Ghent University Academic Bibliography

Advanced

Law in the shadow of bargaining: the feedback effect of civil settlements

Ben Depoorter UGent (2010) CORNELL LAW REVIEW. 95(5). p.957-987
abstract
Lawmakers, courts, and legal scholars often express concern with regard to civil settlements because settlement agreements withhold important information from the public. This Essay identifies, to the contrary, problematic issues involving the availability of information on non-representative settlements. The theoretical and empirical evidence presented in this Essay, demonstrates that, despite the widespread use of non-disclosure agreements, information on settlements is distributed both inside and outside legal communities, reaching actors through various channels including the oral culture in legal communities, specialized reporters, professional interest organizations, and media coverage. Moreover, information on private settlement agreements circulates more widely if the agreed compensation in a given settlement exceeds the expected value of the claim at trial. For example, professional organizations highlight novel settlements that are strategically important to lawyers, and special interest groups bring attention to extravagant settlements that are most likely to induce legislative action. The selective availability of information on outlier settlements increases the potential costs of settlement agreements. Individual settlement concessions make it harder for similarly situated defendants to deflect forthcoming claims. Ambitious trial lawyers will use prior settlements as minimum bargaining thresholds. Plaintiffs in future cases become more demanding and are more reluctant to accept settlements below what has been agreed to in prior, analogous settlements. Moreover, due to their non-coercive nature, settlements may frame the normative outlook on particular claims or disputes. Consequently, settlement trends may become normative benchmarks to judges and juries that seek to reinforce such valuations in settlement conferences or trials. The settlement dynamics identified in this Essay provide a novel inroad for possible research on the evolution of remedies and damages in various areas of law and presents a more refined perspective on mandatory disclosure statutes and other regulatory approaches to confidential settlements.
Please use this url to cite or link to this publication:
author
organization
year
type
journalArticle (original)
publication status
published
subject
keyword
JUDGES, INFORMATION, TRIAL, LITIGATION, SELECTION HYPOTHESIS, COMMON-LAW, ECONOMIC-ANALYSIS, NEGOTIATION, LAWYERS, CONFIDENTIALITY
journal title
CORNELL LAW REVIEW
Cornell Law Rev.
volume
95
issue
5
pages
957 - 987
Web of Science type
Article
Web of Science id
000279983100003
JCR category
LAW
JCR impact factor
2.47 (2010)
JCR rank
10/128 (2010)
JCR quartile
1 (2010)
ISSN
0010-8847
language
English
UGent publication?
no
classification
A1
copyright statement
I have transferred the copyright for this publication to the publisher
id
1168229
handle
http://hdl.handle.net/1854/LU-1168229
date created
2011-02-24 09:37:26
date last changed
2016-12-19 15:46:37
@article{1168229,
  abstract     = {Lawmakers, courts, and legal scholars often express concern with regard to civil settlements because settlement agreements withhold important information from the public. This Essay identifies, to the contrary, problematic issues involving the availability of information on non-representative settlements. The theoretical and empirical evidence presented in this Essay, demonstrates that, despite the widespread use of non-disclosure agreements, information on settlements is distributed both inside and outside legal communities, reaching actors through various channels including the oral culture in legal communities, specialized reporters, professional interest organizations, and media coverage. Moreover, information on private settlement agreements circulates more widely if the agreed compensation in a given settlement exceeds the expected value of the claim at trial. For example, professional organizations highlight novel settlements that are strategically important to lawyers, and special interest groups bring attention to extravagant settlements that are most likely to induce legislative action. The selective availability of information on outlier settlements increases the potential costs of settlement agreements. Individual settlement concessions make it harder for similarly situated defendants to deflect forthcoming claims. Ambitious trial lawyers will use prior settlements as minimum bargaining thresholds. Plaintiffs in future cases become more demanding and are more reluctant to accept settlements below what has been agreed to in prior, analogous settlements. Moreover, due to their non-coercive nature, settlements may frame the normative outlook on particular claims or disputes. Consequently, settlement trends may become normative benchmarks to judges and juries that seek to reinforce such valuations in settlement conferences or trials. The settlement dynamics identified in this Essay provide a novel inroad for possible research on the evolution of remedies and damages in various areas of law and presents a more refined perspective on mandatory disclosure statutes and other regulatory approaches to confidential settlements.},
  author       = {Depoorter, Ben},
  issn         = {0010-8847},
  journal      = {CORNELL LAW REVIEW},
  keyword      = {JUDGES,INFORMATION,TRIAL,LITIGATION,SELECTION HYPOTHESIS,COMMON-LAW,ECONOMIC-ANALYSIS,NEGOTIATION,LAWYERS,CONFIDENTIALITY},
  language     = {eng},
  number       = {5},
  pages        = {957--987},
  title        = {Law in the shadow of bargaining: the feedback effect of civil settlements},
  volume       = {95},
  year         = {2010},
}

Chicago
Depoorter, Ben. 2010. “Law in the Shadow of Bargaining: The Feedback Effect of Civil Settlements.” Cornell Law Review 95 (5): 957–987.
APA
Depoorter, B. (2010). Law in the shadow of bargaining: the feedback effect of civil settlements. CORNELL LAW REVIEW, 95(5), 957–987.
Vancouver
1.
Depoorter B. Law in the shadow of bargaining: the feedback effect of civil settlements. CORNELL LAW REVIEW. 2010;95(5):957–87.
MLA
Depoorter, Ben. “Law in the Shadow of Bargaining: The Feedback Effect of Civil Settlements.” CORNELL LAW REVIEW 95.5 (2010): 957–987. Print.