We analyze a setting where the court has to impose liability with imperfect evidence on the defendant’s actions, and where the court is concerned about both deterrence and judicial errors. We provide a formal definition of the quality of evidence that allows us to compare evidence from very different sources and of a very different nature in terms of informativeness. When imposing liability, the court’s optimal policy is to set an evidentiary standard. The main result of the article is that with a higher quality of evidence, more lenient evidentiary standards generate greater welfare. We also find that when the agent can influence the informativeness of the evidence the interests of court and agent are not aligned. The optimal court policy may involve penalizing (even forbidding) actions leading to less informative evidence.
{"title":"Quality of Evidence and Legal Decision-Making","authors":"Juan José Ganuza, Fernando Gomez, Jose Penalva","doi":"10.1093/aler/ahab018","DOIUrl":"https://doi.org/10.1093/aler/ahab018","url":null,"abstract":"We analyze a setting where the court has to impose liability with imperfect evidence on the defendant’s actions, and where the court is concerned about both deterrence and judicial errors. We provide a formal definition of the quality of evidence that allows us to compare evidence from very different sources and of a very different nature in terms of informativeness. When imposing liability, the court’s optimal policy is to set an evidentiary standard. The main result of the article is that with a higher quality of evidence, more lenient evidentiary standards generate greater welfare. We also find that when the agent can influence the informativeness of the evidence the interests of court and agent are not aligned. The optimal court policy may involve penalizing (even forbidding) actions leading to less informative evidence.","PeriodicalId":46133,"journal":{"name":"American Law and Economics Review","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2021-12-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138528736","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article analyzes pretrial bargaining between litigants with reference-dependent preferences. We build on Bebchuk (1984, “Litigation and Settlement under Imperfect Information,” 15 Rand Journal of Economics 404–15) and, motivated by empirical evidence, assume that the referent is based on expectations. We find that reference dependence on behalf of plaintiffs increases the settlement probability. The fact that preferences are reference-dependent meaningfully influences comparative statics predictions. In our extensions, we discuss the role of fee shifting, the effect of having the referent based on the status quo instead of on expectations, and risk aversion.
本文分析了具有参考依赖偏好的当事人审前议价行为。我们在Bebchuk(1984，“不完全信息下的诉讼和和解”，15 Rand Journal of Economics 404-15)的基础上，基于经验证据，假设参考是基于预期的。我们发现原告代表的参考依赖增加了和解的可能性。偏好依赖于参考的事实有意义地影响比较静力学的预测。在我们的扩展中，我们讨论了费用转移的作用，基于现状而不是基于预期的参考的影响，以及风险规避。
{"title":"Settlement Negotiations with Reference-dependent Preferences","authors":"Christoph Rössler, Tim Friehe","doi":"10.1093/aler/ahab015","DOIUrl":"https://doi.org/10.1093/aler/ahab015","url":null,"abstract":"This article analyzes pretrial bargaining between litigants with reference-dependent preferences. We build on Bebchuk (1984, “Litigation and Settlement under Imperfect Information,” 15 Rand Journal of Economics 404–15) and, motivated by empirical evidence, assume that the referent is based on expectations. We find that reference dependence on behalf of plaintiffs increases the settlement probability. The fact that preferences are reference-dependent meaningfully influences comparative statics predictions. In our extensions, we discuss the role of fee shifting, the effect of having the referent based on the status quo instead of on expectations, and risk aversion.","PeriodicalId":46133,"journal":{"name":"American Law and Economics Review","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2021-12-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138528723","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The prison time actually served by a convicted criminal depends to a significant degree on decisions made by the state during the course of imprisonment—notably, on whether to grant parole. We study a model of the adjustment of sentences assuming that the state’s objective is the optimal deterrence of crime. In the model, the state can lower or raise a criminal’s initial sentence on the basis of deterrence-relevant information obtained during imprisonment. Our focus on sentence adjustment as a means of promoting deterrence stands in contrast to the usual emphasis in sentence adjustment policy on avoiding recidivism.
{"title":"Deterrence and the Adjustment of Sentences During Imprisonment","authors":"A Mitchell Polinsky, Steven Shavell","doi":"10.1093/aler/ahab004","DOIUrl":"https://doi.org/10.1093/aler/ahab004","url":null,"abstract":"The prison time actually served by a convicted criminal depends to a significant degree on decisions made by the state during the course of imprisonment—notably, on whether to grant parole. We study a model of the adjustment of sentences assuming that the state’s objective is the optimal deterrence of crime. In the model, the state can lower or raise a criminal’s initial sentence on the basis of deterrence-relevant information obtained during imprisonment. Our focus on sentence adjustment as a means of promoting deterrence stands in contrast to the usual emphasis in sentence adjustment policy on avoiding recidivism.","PeriodicalId":46133,"journal":{"name":"American Law and Economics Review","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2021-10-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138528728","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
We consider the extent to which a government regulator can harness information about a proposed rule from observing the stock price movements of the affected firms—information the regulator may in turn use to deliberate whether to adopt the rule. The rule comes with an uninformed ex ante (expected) value, which can be positive or negative. We find that if the rule’s ex ante value is positive and the regulator fully relies on the aggregate market reaction to guide its decision, then with many firms in the market, prices will exhibit maximal informativeness. When the ex ante value is negative, however, the regulator’s reliance on the market will dampen speculators’ incentives to gather information, and prices will become completely uninformative. This latter effect, however, can be mitigated if the regulator’s reliance is only partial. We also consider the presence of stakeholders who may be motivated to manipulate the market to steer the regulator toward privately beneficial outcomes. We find that with many firms in the market, such stakeholders’ incentives to manipulate will dissipate. The theoretical findings of this article suggest the potential benefits of a stock-market-based rulemaking mechanism in the absence of other forms of reliable empirical evidence.
{"title":"A Model of Stock-Market-Based Rulemaking","authors":"Lee Y.","doi":"10.1093/aler/ahaa011","DOIUrl":"https://doi.org/10.1093/aler/ahaa011","url":null,"abstract":"<span><div>Abstract</div>We consider the extent to which a government regulator can harness information about a proposed rule from observing the stock price movements of the affected firms—information the regulator may in turn use to deliberate <span style=\"font-style:italic;\">whether</span> to adopt the rule. The rule comes with an uninformed <span style=\"font-style:italic;\">ex ante</span> (expected) value, which can be positive or negative. We find that if the rule’s <span style=\"font-style:italic;\">ex ante</span> value is positive and the regulator fully relies on the aggregate market reaction to guide its decision, then with many firms in the market, prices will exhibit maximal informativeness. When the <span style=\"font-style:italic;\">ex ante</span> value is negative, however, the regulator’s reliance on the market will dampen speculators’ incentives to gather information, and prices will become completely uninformative. This latter effect, however, can be mitigated if the regulator’s reliance is only partial. We also consider the presence of stakeholders who may be motivated to manipulate the market to steer the regulator toward privately beneficial outcomes. We find that with many firms in the market, such stakeholders’ incentives to manipulate will dissipate. The theoretical findings of this article suggest the potential benefits of a stock-market-based rulemaking mechanism in the absence of other forms of reliable empirical evidence.</span>","PeriodicalId":46133,"journal":{"name":"American Law and Economics Review","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2021-05-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138528771","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
While many have documented the changing demographics of universities, understanding the effects of prohibiting mandatory retirement (“uncapping”) has proved challenging. We digitize detailed directories of all American law school faculty from 1971–2017 and show that uncapping in 1994 had dramatic effects. From 1971 to 1993, the percent of faculty above 70—when mandatory retirement would typically have been triggered—remained stable at 1%, but starting in 1994, that proportion increased to 14%. We use a permutation test of moving cohorts to show that these increases are attributable to uncapping. Roughly 39% of faculty members would counterfactually have been subject to mandatory retirement. Effects were less pronounced at public schools, which were more likely to have defined benefits retirement plans. Second, we show that schools with the highest proportion of faculty over 70, and thus most impacted by uncapping, also exhibit the slowest integration of female and minority faculty members. Our study highlights crosscutting effects of civil rights laws: preventing age discrimination can have collateral effects on racial and gender integration.
{"title":"Mandatory Retirement and Age, Race, and Gender Diversity of University Faculties","authors":"Daniel E. Ho, Oluchi Mbonu, A. McDonough","doi":"10.1093/ALER/AHAB002","DOIUrl":"https://doi.org/10.1093/ALER/AHAB002","url":null,"abstract":"While many have documented the changing demographics of universities, understanding the effects of prohibiting mandatory retirement (“uncapping”) has proved challenging. We digitize detailed directories of all American law school faculty from 1971–2017 and show that uncapping in 1994 had dramatic effects. From 1971 to 1993, the percent of faculty above 70—when mandatory retirement would typically have been triggered—remained stable at 1%, but starting in 1994, that proportion increased to 14%. We use a permutation test of moving cohorts to show that these increases are attributable to uncapping. Roughly 39% of faculty members would counterfactually have been subject to mandatory retirement. Effects were less pronounced at public schools, which were more likely to have defined benefits retirement plans. Second, we show that schools with the highest proportion of faculty over 70, and thus most impacted by uncapping, also exhibit the slowest integration of female and minority faculty members. Our study highlights crosscutting effects of civil rights laws: preventing age discrimination can have collateral effects on racial and gender integration.","PeriodicalId":46133,"journal":{"name":"American Law and Economics Review","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2021-05-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/ALER/AHAB002","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48597561","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
We investigate the interaction between the law’s prohibition of recovery for unrequested benefits (but provision of damages for unrequested harms) imposed on third parties, and parties’ incentives at the ex ante stage to acquire information about the harms or benefits of the activities they consider engaging in. We analyze the impact of these interactions on the efficiency ranking of two prevalent damages regimes: ex ante damages and ex post damages. We show that ex post damages induce information acquisition, thus potentially leading to more efficient decision-making. However, under an ex post regime, the existence of, and the prohibition of recovery for, unrequested benefits distort parties’ incentives to acquire information and engage in the activity. Taking into account the tradeoff between these effects, we show that the relative efficiency of ex ante versus ex post damages depends on the size of potential unrequested benefits, and how the ex ante damages are calculated by courts, specifically, whether they are truncated or not. The larger the potential unrequested benefits, the more likely nontruncated ex ante damages outperform ex post damages. In contrast, ex post damages are always more efficient than truncated ex ante damages.
{"title":"Unrequested Benefits, Damages Assessment, and Information Acquisition","authors":"Zhiyong (John) Liu, Ronen Avraham, Yue Qiao","doi":"10.1093/aler/ahab006","DOIUrl":"https://doi.org/10.1093/aler/ahab006","url":null,"abstract":"We investigate the interaction between the law’s prohibition of recovery for unrequested benefits (but provision of damages for unrequested harms) imposed on third parties, and parties’ incentives at the ex ante stage to acquire information about the harms or benefits of the activities they consider engaging in. We analyze the impact of these interactions on the efficiency ranking of two prevalent damages regimes: ex ante damages and ex post damages. We show that ex post damages induce information acquisition, thus potentially leading to more efficient decision-making. However, under an ex post regime, the existence of, and the prohibition of recovery for, unrequested benefits distort parties’ incentives to acquire information and engage in the activity. Taking into account the tradeoff between these effects, we show that the relative efficiency of ex ante versus ex post damages depends on the size of potential unrequested benefits, and how the ex ante damages are calculated by courts, specifically, whether they are truncated or not. The larger the potential unrequested benefits, the more likely nontruncated ex ante damages outperform ex post damages. In contrast, ex post damages are always more efficient than truncated ex ante damages.","PeriodicalId":46133,"journal":{"name":"American Law and Economics Review","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2021-04-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138528732","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
We investigate the effects of fee-shifting in an experimental litigation game. In our setup, a defendant may cause harm to a plaintiff. The defendant can take precautions to lower the probability of harm at a personal cost. In case of harm, the parties go to court, where the winner is determined by a rent-seeking contest. We compare two fee-shifting rules: under the American rule each party bears its own litigation costs; under the English rule the loser has to reimburse the winner’s expenses. We test the hypothesis that the English rule leads to higher litigation spending but also to higher care compared to the American rule. The experimental results largely support the predictions: fee-shifting leads to higher litigation spending, which motivates higher levels of care. When the parties are offered the possibility to settle their dispute out of court, fee-shifting leads to even higher litigation spending in court, but it neither affects the settlement rate nor care.
{"title":"Litigation Spending and Care under the English and American Rules: Experimental Evidence","authors":"Baptiste Massenot, M. Maraki, C. Thöni","doi":"10.1093/ALER/AHAB005","DOIUrl":"https://doi.org/10.1093/ALER/AHAB005","url":null,"abstract":"\u0000 We investigate the effects of fee-shifting in an experimental litigation game. In our setup, a defendant may cause harm to a plaintiff. The defendant can take precautions to lower the probability of harm at a personal cost. In case of harm, the parties go to court, where the winner is determined by a rent-seeking contest. We compare two fee-shifting rules: under the American rule each party bears its own litigation costs; under the English rule the loser has to reimburse the winner’s expenses. We test the hypothesis that the English rule leads to higher litigation spending but also to higher care compared to the American rule. The experimental results largely support the predictions: fee-shifting leads to higher litigation spending, which motivates higher levels of care. When the parties are offered the possibility to settle their dispute out of court, fee-shifting leads to even higher litigation spending in court, but it neither affects the settlement rate nor care.","PeriodicalId":46133,"journal":{"name":"American Law and Economics Review","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2021-03-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/ALER/AHAB005","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44109237","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
C. Helmers, Yassine Lefouili, B. Love, Luke McDonagh
We study the effect of fee shifting rules on litigation. First, we build a model to study the theoretical effect of a change in cost-recovery rules on case filings, (postfiling) settlement, win rates, and plaintiffs’ average litigation expenditures. We then undertake an empirical analysis of the introduction of an intermediate cost shifting rule that falls between the English and American Rules: a reform that limits the size of fee awards to successful litigants in cases decided by the Intellectual Property Enterprise Court (IPEC), one of two venues where IP cases may be filed in England and Wales. Our empirical analysis takes advantage of heterogeneity among case types and compares IPEC cases with intellectual property cases litigated at the PHC of England and Wales, which was not subject to this reform. We find that patent case filings increased following the IPEC’s shift from a pure English Rule to a rule that caps costs awards. Consistent with our model’s predictions, we also find evidence that smaller plaintiffs both won less often and settled more often postreform, as well as evidence that larger plaintiffs spent less on litigation postreform.
{"title":"The Effect of Fee Shifting on Litigation: Evidence from a Policy Innovation in Intermediate Cost Shifting","authors":"C. Helmers, Yassine Lefouili, B. Love, Luke McDonagh","doi":"10.1093/ALER/AHAB001","DOIUrl":"https://doi.org/10.1093/ALER/AHAB001","url":null,"abstract":"\u0000 We study the effect of fee shifting rules on litigation. First, we build a model to study the theoretical effect of a change in cost-recovery rules on case filings, (postfiling) settlement, win rates, and plaintiffs’ average litigation expenditures. We then undertake an empirical analysis of the introduction of an intermediate cost shifting rule that falls between the English and American Rules: a reform that limits the size of fee awards to successful litigants in cases decided by the Intellectual Property Enterprise Court (IPEC), one of two venues where IP cases may be filed in England and Wales. Our empirical analysis takes advantage of heterogeneity among case types and compares IPEC cases with intellectual property cases litigated at the PHC of England and Wales, which was not subject to this reform. We find that patent case filings increased following the IPEC’s shift from a pure English Rule to a rule that caps costs awards. Consistent with our model’s predictions, we also find evidence that smaller plaintiffs both won less often and settled more often postreform, as well as evidence that larger plaintiffs spent less on litigation postreform.","PeriodicalId":46133,"journal":{"name":"American Law and Economics Review","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2021-01-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/ALER/AHAB001","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41518372","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"OUP accepted manuscript","authors":"","doi":"10.1093/aler/ahab014","DOIUrl":"https://doi.org/10.1093/aler/ahab014","url":null,"abstract":"","PeriodicalId":46133,"journal":{"name":"American Law and Economics Review","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"60721175","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"OUP accepted manuscript","authors":"","doi":"10.1093/aler/ahab009","DOIUrl":"https://doi.org/10.1093/aler/ahab009","url":null,"abstract":"","PeriodicalId":46133,"journal":{"name":"American Law and Economics Review","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"60721344","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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