first is methodological: I employ a new way
of modelling claims about relative status disadvantage in order to unpack the presumed rank
order of litigant status.The second is empirical: I demonstrate that while ‘haves’ do come out
ahead, this is only where they are governmental actors, or where they retain more
experienced counsel; businesses or associations do not, per se, enjoy an advantage over
individual litigants.
Theory
Galanter’s 1974 article,‘Why the Haves Come Out Ahead’, argued that litigants and counsel
can be divided into ‘one-shotters’ and ‘repeat-players’; that the latter possess certain
resources – experience, credibility, phronesis – making them more likely to succeed in legal
disputes; and that they often possess additional material or status resources which mark them
out as ‘haves’ rather than ‘have-nots’, compounding their advantage. There is considerable
and understandable overlap between ‘haves’ and repeat players. High-status actors, because
they are often larger organisations, or have more extended interests, are more likely to be
involved in multiple disputes. Conversely, repeat players accumulate certain resources which
might mark them out as having high status.The entanglement between these two catego-
ries, ‘haves’ and repeat players, is problematic: Richard Lempert (1999, p. 1103) argues that
we ‘cannot be sure ... there is even an ... effect because we are missing the crucial
comparison between powerful parties who are repeat players and those who are not’.
Indeed, the entanglement is near perfect in the Lords, where there are extremely few
non-governmental repeat players.2
Consequently, my discussion of litigants focuses on the relative status of litigants, to a
large extent combining the advantages enjoyed by repeat players against one-shotters and
the advantages of ‘haves’ against ‘have-nots’.3 My discussion of counsel, conversely, focuses
on the benefits of greater experience, and thus is more germane to arguments about repeat
players.
Litigants
The paradigmatic example of the high-status repeat litigant is central government, which
has extensive and considerable interests and continuously litigates before courts in both
criminal and public law cases. Much work has gone into studying the nature of the
advantage enjoyed by the office of the Solicitor General in the United States – including
deflationary accounts which suggest the advantage is entirely due to the experience
accumulated by government lawyers (McGuire, 1998).Yet even without a repeat player or
‘governmental’ advantage,‘haves’ would still enjoy advantages because the rules of the game
‘tend to favor older, culturally dominant interests’ (Galanter, 1974, p. 123). We would
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C H R I S H A N R E T T Y
therefore expect high-status litigants such as corporations to enjoy an advantage even
without previous litigation experience.
The ‘rules of the game’ in Britain certainly favour government actors, the highest-status
litigants in most empirical work. Government ministers long enjoyed a considerable
advantage in public law cases, in so far as their actions had to be ‘so outrageous in [their]
defiance of logic or accepted moral standards that no sensible person ... could have arrived
at [them]’ if they were to be quashed.4 Although this ‘Wednesbury test’ has been deprecated,
considerable obstacles still face those arguing against central and local government.
What is less clear is whether the rules of the game also favour the next category of
high-status litigant, namely businesses. There have been notable cases where corporate
interests have trumped individual litigants by marshalling massively disproportionate
resources. In the ‘McLibel’ case, McDonalds initially won its libel case against Helen Steel
and David Morris, publishers of a pamphlet accusing McDonalds of economic imperialism,
mass pollution and exploitation, but this decision was overturned by the European Court
of Human Rights (ECHR), which found that ‘the denial of legal aid to [Steel and Morris]
deprived them of the opportunity to present their case effectively before the court and
contributed to an unacceptable inequality of arms with McDonald’s’.5 Given that Steel and
Morris represented themselves in the original case, but retained counsel in their ECHR
appeal, this might suggest that the advantage enjoyed by corporate interests is purely related
to their greater ability to instruct experienced counsel – but this is something that must be
tested.
I therefore hypothesise that (H1) for a given rank ordering of categories of litigants in
terms of status, higher-status litigants will be more likely to succeed in appeals than
lower-status litigants. I specify the rank ordering of litigant categories in the section on data
and modelling strategy.
Counsel
One important mechanism through which higher-status litigants procure an advantage in
...
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