Explaining Litigant Success in the High Court of Australia

Abstract

The authors examine the influence of party capability theory while controlling for legal-structural and doctrinal changes in the High Court. Based on their analysis of cases from 1970 to 2003, several notable conclusions emerge. The most interesting determinant of litigant success in Australia involves a shift within the High Court from a mechanical form of jurisprudence to a doctrine of implied rights. Once the High Court announced Mabo, ‘one-shot’ litigants gained a significant advantage and were more likely to win. Additionally, the change to a doctrine of implied rights provided barristers with new opportunities to craft novel legal arguments. Consequently, their influence over decision outcomes increased. As barristers gained more experience and more successes, the likelihood of their clients winning increased substantially.

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