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A New Theory Concerning the Credibility and Success of Threats to Sue

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  • Bebchuk, Lucian Arye

Abstract

Negative-expected-value (NEV) suits are ones in which the expected litigation costs exceed the expected judgment. This article offers a new theory for the credibility and success of plaintiffs with NEV suits. The theory is based on recognizing that litigation costs are generally not incurred all at once but rather over time; this divisibility of the litigation process is shown to play a crucial strategic role. The analysis identifies the conditions under which a plaintiff with an NEV suit will have a credible threat and succeed in extracting a settlement. It is demonstrated that plaintiffs have credible threats in a much wider set of cases--including in numerous small-stakes cases--than has been suggested by prior economic analysis of the subject. Copyright 1996 by the University of Chicago.

Suggested Citation

  • Bebchuk, Lucian Arye, 1996. "A New Theory Concerning the Credibility and Success of Threats to Sue," The Journal of Legal Studies, University of Chicago Press, vol. 25(1), pages 1-25, January.
  • Handle: RePEc:ucp:jlstud:v:25:y:1996:i:1:p:1-25
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    File URL: http://dx.doi.org/10.1086/467969
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    Citations

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    Cited by:

    1. Lucian Arye Bebchuk, 1998. "Negative Expected Value Suits," NBER Working Papers 6474, National Bureau of Economic Research, Inc.
    2. Giuseppe Dari-Mattiacci & Bruno Deffains, 2007. "Uncertainty of Law and the Legal Process," Journal of Institutional and Theoretical Economics (JITE), Mohr Siebeck, Tübingen, vol. 163(4), pages 627-656, December.
    3. Yves Oytana, 2014. "The Judicial Expert in a Two-Tier Hierarchy," Journal of Institutional and Theoretical Economics (JITE), Mohr Siebeck, Tübingen, vol. 170(3), pages 537-570, September.
    4. Bar-Gill Oren, 2005. "Pricing Legal Options: A Behavioral Perspective," Review of Law & Economics, De Gruyter, vol. 1(2), pages 204-240, September.
    5. Jeong-Yoo Kim, 2010. "Credible plea bargaining," European Journal of Law and Economics, Springer, vol. 29(3), pages 279-293, June.
    6. Uri Weiss, 2015. "The Robber Wants To Be Punished," Discussion Paper Series dp685, The Federmann Center for the Study of Rationality, the Hebrew University, Jerusalem.
    7. Mnookin, Robert & Wilson, Robert, 1998. "A Model of Efficient Discovery," Games and Economic Behavior, Elsevier, vol. 25(2), pages 219-250, November.
    8. Farmer Amy & Pecorino Paul, 2014. "Litigation with Default Judgments," Review of Law & Economics, De Gruyter, vol. 10(2), pages 1-20, July.
    9. Guha, Brishti, 2016. "Malicious Litigation," MPRA Paper 69544, University Library of Munich, Germany.
    10. Oren Bar-Gill & Omri Ben-Shahar, 2004. "The Law of Duress and the Economics of Credible Threats," The Journal of Legal Studies, University of Chicago Press, vol. 33(2), pages 391-430, June.
    11. Farmer, Amy & Pecorino, Paul, 1998. "A reputation for being a nuisance: frivolous lawsuits and fee shifting in a repeated play game," International Review of Law and Economics, Elsevier, vol. 18(2), pages 147-157, June.
    12. Kirstein, Roland & Rickman, Neil, 2001. "FORIS contracts: Litigation Cost Shifting and Contingent Fees in Germany," CSLE Discussion Paper Series 2001-04, Saarland University, CSLE - Center for the Study of Law and Economics.
    13. Guha, Brishti, 2016. "Malicious litigation," International Review of Law and Economics, Elsevier, vol. 47(C), pages 24-32.
    14. Miceli, Thomas J., 1999. "Settlement delay as a sorting device," International Review of Law and Economics, Elsevier, vol. 19(2), pages 265-274, June.
    15. Miceli, Thomas J. & Stone, Michael P., 2014. "“Piggyback” lawsuits and deterrence: Can frivolous litigation improve welfare?," International Review of Law and Economics, Elsevier, vol. 39(C), pages 49-57.
    16. Roland Kirstein & Neil Rickman, 2004. ""Third Party Contingency" Contracts in Settlement and Litigation," Journal of Institutional and Theoretical Economics (JITE), Mohr Siebeck, Tübingen, vol. 160(4), pages 555-555, December.
    17. Kim, Iljoong & Kim, Jaehong, 2015. "Frivolous Suits In The Infinitely-Repeated Litigation Game With Uncertainty," Hitotsubashi Journal of Economics, Hitotsubashi University, vol. 56(1), pages 21-33, June.
    18. Klement, Alon, 2003. "Threats to sue and cost divisibility under asymmetric information," International Review of Law and Economics, Elsevier, vol. 23(3), pages 261-272, September.
    19. repec:hit:hitjcm:v:56:y:2015:i:1:p:21-33 is not listed on IDEAS
    20. Chris Kuo, 2014. "An Economic Analysis on Overbilling Incentives and Auditing Programs," Journal of Business Ethics, Springer, vol. 121(3), pages 441-449, May.
    21. Spier, Kathryn E. & Sykes, Alan O., 1998. "Capital structure, priority rules, and the settlement of civil claims," International Review of Law and Economics, Elsevier, vol. 18(2), pages 187-200, June.
    22. Jack Hirshleifer & Evan Osborne, 1999. "Truth and the Legal Battle," UCLA Economics Working Papers 790, UCLA Department of Economics.
    23. Warren F. Schwartz & Abraham L. Wickelgren, 2009. "Credible discovery, settlement, and negative expected value suits," RAND Journal of Economics, RAND Corporation, vol. 40(4), pages 636-657.

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