This chapter — to be included in Research Handbook on the Economics of Torts (Arlen ed., Kluwer, forthcoming 2012) — assesses economic rationales for punitive damages in light of contemporary empirics and doctrine. The primary economic rationale for supra-compensatory damages is optimal...

This paper studies the combined effects of legal fees and legal expenses insurance. We use a litigation model to compare litigants' settlement decisions under a before-the-event insurance plus an hourly fee contract (BTE) and an after-the-event insurance plus a conditional fee contract (ATE)....

A subtle shift has taken place in the mechanics of preemption, the doctrine that determines when federal law displaces state law. In the past, Congress was the leading actor, and courts and commentators focused almost exclusively on the precise wording of its statutory directives as a clue to...

The economic models of bargaining and tort law have not been integrated into a coherent theory that reflects the empirical world. This Article models the interaction of settlement dynamics and the theory of negligence. It shows that tort claims are systematically devalued during settlement...

This essay explores whether collective settlements offer advantages for achieving just outcomes in light of the various types of uncertainty that arise in mass disputes. Looking in particular at the example of product liability litigation, one can identify at least six areas of potential...

What it means to fully compensate a plaintiff can depend on whether one approaches the question from an efficiency perspective, a corrective justice view, or some other normative stance. One formulation of “compensation” is prominent in theoretical work and in the day-to-day operation of the...

Since the issue first arose in earnest in the 1970s, courts have struggled to create rules for causation in toxic tort cases that are both consistent with longstanding tort principles and fair to all parties. Faced with conflicting and often novel expert testimony, scientific uncertainty, the...

This paper sets out a public choice (rent-seeking) theory of the Due Process Clause, which implies that the function of the clause is to prevent takings through the legislative or common law process. This view of the clause's function supports a preference for expanding rather than contracting...

Groundwater modelling is used to establish liability in complex environmental litigation, where subsurface contamination is at issue. As in all complicated legal actions experts are called upon to establish the validity and the accuracy of a groundwater model. The end result of most, if not all,...

This article offers a short summary and some references on the “passing on” defense admissibility in antitrust litigation. The US, EU and some European Member States are taken into account. The aim of this working paper is to facilitate a new analysis of the topic, which seems to be...