The Rule of Law and the Litigation Process
The Paradox of Losing by Winning
Bibliographic Data
| ID | 4085154 |
|---|---|
| Authors | Catherine R Albiston (0000-0003-1306-2326, corresponding author), Catherine Albiston |
| Year | 1999 |
| Volume | 33 |
| Issue | 4 |
| Pages | 869-910 |
| Publication date | 1999-01-01 |
| Peer Reviewed | Yes |
| Open Access | Yes |
| Type | ARTICLE |
| Venue | Law & Society Review (JOURNAL) |
| Journal identifiers | ISSN: 0023-9216 • E-ISSN: 1540-5893 |
| Publisher | Cambridge University Press (CUP) (PUBLISHER) |
| DOI | 10.2307/3115153 |
| OpenAlex | W3121302341 |
| Language | EN |
| Citations received | 47 |
| References cited | 53 |
This article expands upon the idea that repeat players influence the development of law by settling cases they are likely to lose and litigating cases they are likely to win. Through empirical analysis of judicial opinions interpreting the Family and Medical Leave Act, it shows how the rule-making opportunities in the litigation process affect the development of law and the judicial determination of statutory rights. In addition, the article explains how early judicial opinions might influence later judicial interpretations of the law. Although individuals may successfully mobilize the law to gain benefits in their disputes, that success often removes their experiences from the judicial determination of rights, limiting law's capacity to produce social change. This paradox of losing by winning separates the dispute resolution function of courts from their lawmaking function and raises questions about the legitimacy of law
Common law · Due process · Economics · Law and economics · Political science · Process (computing · Rule of law · Sources of law · Computer Science · Judicial and Constitutional Studies · Law · Law, Economics, and Judicial Systems · Legal principles and applications
European Human Rights Justice and Privatisation
Law
Law as an Instrument of Social Change
Discrimination and the Law
Rechtsmobilisierung. Ein Systematisierungsversuch
Transitional Justice and Corporate Accountability from Below
Who Are You and What’s Your Issue? Winning in Collective Litigation in Colombia
Employment Discrimination Lawsuits and Corporate Stock Prices
Testing Representational Advantage in the Argentine Supreme Court
Judicial Review of Executive Power in the Singaporean Context, 1965–2012
The role of legal intermediaries in the dispute pyramid
Gender Inequalities in Markets
Divergent Paths
Half Empty, Half Full, or Neither
Corporate Complicity in International Human Rights Violations
Tool for Surveillance or Spotlight on Inequality? Big Data and the Law
Legal Discrimination
The Dispute Tree and the Legal Forest
The construction of workers’ rights consciousness through legal intermediations
Performing Artivism
Institutional and Political Sources of Legislative Change
Litigation Dilemmas
Law Enforcement as Legal Mobilization
When “Best Practices” Win, Employees Lose
Learning to Dispute
Inside the Pyramid of Disputes
The Intuitive Psychologist Behind the Bench
Interest Groups in the Israeli High Court of Justice
Settling for Less? Organizational Determinants of Discrimination-Charge Outcomes
Institutions Are Not Rules
The Privatization of Public Legal Rights
The Good Case
Using court documents as data
Multiple Disadvantages
"The Mechanisms behind Litigation's "Radiating Effects
A Classic at 25
Family Gatherings and a Dirty Little Secret of the Law and Society Association
How Dispute Resolution System Design Matters
The Two Motifs of "Why the 'Haves' Come Out Ahead" and Its Heirs
Enforcement agencies and an emerging category of law
Do the "Haves" Still Come Out Ahead? Resource Inequalities in Ideological Courts
Rivers of Law and Contested Terrain
Repeat Players, the Law, and Social Change
When Organizations Rule
The Strength of a Weak Agency
The paradox of victory
Habit and creativity in judges' definition and framing of legal questions
Law in modern society
Rights at work
On Law in Economy and Society
Non-Contractual Relations in Business
Order without Law
Courts
Law in Everyday Life
Bargaining in the Shadow of the Law
Against Settlement
The Role of the Judge in Public Law Litigation
The Selection of Disputes for Litigation
Why People Obey the Law
The alchemy of race and rights
The Legal System
Trying to Make Law Matter
The Hollow Hope
The politics of rights
The Influence of Stare Decisis on the Votes of United States Supreme Court Justices
Who Wins on Appeal? Upperdogs and Underdogs in the United States Courts of Appeals
The Hierarchy of Justice
The Mobilization of Law
Non-Contractual Relations in Business
The Emergence and Transformation of Disputes
Studying the Iceberg from its Tip
Grievances, Claims, and Disputes
The Public Ordering of Private Relations Part Two
Making Law at The Doorway
On the Meaning and Pattern of Legal Citations
Rights, Remembrance, and the Reconciliation of Difference
Equal Employment Opportunity and the Mobilization of Law
Why the "Haves" Come Out Ahead
Participation and Flexibility in Informal Processes
Afterword
Internal Dispute Resolution
Do The "Haves" Come Out Ahead? Winning and Losing in State Supreme Courts, 1870-1970
Legal Mobilization
Legal Mobilization as a Social Movement Tactic
Civil Rights Law at Work
| Unique citing works | 47 |
|---|---|
| Citations per year | 1,74 |
| Citation span | 1999 - 2025 (27) |
| Citation velocity | recent |
| Highly cited | No |
| Citation types | Neutral: 47 |