Leveling the Playing Field? Litigant Success Rates in Health-Care Policy Cases in the U.S. Courts of Appeals
Justice System Journal › Vol. 30 Nbr. 3, September 2009
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Summary
Though previous research on party capability demonstrates that the "haves" win more often in litigation than the "have-nots," this conclusion contradicts the conventional wisdom among the general populace that views the judiciary as the institution most likely to protect individual rights. This raises the question whether an area of the law exists where the courts tend to favor the have-nots over the haves. Using data from the Courts of Appeals Database, our results demonstrate that health-care policy cases present an opportunity for the have-nots to offset advantages typically possessed by the haves, thereby increasing their chances to prevail in litigation. Whether one examines average success rates for appellants, the "net advantage" for litigants, or a more sophisticated statistical model, the data indicate that individuals (i.e., the have-nots) typically enjoy larger success rates than either state and local government or the federal government.
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Extract
Leveling the Playing Field? Litigant Success Rates in Health-Care Policy Cases in the U.S. Courts of Appeals
As Songer and Sheehan (1992) note, "who gets what?" is a question that is central to the study of politics. Beginning with the seminal article by Galanter (1974), the overwhelming answer to this question has been that the "haves" win more often in litigation than the "have-nots." Yet this conclusion contradicts the conventional wisdom among the general populace that views the judiciary as the institution most likely to protect individual rights. This raises the question whether an area of the law exists where the courts tend to favor the "have-nots" over the "haves." We suggest that issues over health-care policy may present cases where judges must evaluate "life - or- death" situations, which, consequently, influence them to be more disposed to the protection of the have-nots. Therefore, our article examines litigant success rates in health-care policy cases before the U.S. Courts of A...
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