Party Capability versus Court Preference: Why Do the "Haves" Come Out Ahead?--An Empirical Lesson from the Taiwan Supreme Court

Abstract

Using civil appeals data on Taiwan's Supreme Court (TSC), this article revisits the well-known question of whether the "haves" come out ahead in litigations. We first show that the higher-status litigants indeed mobilized stronger legal representation and obtained more victories than the lower-status litigants. However, we submit that that the party capability theory cannot fully explain the advantages the "haves" enjoyed over the "have-nots." Further analysis reveals that the TSC's exercise of discretionary jurisdiction also played an important role by strongly favoring the governmental litigants at the agenda-setting stage. We argue that the TSC's preference in this regard was induced by the TSC judges' self-identification as part of government. In conclusion, our empirical investigation shows that both party capability and court preference contribute to influence the outcomes of appeals. (JEL K4)

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“…The former two can determine both questions of fact and questions of law, while the supreme court only deals with questions of law. Appealing to the appellate court is as of right, whereas large-stake cases represented by attorneys can be appealed to the supreme court, subject to its discretion (Eisenberg & Huang 2012;Chen et al 2015).…”