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Pretrial Bargaining and the Design of Fee-Shifting Rules

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  • Kathryn E. Spier
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    Abstract

    Legal rules for allocating the private costs of civil litigation, or "fee-shifting" rules, provide powerful incentives for settlement. Within the context of a direct-revelation mechanism, the fee-shifting rule that generates the highest probability of settlement bases the allocation of costs upon the proximity of the court's award to the pretrial announcements. This mechanism resembles Rule 68 of the Federal Rules of Civil Procedure and other offer-based rules. In a simple extensive-form game, if the litigants have asymmetric information about the level of damages (probability of prevailing), then Rule 68 increases (decreases) the settlement rate.

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    Bibliographic Info

    Article provided by The RAND Corporation in its journal RAND Journal of Economics.

    Volume (Year): 25 (1994)
    Issue (Month): 2 (Summer)
    Pages: 197-214

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    Handle: RePEc:rje:randje:v:25:y:1994:i:summer:p:197-214

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    Web page: http://www.rje.org

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    Web: https://editorialexpress.com/cgi-bin/rje_online.cgi

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    Cited by:
    1. Michael R. Baye & Dan Kovenock & Casper G. Vries, 2005. "Comparative Analysis of Litigation Systems: An Auction-Theoretic Approach," Economic Journal, Royal Economic Society, vol. 115(505), pages 583-601, 07.
    2. Michael R. Baye & Dan Kovenock & Casper G. de Vries, 2000. "Comparative Analysis of Litigation Systems: An Auction-Theoretic Approach," Tinbergen Institute Discussion Papers 00-103/2, Tinbergen Institute.
    3. Bester, Helmut & Wärneryd, Karl, 2006. "Conflict and the Social Contract," Discussion Paper Series of SFB/TR 15 Governance and the Efficiency of Economic Systems 94, Free University of Berlin, Humboldt University of Berlin, University of Bonn, University of Mannheim, University of Munich.
    4. Lucian Arye Bebchuk & Howard F. Chang, 2000. "The Effect of Offer-of-Settlement Rules on the Terms of Settlement," NBER Working Papers 6509, National Bureau of Economic Research, Inc.
    5. Jean O. Lanjouw & Josh Lerner, 1996. "Preliminary Injunctive Relief: Theory and Evidence from Patent Litigation," NBER Working Papers 5689, National Bureau of Economic Research, Inc.
    6. Jean O. Lanjouw & Mark Schankerman, 1997. "Stylized Facts of Patent Litigation: Value, Scope and Ownership," NBER Working Papers 6297, National Bureau of Economic Research, Inc.
    7. Neeman, Zvika & Pavlov, Gregory, 2013. "Ex post renegotiation-proof mechanism design," Journal of Economic Theory, Elsevier, vol. 148(2), pages 473-501.
    8. Jean Olson Lanjouw & Mark Schankerman, 1998. "Stylised Fact of Patent Litigation: Value, Scope and Ownership," STICERD - Economics of Industry Papers 20, Suntory and Toyota International Centres for Economics and Related Disciplines, LSE.

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