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Judicial Fact Discretion

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Author Info
Nicola Gennaioli
Andrei Shleifer

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Abstract

Following legal realists, we model the causes and consequences of trial judges exercising discretion in finding facts in a trial. We identify two motivations for the exercise of such discretion: judicial policy preferences and judges' aversion to reversal on appeal when the law is unsettled. In the latter case, judges exercising fact discretion find the facts that fit the settled precedents, even when they have no policy preferences. In a standard model of a tort, judicial fact discretion leads to setting of damages unpredictable from true facts of the case but predictable from knowledge of judicial preferences, distorts the number and severity of accidents, and generates welfare losses. It also encourages litigants to take extreme positions in court and raises the incidence of litigation relative to settlement, especially in new and complex disputes for which the law is unsettled. (c) 2008 by The University of Chicago. All rights reserved..

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File URL: http://www.journals.uchicago.edu/doi/pdf/10.1086/588266
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Publisher Info
Article provided by University of Chicago Press in its journal The Journal of Legal Studies.

Volume (Year): 37 (2008)
Issue (Month): 1 (01)
Pages: 1-35
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Handle: RePEc:ucp:jlstud:v:37:y:2008:i:1:p:1-35

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References listed on IDEAS
Please report citation or reference errors to , or , if you are the registered author of the cited work, log in to your RePEc Author Service profile, click on "citations" and make appropriate adjustments.:
  1. Viscusi, W. Kip, 1988. "Pain and suffering in product liability cases: Systematic compensation or capricious awards?," International Review of Law and Economics, Elsevier, vol. 8(2), pages 203-220, December. [Downloadable!] (restricted)
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  3. Landes, William M, 1971. "An Economic Analysis of the Courts," Journal of Law & Economics, University of Chicago Press, vol. 14(1), pages 61-107, April.
  4. Sendhil Mullainathan & Andrei Shleifer, 2005. "The Market for News," American Economic Review, American Economic Association, vol. 95(4), pages 1031-1053, September. [Downloadable!]
  5. Lucian Arye Bebchuk, 1984. "Litigation and Settlement under Imperfect Information," RAND Journal of Economics, The RAND Corporation, vol. 15(3), pages 404-415, Autumn. [Downloadable!] (restricted)
  6. Kaplow, Louis, 1994. "The Value of Accuracy in Adjudication: An Economic Analysis," Journal of Legal Studies, University of Chicago Press, vol. 23(1), pages 307-401, January.
  7. Steven Shavell, 2003. "Economic Analysis of Accident Law," NBER Working Papers 9694, National Bureau of Economic Research, Inc. [Downloadable!] (restricted)
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  8. Muhamet Yildiz, 2004. "Waiting to Persuade," The Quarterly Journal of Economics, MIT Press, vol. 119(1), pages 223-248, February. [Downloadable!] (restricted)
  9. Nicola Gennaioli & Andrei Shleifer, 2007. "The Evolution of Common Law," Journal of Political Economy, University of Chicago Press, vol. 115, pages 43-68. [Downloadable!] (restricted)
  10. Louis Kaplow & Steven Shavell, 1994. "Accuracy in the Determination of Liability," NBER Working Papers 4203, National Bureau of Economic Research, Inc. [Downloadable!] (restricted)
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  11. Edward L. Glaeser & Andrei Shleifer, 2003. "The Rise of the Regulatory State," Journal of Economic Literature, American Economic Association, vol. 41(2), pages 401-425, June.
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  12. Craswell, Richard & Calfee, John E, 1986. "Deterrence and Uncertain Legal Standards," Journal of Law, Economics and Organization, Oxford University Press, vol. 2(2), pages 279-303, Fall.
  13. Edward L. Glaeser & Andrei Shleifer, 2002. "Legal Origins," The Quarterly Journal of Economics, MIT Press, vol. 117(4), pages 1193-1229, November. [Downloadable!] (restricted)
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Cited by:
(explanations, Please report citation or reference errors to , or , if you are the registered author of the cited work, log in to your RePEc Author Service profile, click on "citations" and make appropriate adjustments.)

  1. Guerriero, C., 2009. "Democracy, Judicial Attitudes and Heterogeneity: The Civil Versus Common Law Tradition," Cambridge Working Papers in Economics 0917, Faculty of Economics, University of Cambridge. [Downloadable!]
  2. Joshua Schwartzstein & Andrei Shleifer, 2009. "Litigation and Regulation," NBER Working Papers 14752, National Bureau of Economic Research, Inc. [Downloadable!] (restricted)
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