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Shifting Plaintiffs' Fees versus Increasing Damage Awards

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Louis Kaplow

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Abstract

Shifting successful plaintiffs' fees to defendants and increasing damage awards are alternative ways to achieve similar results: increasing plaintiffs' incentives to sue and raising defendants' expected payments. This paper shows that relying on higher damage awards is more efficient than shifting plaintiffs' fees. The reason is that fee-shifting is, perversely, more valuable for plaintiffs with higher litigation costs. Thus, it is possible to substitute higher damage awards for fee-shifting in a manner that leaves deterrence unaffected while eliminating the suits of plaintiffs with the highest litigation costs.

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Paper provided by National Bureau of Economic Research, Inc in its series NBER Working Papers with number 4263.

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Date of creation: Feb 1994
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Handle: RePEc:nbr:nberwo:4263

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Find related papers by JEL classification:
K41 - Law and Economics - - Legal Procedure, the Legal System, and Illegal Behavior - - - Litigation Process

References listed on IDEAS
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  1. Katz, Avery, 1987. "Measuring the Demand for Litigation: Is the English Rule Really Cheaper?," Journal of Law, Economics and Organization, Oxford University Press, vol. 3(2), pages 143-76, Fall.
  2. Gary S. Becker, 1968. "Crime and Punishment: An Economic Approach," Journal of Political Economy, University of Chicago Press, vol. 76, pages 169. [Downloadable!] (restricted)
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  3. A. Mitchell Polinsky & Yeon-Koo Che, 1991. "Decoupling Liability: Optimal Incentives for Care and Litigation," RAND Journal of Economics, The RAND Corporation, vol. 22(4), pages 562-570, Winter. [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. 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. [Downloadable!] (restricted)
  2. 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. [Downloadable!]
  3. Langlais, Eric, 2005. "Indemnisation des préjudices et fréquence des procès en présence d'une asymétrie d'informaion sur l'aversion au risque des parties
    [Compensation of damages and frequency of trials with asymmet    ," MPRA Paper 1150, University Library of Munich, Germany, revised 06 Nov 2006. [Downloadable!]
    Other versions:
  4. Kathryn Zeiler, . "Medical Malpractice and Contract Disclosure: An Equilibrium Model of the Effects of Legal Rules on Behavior in Health Care Markets," American Law & Economics Association Annual Meetings 1071, American Law & Economics Association. [Downloadable!]
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