Regulating the Content and Volume of Litigation

An Economic Analysis

by George L. Priest


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In recent years, courts and legislatures have used rules that shift liability for court costs and attorneys' fees to plaintiffs or defendants to achieve two different objectives: to encourage litigation by particular plaintiffs (in civil rights, pollution, and consumer litigation), and to regulate the volume of litigation (most commonly to encourage settlement). These goals are contradictory and in conflict in a recent Supreme Court case, [Delta Air Lines, Inc. vs. August]. This essay discusses the distributive effects of these rules and their effects on the rate of litigation. The analysis expands other recent treatments by considering offer-of-judgment rules and the parties' strategic actions.

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