The Fifth Amendment guarantees criminal defendants the right to silence, blocking the court from drawing adverse inferences from the defendant's silence. This article investigates the conditions under which extending such protection to civil defendants might increase (or decrease) social...

The conduct of adjudication is often influenced by motions––requests made by litigants to modify the course of adjudication. The question studied in this article is why adjudication should be designed so as to permit the use of motions. The answer developed is that litigants will naturally...

When firms collude and charge supra-competitive prices, consumers can bring antitrust lawsuits against the firms. When the litigation cost is low, firms accept the cost as just another cost of doing business, whereas when the cost is high, the firms lower the price to deter litigation. Class...

We formally analyze the effects of legal presumptions in patent litigation. We set up a novel contest model to study litigation outcomes, judgement errors, and resource dissipation under three alternative presumption criteria: a presumption that the patent is valid; a presumption that the patent...

This article translates and extends Becker (1968) from public law enforcement to private litigation by examining optimal legal system design in a model with private suits, signals of case strength, court error, and two types of primary behavior: harmful acts that may be deterred and benign acts...

The last few decades have seen a dramatic shift in the admissibility of expert testimony in American courtrooms from a laissez-faire approach to a strict standard for admissibility, often called the Daubert test. The implicit rationale behind such a stringent standard for admissibility is the...

Class actions aim to bring economies of scale to bear on legal proceedings, by joining cases that have a common cause of action against a common defendant into a single lawsuit leading to a judgment or settlement that binds the entire class. Legal procedures, lawyer time, evidence by experts and...

The basic rule in civil litigation is that the plaintiff carries the burden of proof and the general standard of proof is preponderance of the evidence. The plaintiff prevails if she establishes her case with a probability exceeding 0.5. Drawing on insights from behavioral economics and new...

The advantage of the adversarial regime of judicial decision-making is the superior information of the parties while the advantage of an idealized inquisitorial regime is its neutrality. We model the tradeoff by characterizing the properties of costly estimators used by each regime. The...

In a model of pretrial bargaining under asymmetric information, we analyze the defendant’s threat to proceed to trial in the face of a rejected offer. The incidence of trial is lower when the defendant’s constraint is binding compared with the unconstrained case. The signs of some of the...