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Costly litigation and optimal damages

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  • Polinsky, A. Mitchell
  • Shavell, Steven

Abstract

A basic principle of law is that damages paid by a liable party should equal the harm caused by that party. However, this principle is not correct when account is taken of litigation costs, because they too are part of the social costs associated with an injury. In this article we examine the influence of litigation costs on the optimal level of damages, assuming that litigation costs rise with the level of damages. Due to this consideration, we demonstrate that optimal damages can lie anywhere between zero and the harm plus the victim's litigation costs.

Suggested Citation

  • Polinsky, A. Mitchell & Shavell, Steven, 2014. "Costly litigation and optimal damages," International Review of Law and Economics, Elsevier, vol. 37(C), pages 86-89.
    • Handle: RePEc:eee:irlaec:v:37:y:2014:i:c:p:86-89
    DOI: 10.1016/j.irle.2013.05.002
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    References listed on IDEAS

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    1. Hylton, Keith N., 1990. "The influence of litigation costs on deterrence under strict liability and under negligence," International Review of Law and Economics, Elsevier, vol. 10(2), pages 161-171, September.
    2. Shavell, Steven, 1997. "The Fundamental Divergence between the Private and the Social Motive to Use the Legal System," The Journal of Legal Studies, University of Chicago Press, vol. 26(2), pages 575-612, June.
    3. Shavell, Steven, 1999. "The level of litigation: private versus social optimality of suit and of settlement," International Review of Law and Economics, Elsevier, vol. 19(1), pages 99-115, March.
    4. Katz, Avery, 1988. "Judicial decisionmaking and litigation expenditure," International Review of Law and Economics, Elsevier, vol. 8(2), pages 127-143, December.
    5. Joni Hersch & W. Kip Viscusi, 2007. "Tort Liability Litigation Costs for Commercial Claims," American Law and Economics Review, American Law and Economics Association, vol. 9(2), pages 330-369.
    6. repec:reg:rpubli:575 is not listed on IDEAS
    7. Polinsky, A Mitchell & Rubinfeld, Daniel L, 1988. "The Welfare Implications of Costly Litigation for the Level of Liability," The Journal of Legal Studies, University of Chicago Press, vol. 17(1), pages 151-164, January.
    8. Keith N. Hylton, 2002. "Welfare Implications of Costly Litigation under Strict Liability," American Law and Economics Review, American Law and Economics Association, vol. 4(1), pages 18-43, January.
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    Citations

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    Cited by:

    1. De Mot, Jef & Miceli, Thomas J., 2019. "The optimal adjustment to liability when litigation is costly: A note," International Review of Law and Economics, Elsevier, vol. 58(C), pages 127-131.
    2. Hylton, Keith N. & Zhang, Mengxi, 2017. "Optimal remedies for patent infringement," International Review of Law and Economics, Elsevier, vol. 52(C), pages 44-57.
    3. Amirhossein Fard & Ibrahim Siraj & Bin Wang, 2022. "Don't interfere with my rights! Employee rights violation and the cost of bank loans," Financial Markets, Institutions & Instruments, John Wiley & Sons, vol. 31(5), pages 239-258, December.
    4. Farmer Amy & Pecorino Paul, 2016. "Litigation with a Variable Cost of Trial," Review of Law & Economics, De Gruyter, vol. 12(2), pages 203-226, July.
    5. Charles F. Mason, 2017. "Public Policy Towards Offshore Oil Spills," CESifo Working Paper Series 6584, CESifo.
    6. Laux, Volker & Stocken, Phillip C., 2018. "Accounting standards, regulatory enforcement, and innovation," Journal of Accounting and Economics, Elsevier, vol. 65(2), pages 221-236.
    7. Omer Unsal & M. Kabir Hassan, 2020. "Employee lawsuits and capital structure," Review of Managerial Science, Springer, vol. 14(3), pages 663-704, June.

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    More about this item

    Keywords

    Litigation costs; Optimal damages;

    JEL classification:

    • K13 - Law and Economics - - Basic Areas of Law - - - Tort Law and Product Liability; Forensic Economics
    • K41 - Law and Economics - - Legal Procedure, the Legal System, and Illegal Behavior - - - Litigation Process

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