Should Plaintiffs Win What Defendants Lose? Litigation Stakes, Litigation Effort, and the Benefits of Decoupling
AbstractIn a 1991 paper, Polinsky and Che argue that lowering plaintiffs’ recovery and raising defendants’ damages can deliver the same level of deterrence with fewer filed suits. A subsequent paper by Kahan and Tuckman provisionally corroborates Polinsky and Che’s analysis in an extended model that accounts for the effect of litigation states on litigation effort levels. In contrast, we show that when litigation effort is endogenous, Polinsky and Che’s proposal to lower recovery and raise damages may no longer improve social welfare. We then characterize the kinds of suits where it is in fact suboptimal to set recovery below damages. Of significance for the current policy debate, we find that such suits share many of the empirical premises about litigation that ground conventional arguments in favor of making recovery less than damages. Our findings are robust to the possibility of out-of-court settlement, plaintiffs’ employment of contingent-fee lawyers, and alternative fee-shifting rules.
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Bibliographic InfoArticle provided by University of Chicago Press in its journal The Journal of Legal Studies.
Volume (Year): 33 (2004)
Issue (Month): 2 (06)
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- Albert Choi & Chris Sanchirico, . "Should Plaintiffs Win What Defendants Lose?: Litigation Stakes, Litigation Effort, and the Benefits of 'Decoupling'," Scholarship at Penn Law upenn_wps-1000, University of Pennsylvania Law School.
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- Maxim Nikitin & Claudia M. Landeo, 2004. "Split-Award Tort Reform, Firm's Level of Care and Litigation Outcomes," Econometric Society 2004 Latin American Meetings 4, Econometric Society.
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- Aaron Finkle, 2010. "Contracts in the Shadow of the Law: Optimal Litigation Strategies within Organizations," International Journal of Business and Economics, College of Business, and College of Finance, Feng Chia University, Taichung, Taiwan, vol. 9(2), pages 131-155, August.
- Chu, C.Y. Cyrus & Chien, Hung-Ken, 2007. "Asymmetric information, pretrial negotiation and optimal decoupling," International Review of Law and Economics, Elsevier, vol. 27(3), pages 312-329, September.
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- Philip Bond, 2004. "Optimal plaintiff incentives when courts are imperfect," 2004 Meeting Papers 723, Society for Economic Dynamics.
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