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A Note on the Divergence between the Private and the Social Motive to Settle under a Negligence Rule

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  • Spier, Kathryn E

Abstract

The private motives to settle civil lawsuits are seldom aligned with the interests of society. This article presents a simple model of a negligence rule where there is too much settlement During pretrial bargaining, the injurer has private information about his care level. In equilibrium the injurer randomizes between taking due care and being negligent, and the uninformed victim randomizes between making a high settlement offer (playing tough) and making a low settlement offer (playing soft). It is shown that social welfare would be improved if the victim were committed to take a tougher stance in negotiations and, consequently, more cases went to trial. Three legal policies to help align the private and social motives to settle are discussed: litigation subsidies, punitive damages, and the English Rule for allocating legal costs. Copyright 1997 by the University of Chicago.

Suggested Citation

  • Spier, Kathryn E, 1997. "A Note on the Divergence between the Private and the Social Motive to Settle under a Negligence Rule," The Journal of Legal Studies, University of Chicago Press, vol. 26(2), pages 613-621, June.
    • Handle: RePEc:ucp:jlstud:v:26:y:1997:i:2:p:613-21
    DOI: 10.1086/468009
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    Cited by:

    1. Polinsky, A. Mitchell & Shavell, Steven, 2007. "The Theory of Public Enforcement of Law," Handbook of Law and Economics, in: A. Mitchell Polinsky & Steven Shavell (ed.), Handbook of Law and Economics, edition 1, volume 1, chapter 6, pages 403-454, Elsevier.
    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. Ben Chen & José A. Rodrigues-Neto, 2023. "The interaction of emotions and cost-shifting rules in civil litigation," Economic Theory, Springer;Society for the Advancement of Economic Theory (SAET), vol. 75(3), pages 841-885, April.
    4. 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.
    5. A. Mitchell Polinsky & Steven Shavell, 2009. "Public Enforcement of Law," Chapters, in: Nuno Garoupa (ed.), Criminal Law and Economics, chapter 1, Edward Elgar Publishing.
    6. Lydie Ancelot & Cornel Oros, 2015. "Physician–patient relationship and medical accident victim compensation: some insights into the French regulatory system," The European Journal of Health Economics, Springer;Deutsche Gesellschaft für Gesundheitsökonomie (DGGÖ), vol. 16(5), pages 529-542, June.
    7. Steven Shavell & A. Mitchell Polinsky, 2000. "The Economic Theory of Public Enforcement of Law," Journal of Economic Literature, American Economic Association, vol. 38(1), pages 45-76, March.
    8. Claudia M. Landeo & Maxim Nikitin, 2006. "Split-Award Tort Reform, Firm's Level of Care, and Litigation Outcomes," Journal of Institutional and Theoretical Economics (JITE), Mohr Siebeck, Tübingen, vol. 162(4), pages 571-600, December.
    9. Steven Shavell, 2005. "Liability for Accidents," NBER Working Papers 11781, National Bureau of Economic Research, Inc.
    10. Sylvain Bourjade & Patrick Rey & Paul Seabright, 2009. "Private Antitrust Enforcement In The Presence Of Pre‐Trial Bargaining," Journal of Industrial Economics, Wiley Blackwell, vol. 57(3), pages 372-409, September.
    11. Guerra Alice & Luppi Barbara & Parisi Francesco, 2019. "Standards of Proof and Civil Litigation: A Game-Theoretic Analysis," The B.E. Journal of Theoretical Economics, De Gruyter, vol. 19(1), pages 1-19, January.
    12. Chu, C.Y. Cyrus & Huang, Chen-Ying, 2004. "On the definition and efficiency of punitive damages," International Review of Law and Economics, Elsevier, vol. 24(2), pages 241-254, June.

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