The Rule of Law and the Litigation Process: the Paradox of Losing by Winning

Law & Society Review, Vol. 33, p. 869, 1999

43 Pages Posted: 14 Nov 2010

See all articles by Catherine Albiston

Catherine Albiston

University of California, Berkeley - School of Law; University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law

Date Written: January 1, 1999

Abstract

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 law-making function and raises questions about the legitimacy of law.

Keywords: repeat player, civil procedure, development of precedent

Suggested Citation

Albiston, Catherine, The Rule of Law and the Litigation Process: the Paradox of Losing by Winning (January 1, 1999). Law & Society Review, Vol. 33, p. 869, 1999. Available at SSRN: https://ssrn.com/abstract=1083871

Catherine Albiston (Contact Author)

University of California, Berkeley - School of Law ( email )

215 Boalt Hall
Berkeley, CA 94720-7200
United States

University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law

Boalt Hall
Berkeley, CA 94720-7200
United States

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