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Incentives to Settle Under Joint and Several Liability

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  • Howard F. Chang
  • Hilary Sigman

Abstract

Congress may soon restrict joint and several liability for cleanup of contaminated sites under Superfund. We explore whether this change would discourage settlements and is therefore likely to increase the program's already high litigation costs. Recent theoretical research by Kornhauser and Revesz finds that joint and several liability may either encourage or discourage settlement, depending upon the correlation of outcomes at trial across defendants. We extend their two-defendant model to a richer framework with N defendants. This extension allows us to test the theoretical model empirically using data on Superfund litigation. We find that joint and several liability does not discourage settlements and may even encourage them. Our results support the model's predictions about the effects of several variables, such as the degree of correlation in trial outcomes.

Suggested Citation

  • Howard F. Chang & Hilary Sigman, 1999. "Incentives to Settle Under Joint and Several Liability," NBER Working Papers 7096, National Bureau of Economic Research, Inc.
  • Handle: RePEc:nbr:nberwo:7096
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    References listed on IDEAS

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    1. Kessler, Daniel, 1996. "Institutional Causes of Delay in the Settlement of Legal Disputes," Journal of Law, Economics, and Organization, Oxford University Press, vol. 12(2), pages 432-460, October.
    2. Kathryn E. Spier, 1992. "The Dynamics of Pretrial Negotiation," Review of Economic Studies, Oxford University Press, vol. 59(1), pages 93-108.
    3. Spier, Kathryn E, 1994. "A Note on Joint and Several Liability: Insolvency, Settlement, and Incentives," The Journal of Legal Studies, University of Chicago Press, vol. 23(1), pages 559-568, January.
    4. Kiefer, Nicholas M, 1988. "Economic Duration Data and Hazard Functions," Journal of Economic Literature, American Economic Association, vol. 26(2), pages 646-679, June.
    5. Theodore Eisenberg & Henry S. Farber, 1996. "The Litigious Plaintiff Hypothesis: Case Selection and Resolution," Working Papers 743, Princeton University, Department of Economics, Industrial Relations Section..
    6. Kahan, Marcel, 1996. "The incentive effects of settlements under joint and several liability," International Review of Law and Economics, Elsevier, vol. 16(4), pages 389-395, December.
    7. Guilkey, David K. & Murphy, James L., 1993. "Estimation and testing in the random effects probit model," Journal of Econometrics, Elsevier, vol. 59(3), pages 301-317, October.
    8. Kornhauser, Lewis A & Revesz, Richard L, 1994. "Multidefendant Settlements: The Impact of Joint and Several Liability," The Journal of Legal Studies, University of Chicago Press, vol. 23(1), pages 41-76, January.
    9. Easterbrook, Frank H & Landes, William M & Posner, Richard A, 1980. "Contribution among Antitrust Defendants: A Legal and Economic Analysis," Journal of Law and Economics, University of Chicago Press, vol. 23(2), pages 331-370, October.
    10. Tom H. Tietenberg, 1989. "Indivisible Toxic Torts: The Economics of Joint and Several Liability," Land Economics, University of Wisconsin Press, vol. 65(4), pages 305-319.
    11. Klerman, Daniel, 1996. "Settling Multidefendant Lawsuits: The Advantage of Conditional Setoff Rules," The Journal of Legal Studies, University of Chicago Press, vol. 25(2), pages 445-462, June.
    12. Donohue, John J, III, 1994. "The Effect of Joint and Several Liability on the Settlement Rate--Mathematical Symmetries and Metaissues about Rational Litigant Behavior: Comment," The Journal of Legal Studies, University of Chicago Press, vol. 23(1), pages 543-558, January.
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    Cited by:

    1. Claudia M. Landeo & Kathryn E. Spier, 2009. "Naked Exclusion: An Experimental Study of Contracts with Externalities," American Economic Review, American Economic Association, vol. 99(5), pages 1850-1877, December.
    2. Michelle J. White, 2002. "Explaining the Flood of Asbestos Litigation: Consolidation, Bifurcation, and Bouquet Trials," NBER Working Papers 9362, National Bureau of Economic Research, Inc.

    More about this item

    JEL classification:

    • K41 - Law and Economics - - Legal Procedure, the Legal System, and Illegal Behavior - - - Litigation Process
    • Q28 - Agricultural and Natural Resource Economics; Environmental and Ecological Economics - - Renewable Resources and Conservation - - - Government Policy

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