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Hastings Law Journal

Abstract

This Article tests Galanter’s party capability theory in China’s grassroots courts by empirically examining 858 sampled judgments of rural land dispute lawsuits between married- out women (the “have-nots,” or the less resourceful party) and village collectives (the “haves,” or the more resourceful party) throughout China from 2009 to 2017. An analysis of this study’s results yields a groundbreaking discovery, the “have-nots” came out ahead in China’s courts by a substantial margin. This finding contradicts Galanter’s theory—under which the “haves” should prevail—and the established view that the “haves” should come out ahead in China (a leading study on Shanghai courts found the “haves” prevailing by large margins). This discovery is significant because the Chinese judicial system, like its counterparts in other authoritarian states, is commonly seen as a system that favors the “haves” in a disproportionate manner due to the lack of judicial independence, which enhances the likelihood of courts being swayed by powerful external influence in favor of the stronger party. This Article argues that Galanter’s theory is inapplicable, as the data shows, when courts favor the “have-nots” over the “haves.” It is believed that the courts’ favor for the “have-nots” neutralized the party-capability advantages enjoyed by the “haves” and propelled the “have-nots” to victory. †

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