The ‘haves’ and the ‘have nots’: An empirical study of the rational actor and party capability hypotheses in the High Court 1948-99

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Abstract

The High Court has always played an important political and social role. However, recent debate over implied rights in the Constitution has brought judicial power into focus, making it an important topic for assessment. One framework that has been used to test judicial power in Canadian, English and United States appeal courts is the notion of party capability theory. This paper analyses reported and unreported decisions of the High Court since 1948 in light of party capability theory. It attempts to identify what impact (if any) both the experience and resources of the litigants has had on which parties win and lose on appeal over an extended period. The main conclusion is that there is little evidence to support the thesis that stronger parties persistently come out ahead.

Original languageEnglish
Pages (from-to)255-274
Number of pages20
JournalAustralian Journal of Political Science
Volume35
Issue number2
DOIs
Publication statusPublished - 1 Jan 2000

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