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Economics of Evidence, Procedure and Litigation
Over the last three decades, the use of mathematical methods and logic and the innovative application of game theoretic, economic and statistical methods have reshaped the way scholars of legal evidence and procedure think about core features of the current legal system and the construction of an ideal justice system. In this comprehensive collection, Professor Sanchirico has brought together the major breakthroughs in this exciting confluence of scholarly methods and concerns.
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Contributors
Contents
More Information
Over the last three decades, the use of mathematical methods and logic and the innovative application of game theoretic, economic and statistical methods have reshaped the way scholars of legal evidence and procedure think about core features of the current legal system and the construction of an ideal justice system. In this comprehensive collection, Professor Sanchirico has brought together the major breakthroughs in this exciting confluence of scholarly methods and concerns.
Volume I corresponds in essence to the legal field of procedure. It includes papers which focus mainly on events which surround and are influenced by trial, rather than on trial itself: such events include the decision to sue, the settlement of disputes out of court and ‘primary activity’ behaviour, such as contractual performance, product design or precaution in hazardous activities. Volume II corresponds more to the field of evidence. It delves into the workings of the trial process itself and investigates the interaction between the actual mechanics of trial on the one hand and filing, settlement, and primary activity behaviour on the other.
Volume I corresponds in essence to the legal field of procedure. It includes papers which focus mainly on events which surround and are influenced by trial, rather than on trial itself: such events include the decision to sue, the settlement of disputes out of court and ‘primary activity’ behaviour, such as contractual performance, product design or precaution in hazardous activities. Volume II corresponds more to the field of evidence. It delves into the workings of the trial process itself and investigates the interaction between the actual mechanics of trial on the one hand and filing, settlement, and primary activity behaviour on the other.
Contributors
47 articles, dating from 1971 to 2004
Contributors include: R. Allan, L. Bebchuk, R. Cooter, A. Daughety, R. Friedman, D. Kaye, R. Lempert, A.M. Polinsky, R. Posner, J. Reinganum, D. Rubinfeld, S. Shavell
Contributors include: R. Allan, L. Bebchuk, R. Cooter, A. Daughety, R. Friedman, D. Kaye, R. Lempert, A.M. Polinsky, R. Posner, J. Reinganum, D. Rubinfeld, S. Shavell
Contents
Contents:
Volume I
Acknowledgements
Introduction to Volume I Chris William Sanchirico
PART I MODELS WITH EXOGENOUS LITIGATION SPENDING
A Settlement and Plea Bargaining: Cooperative Game Theory Approach
1. Richard A. Posner (1973), excerpts from ‘An Economic Approach to Legal Procedure and Judicial Administration’
2. John P. Gould (1973), excerpt from ‘The Economics of Legal Conflicts’
3. William M. Landes (1971), excerpt from ‘An Economic Analysis of the Courts’
B Settlement and Plea Bargaining: Asymmetric Information Models
4. Lucian Arye Bebchuk (1984), ‘Litigation and Settlement under Imperfect Information’
5. Kathryn E. Spier (1992), ‘The Dynamics of Pretrial Negotiation’
6. Jennifer F. Reinganum and Louis L. Wilde (1986), ‘Settlement, Litigation, and the Allocation of Litigation Costs’
C The Selection of Disputes for Litigation
7. George L. Priest and Benjamin Klein (1984), excerpts from ‘The Selection of Disputes for Litigation’
8. Steven Shavell (1996), ‘Any Frequency of Plaintiff Victory at Trial is Possible’
9. Joel Waldfogel (1995), ‘The Selection Hypothesis and the Relationship between Trial and Plaintiff Victory’
D The Allocation of Legal Costs
10. Steven Shavell (1982), ‘Suit, Settlement, and Trial: A Theoretical Analysis under Alternative Methods for the Allocation of Legal Costs’
11. Geoffrey P. Miller (1986), ‘An Economic Analysis of Rule 68’
E Negative Expected Value Suits
12. Lucian Arye Bebchuk (1988), ‘Suing Solely to Extract a Settlement Offer’
13. Lucian Arye Bebchuk (1996), ‘A New Theory Concerning the Credibility and Success of Threats to Sue’
F Discovery
14. Robert D. Cooter and Daniel L. Rubinfeld (1994), ‘An Economic Model of Legal Discovery’
15. Henry S. Farber and Michelle J. White (1991), ‘Medical Malpractice: An Empirical Examination of the Litigation Process’
16. Bruce L. Hay (1994), ‘Civil Discovery: Its Effects and Optimal Scope’
G Litigation and Primary Activity Incentives
17. Steven Shavell (1982), ‘The Social versus the Private Incentive to Bring Suit in a Costly Legal System’
18. Susan Rose-Ackerman and Mark Geistfeld (1987), ‘The Divergence between Social and Private Incentives to Sue: A Comment on Shavell, Menell, and Kaplow’
19. A. Mitchell Polinsky and Daniel L. Rubinfeld (1988), ‘The Welfare Implications of Costly Litigation for the Level of Liability’
20. A. Mitchell Polinsky and Yeon-Koo Che (1991), ‘Decoupling Liablility: Optimal Incentives for Care and Litigation’
PART II MODELS WITH ENDOGENOUS LITIGATION SPENDING
A The Litigation Expenditure Game
21. Richard A. Posner (1973), excerpts from ‘An Economic Approach to Legal Procedure and Judicial Administration’
22. Avery Katz (1988), ‘Judicial Decisionmaking and Litigation Expenditure’
23. George B. Shepherd (1999), ‘An Empirical Study of the Economics of Pretrial Discovery’
B How Results Change when Spending is Endogenous
24. Ronald Braeutigam, Bruce Owen and John Panzar (1984) ‘An Economic Analysis of Alternative Fee Shifting Systems’
25. Albert Choi and Chris William Sanchirico (2004), ‘Should Plaintiffs Win What Defendants Lose? Litigation Stakes, Litigation Effort, and the Benefits of Decoupling’
Name Index
Volume II
Acknowledgements
Introduction to Volume II Chris William Sanchirico
PART I THE PRODUCTION AND INTERPRETATION OF LEGAL EVIDENCE: FOUR APPROACHES
A Pure Probabilistic Deduction
1. Richard O. Lempert (1977), ‘Modeling Relevance’
2. Ronald J. Allen (1986), ‘ A Reconceptualization of Civil Trials’
B Omission Models
3. Paul Milgrom and John Roberts (1986), ‘Relying on the Information of Interested Parties’
C Endogenous Cost Evidence
4. Chris William Sanchirico (2001), ‘Relying on the Information of Interested – and Potentially Dishonest – Parties’
D Correlated Private Information
5. Chris William Sanchirico (2000), ‘Games, Information, and Evidence Production: With Application to English Legal History’
PART II TRUTH FINDING VERSUS PRIMARY ACTIVITY INCENTIVE SETTING
6. Richard A. Posner (1973), excerpts from ‘An Economic Approach to Legal Procedure and Judicial Administration’
7. Louis Kaplow and Steven Shavell (1996), ‘Accuracy in the Assessment of Damages’
8. Kathryn E. Spier (1994), ‘Settlement Bargaining and the Design of Damage Awards’
PART III ADVERSARIAL PROCESS VERSUS INQUISITORIAL PROCESS
A Balance or Bias in Adversarial Competition
9. Luke M. Froeb and Bruce H. Kobayashi (1996), ‘Naive, Biased, yet Bayesian; Can Juries Interpret Selectively Produced Evidence?’
10. Andrew F. Daughety and Jennifer F. Reinganum (2000), ‘On the Economics of Trials: Adversarial Process, Evidence, and Equilibrium Bias’
B Explicit Comparison
11. Hyun Song Shin (1998), ‘Adversarial and Inquisitorial Procedures in Arbitration’
12. Luke M. Froeb and Bruce H. Kobayashi (2001), ‘Evidence Production in Adversarial vs. Inquisitorial Regimes’
13. Francesco Parisi (2002), ‘Rent-seeking through Litigation: Adversarial and Inquisitorial Systems Compared’
PART IV SPECIFIC RULES OF EVIDENCE AND PROCEDURE
A Proof Burdens
14. David Kaye (1982), ‘The Limits of the Preponderance of the Evidence Standard: Justifiably Naked Statistical Evidence and Multiple Causation’
15. Chris William Sanchirico (1997), ‘The Burden of Proof in Civil Litigation: A Simple Model of Mechanism Design’
16. Bruce L. Hay and Kathryn E. Spier (1997), ‘Burdens of Proof in Civil Litigation: An Economic Perspective’
B Character Evidence
17. Chris Sanchirico (2001), excerpts from ‘Character Evidence and the Object of Trial’
C Hearsay
18. Richard D. Friedman (1992), excerpts from ‘Toward a Partial Economic, Game-Theoretic Analysis of Hearsay’
D Privilege
19. Stephen McG. Bundy and Einer Richard Elhauge (1991), excerpts from ‘Do Lawyers Improve the Adversary System? A General Theory of Litigation Advice and Its Regulation’
E Perjury, Obstruction of Justice and Similar Sanctions: Optimal Level
20. Steven Shavell (1989), ‘Optimal Sanctions and the Incentive to Provide Evidence to Legal Tribunals’
21. Chris William Sanchirico (2004), excerpts from ‘Evidence Tampering’
F Perjury, Obstruction of Justice and Similar Sanctions: Optimal Structure
22. Chris William Sanchirico (2004), excerpt from ‘Evidence Tampering’
Name Index
Volume I
Acknowledgements
Introduction to Volume I Chris William Sanchirico
PART I MODELS WITH EXOGENOUS LITIGATION SPENDING
A Settlement and Plea Bargaining: Cooperative Game Theory Approach
1. Richard A. Posner (1973), excerpts from ‘An Economic Approach to Legal Procedure and Judicial Administration’
2. John P. Gould (1973), excerpt from ‘The Economics of Legal Conflicts’
3. William M. Landes (1971), excerpt from ‘An Economic Analysis of the Courts’
B Settlement and Plea Bargaining: Asymmetric Information Models
4. Lucian Arye Bebchuk (1984), ‘Litigation and Settlement under Imperfect Information’
5. Kathryn E. Spier (1992), ‘The Dynamics of Pretrial Negotiation’
6. Jennifer F. Reinganum and Louis L. Wilde (1986), ‘Settlement, Litigation, and the Allocation of Litigation Costs’
C The Selection of Disputes for Litigation
7. George L. Priest and Benjamin Klein (1984), excerpts from ‘The Selection of Disputes for Litigation’
8. Steven Shavell (1996), ‘Any Frequency of Plaintiff Victory at Trial is Possible’
9. Joel Waldfogel (1995), ‘The Selection Hypothesis and the Relationship between Trial and Plaintiff Victory’
D The Allocation of Legal Costs
10. Steven Shavell (1982), ‘Suit, Settlement, and Trial: A Theoretical Analysis under Alternative Methods for the Allocation of Legal Costs’
11. Geoffrey P. Miller (1986), ‘An Economic Analysis of Rule 68’
E Negative Expected Value Suits
12. Lucian Arye Bebchuk (1988), ‘Suing Solely to Extract a Settlement Offer’
13. Lucian Arye Bebchuk (1996), ‘A New Theory Concerning the Credibility and Success of Threats to Sue’
F Discovery
14. Robert D. Cooter and Daniel L. Rubinfeld (1994), ‘An Economic Model of Legal Discovery’
15. Henry S. Farber and Michelle J. White (1991), ‘Medical Malpractice: An Empirical Examination of the Litigation Process’
16. Bruce L. Hay (1994), ‘Civil Discovery: Its Effects and Optimal Scope’
G Litigation and Primary Activity Incentives
17. Steven Shavell (1982), ‘The Social versus the Private Incentive to Bring Suit in a Costly Legal System’
18. Susan Rose-Ackerman and Mark Geistfeld (1987), ‘The Divergence between Social and Private Incentives to Sue: A Comment on Shavell, Menell, and Kaplow’
19. A. Mitchell Polinsky and Daniel L. Rubinfeld (1988), ‘The Welfare Implications of Costly Litigation for the Level of Liability’
20. A. Mitchell Polinsky and Yeon-Koo Che (1991), ‘Decoupling Liablility: Optimal Incentives for Care and Litigation’
PART II MODELS WITH ENDOGENOUS LITIGATION SPENDING
A The Litigation Expenditure Game
21. Richard A. Posner (1973), excerpts from ‘An Economic Approach to Legal Procedure and Judicial Administration’
22. Avery Katz (1988), ‘Judicial Decisionmaking and Litigation Expenditure’
23. George B. Shepherd (1999), ‘An Empirical Study of the Economics of Pretrial Discovery’
B How Results Change when Spending is Endogenous
24. Ronald Braeutigam, Bruce Owen and John Panzar (1984) ‘An Economic Analysis of Alternative Fee Shifting Systems’
25. Albert Choi and Chris William Sanchirico (2004), ‘Should Plaintiffs Win What Defendants Lose? Litigation Stakes, Litigation Effort, and the Benefits of Decoupling’
Name Index
Volume II
Acknowledgements
Introduction to Volume II Chris William Sanchirico
PART I THE PRODUCTION AND INTERPRETATION OF LEGAL EVIDENCE: FOUR APPROACHES
A Pure Probabilistic Deduction
1. Richard O. Lempert (1977), ‘Modeling Relevance’
2. Ronald J. Allen (1986), ‘ A Reconceptualization of Civil Trials’
B Omission Models
3. Paul Milgrom and John Roberts (1986), ‘Relying on the Information of Interested Parties’
C Endogenous Cost Evidence
4. Chris William Sanchirico (2001), ‘Relying on the Information of Interested – and Potentially Dishonest – Parties’
D Correlated Private Information
5. Chris William Sanchirico (2000), ‘Games, Information, and Evidence Production: With Application to English Legal History’
PART II TRUTH FINDING VERSUS PRIMARY ACTIVITY INCENTIVE SETTING
6. Richard A. Posner (1973), excerpts from ‘An Economic Approach to Legal Procedure and Judicial Administration’
7. Louis Kaplow and Steven Shavell (1996), ‘Accuracy in the Assessment of Damages’
8. Kathryn E. Spier (1994), ‘Settlement Bargaining and the Design of Damage Awards’
PART III ADVERSARIAL PROCESS VERSUS INQUISITORIAL PROCESS
A Balance or Bias in Adversarial Competition
9. Luke M. Froeb and Bruce H. Kobayashi (1996), ‘Naive, Biased, yet Bayesian; Can Juries Interpret Selectively Produced Evidence?’
10. Andrew F. Daughety and Jennifer F. Reinganum (2000), ‘On the Economics of Trials: Adversarial Process, Evidence, and Equilibrium Bias’
B Explicit Comparison
11. Hyun Song Shin (1998), ‘Adversarial and Inquisitorial Procedures in Arbitration’
12. Luke M. Froeb and Bruce H. Kobayashi (2001), ‘Evidence Production in Adversarial vs. Inquisitorial Regimes’
13. Francesco Parisi (2002), ‘Rent-seeking through Litigation: Adversarial and Inquisitorial Systems Compared’
PART IV SPECIFIC RULES OF EVIDENCE AND PROCEDURE
A Proof Burdens
14. David Kaye (1982), ‘The Limits of the Preponderance of the Evidence Standard: Justifiably Naked Statistical Evidence and Multiple Causation’
15. Chris William Sanchirico (1997), ‘The Burden of Proof in Civil Litigation: A Simple Model of Mechanism Design’
16. Bruce L. Hay and Kathryn E. Spier (1997), ‘Burdens of Proof in Civil Litigation: An Economic Perspective’
B Character Evidence
17. Chris Sanchirico (2001), excerpts from ‘Character Evidence and the Object of Trial’
C Hearsay
18. Richard D. Friedman (1992), excerpts from ‘Toward a Partial Economic, Game-Theoretic Analysis of Hearsay’
D Privilege
19. Stephen McG. Bundy and Einer Richard Elhauge (1991), excerpts from ‘Do Lawyers Improve the Adversary System? A General Theory of Litigation Advice and Its Regulation’
E Perjury, Obstruction of Justice and Similar Sanctions: Optimal Level
20. Steven Shavell (1989), ‘Optimal Sanctions and the Incentive to Provide Evidence to Legal Tribunals’
21. Chris William Sanchirico (2004), excerpts from ‘Evidence Tampering’
F Perjury, Obstruction of Justice and Similar Sanctions: Optimal Structure
22. Chris William Sanchirico (2004), excerpt from ‘Evidence Tampering’
Name Index