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Suit and Settlement vs. Trial: A Theoretical Analysis under Alternative Methods for the Allocation of Legal Costs

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  • Steven Shavell

Abstract

Will a party who believes that he has a legally admissible claim for money damages decide to bring suit? if so, will he subsequently settle with the opposing party or will he go ahead to trial? These questions are analyzed under four methods for allocating legal costs, namely, under the American system, whereby each side bears its own costs; under the "indemnity" or British system, whereby the losing side bears all costs; under the system favoring the plaintiff whereby the plaintiff pays only his own costs if he loses and nothing otherwise; and under the system favor the defendant, whereby the defendant pays only his own costs if he loses and nothing otherwise. Following the analysis, two brief illustrations are considered and comments are made on the relative social desirability of the methods of allocating legal costs.

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Bibliographic Info

Paper provided by National Bureau of Economic Research, Inc in its series NBER Working Papers with number 0662.

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Date of creation: Apr 1981
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Handle: RePEc:nbr:nberwo:0662

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Cited by:
  1. Andrew F. Daughety & Jennifer F. Reinganum, 1995. "Keeping Society in the Dark: On the Admissibility of Pretrial Negotiations as Evidence in Court," RAND Journal of Economics, The RAND Corporation, vol. 26(2), pages 203-221, Summer.
  2. Shavell, Steven, 1993. "Suit versus Settlement when Parties Seek Nonmonetary Judgments," The Journal of Legal Studies, University of Chicago Press, vol. 22(1), pages 1-13, January.
  3. 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.
  4. Andrew F. Daughety & Jennifer F. Reinganum, 1994. "Settlement Negotiations with Two-Sided Asymmetric Information: Model Duality, Information Distribution and Efficiency," Game Theory and Information 9403009, EconWPA.
  5. Daniela Marchesi, 2007. "The Rule Incentives that Rule Civil Justice," ISAE Working Papers 85, ISTAT - Italian National Institute of Statistics - (Rome, ITALY).
  6. Kamphorst, Jurjen J.A. & Van Velthoven, Ben C.J., 2006. "The introduction of an appeals court in Dutch tax litigation," MPRA Paper 2008, University Library of Munich, Germany, revised 27 Apr 2006.
  7. Jean O Lanjouw & Josh Lerner, 2004. "The Enforcement of Intellectual Property Rights: A Survey of the Literature," Levine's Working Paper Archive 122247000000000486, David K. Levine.
  8. Jean O. Lanjouw & Josh Lerner, 1997. "The Enforcement of Intellectual Property Rights: A Survey of the Empirical Literature," NBER Working Papers 6296, National Bureau of Economic Research, Inc.

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