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Cost Shifting in Civil Litigation: A General Theory

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  • Ben Chen
  • José A. Rodrigues-Neto

Abstract

We model civil litigation as a contest between a plaintiff and a defendant. A success function describes the litigants’ respective posterior probabilities of success based on their simultaneously-chosen efforts and an exogenous prior reflecting their relative advantages. The present success function satisfies general assumptions which capture frequently-used functional forms. These assumptions represent natural intuitions regarding the properties of reasonable success functions, and enable the results arising from the present model to reach a great degree of generality. Another generalization is the use of an exogenous proportion to characterize a cost-shifting rule that allows the winner to recover that proportion of her litigation costs from the loser. There exists a unique Nash equilibrium with positive efforts. In equilibrium, more cost shifting makes the outcome of the case more predictable, but may increase the litigants’ collective expenditure and decrease their collective welfare.

Suggested Citation

  • Ben Chen & José A. Rodrigues-Neto, 2017. "Cost Shifting in Civil Litigation: A General Theory," ANU Working Papers in Economics and Econometrics 2017-651, Australian National University, College of Business and Economics, School of Economics.
    • Handle: RePEc:acb:cbeeco:2017-651
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    File URL: https://www.cbe.anu.edu.au/researchpapers/econ/wp651.pdf
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    References listed on IDEAS

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    1. Kaplow, Louis & Shavell, Steven, 1996. "Accuracy in the Assessment of Damages," Journal of Law and Economics, University of Chicago Press, vol. 39(1), pages 191-210, April.
    2. Katz, Avery, 1987. "Measuring the Demand for Litigation: Is the English Rule Really Cheaper?," The Journal of Law, Economics, and Organization, Oxford University Press, vol. 3(2), pages 143-176, Fall.
    3. Richard Cornes & Roger Hartley, 2012. "Risk aversion in symmetric and asymmetric contests," Economic Theory, Springer;Society for the Advancement of Economic Theory (SAET), vol. 51(2), pages 247-275, October.
    4. Richard Cornes & Roger Hartley, 2005. "Asymmetric contests with general technologies," Economic Theory, Springer;Society for the Advancement of Economic Theory (SAET), vol. 26(4), pages 923-946, November.
    5. 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.
    6. Stergios Skaperdas, 1996. "Contest success functions (*)," Economic Theory, Springer;Society for the Advancement of Economic Theory (SAET), vol. 7(2), pages 283-290.
    7. Hyde, Charles E. & Williams, Philip L., 2002. "Necessary costs and expenditure incentives under the English rule," International Review of Law and Economics, Elsevier, vol. 22(2), pages 133-152, August.
    8. Barbara Luppi & Francesco Parisi, 2012. "Litigation and legal evolution: does procedure matter?," Public Choice, Springer, vol. 152(1), pages 181-201, July.
    9. Luis C. Corchón & Marco Serena, 2018. "Contest theory," Chapters, in: Luis C. Corchón & Marco A. Marini (ed.), Handbook of Game Theory and Industrial Organization, Volume II, chapter 6, pages 125-146, Edward Elgar Publishing.
    10. Hause, John C, 1989. "Indemnity, Settlement, and Litigation, or I'll Be Suing You," The Journal of Legal Studies, University of Chicago Press, vol. 18(1), pages 157-179, January.
    11. Diewert, W. E. & Avriel, M. & Zang, I., 1981. "Nine kinds of quasiconcavity and concavity," Journal of Economic Theory, Elsevier, vol. 25(3), pages 397-420, December.
    12. Amy Farmer & Paul Pecorino, 1999. "Legal expenditure as a rent-seeking game," Springer Books, in: Roger D. Congleton & Kai A. Konrad & Arye L. Hillman (ed.), 40 Years of Research on Rent Seeking 2, pages 379-396, Springer.
    13. 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.
    14. Einy, E. & Haimanko, O. & Moreno, D. & Sela, A. & Shitovitz, B., 2015. "Equilibrium existence in Tullock contests with incomplete information," Journal of Mathematical Economics, Elsevier, vol. 61(C), pages 241-245.
    15. Carbonara Emanuela & Parisi Francesco & von Wangenheim Georg, 2015. "Rent-Seeking and Litigation: The Hidden Virtues of Limited Fee Shifting," Review of Law & Economics, De Gruyter, vol. 11(2), pages 113-148, July.
    16. Chris William Sanchirico (ed.), 2012. "Procedural Law and Economics," Books, Edward Elgar Publishing, number 13092.
    17. Gong, Jiong & McAfee, R Preston, 2000. "Pretrial Negotiation, Litigation, and Procedural Rules," Economic Inquiry, Western Economic Association International, vol. 38(2), pages 218-238, April.
    18. Plott, Charles R, 1987. "Legal Fees: A Comparison of the American and English Rules," The Journal of Law, Economics, and Organization, Oxford University Press, vol. 3(2), pages 185-192, Fall.
    19. Katz, Avery, 1988. "Judicial decisionmaking and litigation expenditure," International Review of Law and Economics, Elsevier, vol. 8(2), pages 127-143, December.
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    More about this item

    Keywords

    cost shifting; legal predictability; litigation costs; legal accuracy; contest theory.;
    All these keywords.

    JEL classification:

    • C72 - Mathematical and Quantitative Methods - - Game Theory and Bargaining Theory - - - Noncooperative Games
    • K41 - Law and Economics - - Legal Procedure, the Legal System, and Illegal Behavior - - - Litigation Process

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