Party Capability Theory and Appellate Success in the

Supreme Court of Canada, 1949-1992

PETER McCORMICK

報告人：黃適文

120100324

Rousseau said…

2

Party capability theory

• The tall team usually win the basketball game

• Repeat player vs. one-shotter

• The judges are not drawn from a statistically random group

3

The goal of this paper

• Can we apply party capability theory to Canadian circumstance.

• Or, is the rational actor hypothesis exist?

• Compare the results with the results of US and British juridical system.

4

Data

• 3993 reported decisions of the Supreme Court between 1949, and 1992.

• Treating a 43-year range of cases as a single block.

• Counting each case as one.

5

Analysis

• The advantage of respondent : 60:40

• Classify petitioners into eight categories.

• Divide government into: Crown, Federal government, Provincial government, Municipal government

6

Analysis

• Divide business into : Big business, Other business

• Include union

7

Analysis

8

Net advantage

• Independent of the relative frequency with each type of litigant appears as appellant or respondent.

• Reduce the effect of intra-category litigation.

9

Impact of advantage on success rates

10

Index by advantage score

• Give each 5 per cent of advantage a score 1

• Ex: crown +5, individuals -2 …

• The score vary from +7(crown vs. individuals) to -7(individuals vs. crown)

11

Score and success rate

12

Regression model

The fit of the model is 0.7971

13

Revision of respondent advantage

• There are more appeals by appellants who are disadvantaged relative to their respondents

• Average Supreme court appellant has an advantage differential of -1.2 relative to the respondent

• The respondent advantage should be revise to 55:45

14

Compare with the system in the US

15

Compare with the British system

16

Conclusion

• The behavior of the Supreme Court of Canada support party capability theory

17