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Articles 1 - 27 of 27
Full-Text Articles in Law
Taming Blockbuster Punitive Damages Awards, W. Kip Viscusi, Benjamin J. Mcmichael
Taming Blockbuster Punitive Damages Awards, W. Kip Viscusi, Benjamin J. Mcmichael
Vanderbilt Law School Faculty Publications
Blockbuster punitive damages awards, i.e., those awards exceeding $100 million, attract attention based on their sheer size. While there have been fewer such awards in the last decade, they remain an important presence in the legal landscape. Taking notice of these and other large punitive damages awards, courts and state policymakers have taken steps to both constrain them and render them more predictable. States have enacted punitive damages caps to limit the amount of punitive damages courts can award, but these caps often contain a number of exceptions and apply only to damages under a specific state’s law. At a …
Inside The Arbitrator's Mind, Chris Guthrie, Susan D. Franck, Anne Van Aaken, James Freda, Jeffrey J. Rachlinski
Inside The Arbitrator's Mind, Chris Guthrie, Susan D. Franck, Anne Van Aaken, James Freda, Jeffrey J. Rachlinski
Vanderbilt Law School Faculty Publications
Arbitrators are lead actors in global dispute resolution. They are to global dispute resolution what judges are to domestic dispute resolution. Despite its global significance, arbitral decision making is a black box. This Article is the first to use original experimental research to explore how international arbitrators decide cases. We find that arbitrators often make intuitive and impressionistic decisions, rather than fully deliberative decisions. We also find evidence that casts doubt on the conventional wisdom that arbitrators render “split the baby” decisions. Although direct comparisons are difficult, we find that arbitrators generally perform at least as well as, but never …
Appraisal: Shareholder Remedy Or Litigation Arbitrage?, Randall S. Thomas, Wei Jiang, Tao Li, Danqing Mei
Appraisal: Shareholder Remedy Or Litigation Arbitrage?, Randall S. Thomas, Wei Jiang, Tao Li, Danqing Mei
Vanderbilt Law School Faculty Publications
We present the first large-sample empirical study of the recent trends in the ap- praisal remedy-the right of shareholders of companies completing an eligible merger to petition the court for an improved price for their shares. Appraisal petitions have increased markedly over our sample from 2000 to 2014, and the composition of those bringing these suits has shifted from individual sharehold- ers toward specialized hedge funds. Appraisal petitions are more likely to be filed against mergers with perceived conflicts of interest, including going-private deals, minority squeeze outs, and acquisitions with low premiums, which makes them a potentially important governance mechanism. …
Pricing Lives For Corporate And Governmental Risk Decisions, W. Kip Viscusi
Pricing Lives For Corporate And Governmental Risk Decisions, W. Kip Viscusi
Vanderbilt Law School Faculty Publications
The 2014 GM ignition-switch recall highlighted the inadequacies of the company's safety culture and the shortcomings of regulatory sanctions. The company's inattention to systematic thinking about product safety can be traced to the hostile treatment of corporate risk analyses by the courts. This Article proposes that companies should place a greater value on lives at risk than they have in previous risk analyses and that they should receive legal protections for product risk analyses. Companies' valuations of fatality risks and regulatory penalties have priced lives too low. The guidance provided by the value of a statistical life, which is currently …
Arbitration Clauses In Ceo Employment Contracts: An Empirical And Theoretical Analysis, Randall Thomas, Kenneth J. Martin, Erin O'Connor
Arbitration Clauses In Ceo Employment Contracts: An Empirical And Theoretical Analysis, Randall Thomas, Kenneth J. Martin, Erin O'Connor
Vanderbilt Law School Faculty Publications
A bill currently pending in Congress would render unenforceable mandatory arbitration clauses in all employment contracts. Some perceive these provisions as employer efforts to deprive employees of important legal rights. Company CEOs are firm employees, and, unlike most other firm employees, they can actually negotiate their employment contracts, very often with attorney assistance. Moreover, many CEO employment contracts are publicly available, so they can be examined empirically. In this paper, we ask whether CEOs bargain to include binding arbitration provisions in their employment contracts. After exploring the theoretical arguments for and against including such provisions in these agreements, we use …
Misjudging, Chris Guthrie
Misjudging, Chris Guthrie
Vanderbilt Law School Faculty Publications
Judging is difficult. This is obviously so in cases where the law is unclear or the facts are uncertain. But even in those cases where the law is as clear as it can be, and where the relevant facts have been fully developed, judges might still have difficulty getting it right. Why do judges misjudge? Judges, I will argue, possess three sets of "blinders": informational blinders, cognitive blinders, and attitudinal blinders. These blinders make adjudication on the merits - by which I mean the accurate application of governing law to the facts of the case - difficult. This difficulty, in …
Blinking On The Bench: How Judges Decide Cases, Chris Guthrie, Andrew J. Wistrich
Blinking On The Bench: How Judges Decide Cases, Chris Guthrie, Andrew J. Wistrich
Vanderbilt Law School Faculty Publications
How do judges judge? Do they apply law to facts in a mechanical and deliberative way, as the formalists suggest they do, or do they rely on hunches and gut feelings, as the realists maintain? Debate has raged for decades, but researchers have offered little hard evidence in support of either model. Relying on empirical studies of judicial reasoning and decision making, we propose an entirely new model of judging that provides a more accurate explanation of judicial behavior. Our model accounts for the tendency of the human brain to make automatic, snap judgments, which are surprisingly accurate, but which …
Demand For A Jury Trial And The Selection Of Cases For Trial, Joni Hersch
Demand For A Jury Trial And The Selection Of Cases For Trial, Joni Hersch
Vanderbilt Law School Faculty Publications
This paper uses a unique data set to examine how parties in civil litigation choose whether to demand a jury trial or to waive this right and whether trial forum influences the probability of trial versus settlement. Plaintiffs are more likely to demand trial by jury when juries are relativety more favorable to plaintiffs in similar cases and jury trials are relatively less costly than bench trials. Cases in which jury trials are demanded are 5.5 percentage points more ikely to settle without a trial than cases in which jury trials are waived. This differential settlement rate by potential trial …
Anchoring, Information, Expertise, And Negotiation: New Insights From Meta-Analysis, Chris Guthrie, Dan Orr
Anchoring, Information, Expertise, And Negotiation: New Insights From Meta-Analysis, Chris Guthrie, Dan Orr
Vanderbilt Law School Faculty Publications
In this article, we conduct a meta-analysis of studies of simulated negotiations to explore the impact of an initial "anchor," typically an opening demand or offer, on negotiation outcomes. We find that anchoring has a significant impact on the deals that negotiators reach. We also explore whether negotiator experience and the information environment mitigate the influence of anchoring. We conclude by offering prescriptive advice, both "offensive" and "defensive," to negotiators.
Principles Of Influence In Negotiation, Chris Guthrie
Principles Of Influence In Negotiation, Chris Guthrie
Vanderbilt Law School Faculty Publications
Negotiation is often viewed as an alternative to adjudication. In fact, however, negotiation and adjudication may be more alike than different because each is a process of persuasion. Both in the courtroom and at the bargaining table, the lawyer's primary task is to persuade someone other than her own client that her client's positions, interests, and perspectives should be honored. Despite this apparent similarity, persuasion operates differently in adjudication and negotiation because the lawyer seeks to influence a different party in each process. In adjudication, the lawyer seeks primarily to persuade the judge or jury hearing the case. The judge …
Insights From Cognitive Psychology, Chris Guthrie
Insights From Cognitive Psychology, Chris Guthrie
Vanderbilt Law School Faculty Publications
My goal in this paper is to explore cognitive psychology's place in the dispute resolution field. To do so, I first look back and then look forward. Looking back, I identify the five insights from cognitive psychology that have had the biggest impact on my own dispute resolution teaching and scholarship. Looking forward, I identify my five hopes for the future of cognitive psychology in the dispute resolution field.
The Impact Of The Impact Bias On Negotiation, Chris Guthrie, David Sally
The Impact Of The Impact Bias On Negotiation, Chris Guthrie, David Sally
Vanderbilt Law School Faculty Publications
The theory of principled or problem-solving negotiation assumes that negotiators are able to identify their interests (or what they really want) in a negotiation. Recent research on effective forecasting calls this assumption into question. In this paper, which will appear in a forthcoming symposium issue of the Marquette Law Review devoted to the Emerging Interdisciplinary Canon of Negotiation, we explore the impact of this research on negotiation and lawyering.
Damages: Using A Case Study To Teach Law, Lawyering, And Dispute Resolution, Chris Guthrie
Damages: Using A Case Study To Teach Law, Lawyering, And Dispute Resolution, Chris Guthrie
Vanderbilt Law School Faculty Publications
Seven law school faculty members and one practicing attorney recently developed and taught a wholly new kind of law course based on an already published case study, Damages: One Family's Legal Struggles in the World of Medicine, by Barry Werth, an investigative reporter who spent several years researching to write the book. Damages, an in-depth account of a medical malpractice case, presents the perspectives of the injured family, the defendant physician, the lawyers, and the three mediators. In this Symposium Introduction, the authors provide a summary of Werth's book, explain why they decided to create a course based on his …
Understanding Settlement In Damages (And Beyond), Chris Guthrie
Understanding Settlement In Damages (And Beyond), Chris Guthrie
Vanderbilt Law School Faculty Publications
For all of the ways in which the Sabia case is extraordinary, its outcome--settlement--is decidedly ordinary. In most civil litigation, as in the Sabias' litigation against Dr. Maryellen Humes and Norwalk Hospital, "[s]ettlement is where the action is." Roughly two-thirds of all cases settle (and most of the rest are resolved through motions). Why do most cases settle? Given the costs, delay, and unpleasantness of the litigation process, why do any cases go to trial? To address these questions--that is, to explain why most cases settle as well as why some cases "fail" to settle and result in trial--legal academics …
Panacea Or Pandora's Box?: The Costs Of Options In Negotiation, Chris Guthrie
Panacea Or Pandora's Box?: The Costs Of Options In Negotiation, Chris Guthrie
Vanderbilt Law School Faculty Publications
The prescriptive literature on negotiation advises negotiators to generate, evaluate, and select from multiple options at the bargaining table. At first glance, this "option-generation prescription" seems unassailable. After all, negotiators can include in their agreements only those options that they actually consider, so the more options they consider, the more likely it seems they will reach an agreement that maximizes their preferences. Upon closer inspection, however, the option-generation prescription begins to appear vulnerable, for it rests on a questionable premise about negotiator behavior. The option-generation prescription assumes that negotiators will make rational decisions when selecting from multiple options; regardless of …
Procedural Justice Research And The Paucity Of Trials, Chris Guthrie
Procedural Justice Research And The Paucity Of Trials, Chris Guthrie
Vanderbilt Law School Faculty Publications
Professor Deborah Hensler tells an important cautionary tale about mandatory mediation in her thoughtful and provocative contribution to this volume. In Suppose It's Not True: Challenging Mediation Ideology, Hensler observes that courts are now requiring litigants to mediate civil cases "on the grounds that litigants prefer [mediation] to traditional litigation," yet there is "a long line of social psychological research on individuals' evaluations of different dispute resolution procedures" consistent with the "idea that litigants might prefer adversarial litigation and adjudication" to mediation.' Hensler acknowledges that "some experimental research has found that subjects prefer mediation," but she argues that "the empirical …
Punitive Damages: How Jurors Fail To Promote Efficiency, W. Kip Viscusi
Punitive Damages: How Jurors Fail To Promote Efficiency, W. Kip Viscusi
Vanderbilt Law School Faculty Publications
Evidence of corporate risk-cost balancing often leads to inefficient punitive damages awards, suggesting that jurors fail to base their decision making on principles of economic efficiency. In this Article, Professor Viscusi presents the results of two experiments regarding jury behavior and punitive damages. In the first experiment, Professor Viscusi found that mock jurors punish companies for balancing risk against cost, although award levels vary depending on how the economic analysis is presented at trial. The results of the second experiment suggested that mock jurors are unwilling or unable to follow a set of model jury instructions designed to generate efficient …
The Lawyer's Philosophical Map And The Disputant's Perceptual Map: Impediments To Facilitative Mediation And Lawyering, Chris Guthrie
The Lawyer's Philosophical Map And The Disputant's Perceptual Map: Impediments To Facilitative Mediation And Lawyering, Chris Guthrie
Vanderbilt Law School Faculty Publications
Riskin's categorization of mediation has engendered much debate among academics and practitioners. Although most in the mediation community accept Riskin's positive assertion that mediation as currently practiced includes both facilitation and evaluation, a vocal group of purist critics rejects Riskin's pluralist view of mediation on normative grounds. These purist critics -- including such prominent mediator-scholars as Professors Kim Kovach, Lela Love," and Josh Stulberg -- argue that mediation is in fact, and should be, solely a facilitative process "designed to capture the parties' insights, imagination, and ideas that help them to participate in identifying and shaping their preferred outcomes." For …
Framing Frivolous Litigation: A Psychological Theory, Chris Guthrie
Framing Frivolous Litigation: A Psychological Theory, Chris Guthrie
Vanderbilt Law School Faculty Publications
This Article uses an often-overlooked component of prospect theory to develop a positive theory of frivolous or low-probability litigation. The proposed Frivolous Framing Theory posits that the decision frame in frivolous litigation induces risk-seeking behavior in plaintiffs and risk averse behavior in defendants. Because plaintiffs in frivolous litigation have a greater tolerance for risk than the defendants they have sued, plaintiffs in frivolous litigation have "psychological leverage" in settlement negotiations, which is likely to lead to plaintiff-friendly settlements or bargaining impasse. This in turn, suggests that reformers concerned about frivolous litigation should target reform efforts at plaintiffs' decisionmaking in frivolous …
Using Bargaining For Advantage In Law School Negotiation Courses, Chris Guthrie
Using Bargaining For Advantage In Law School Negotiation Courses, Chris Guthrie
Vanderbilt Law School Faculty Publications
Options, options, options ....The Negotiation literature-at least the "problem-solving" or "interestbased" or "principled" negotiation literature'repeats this mantra over and over and over. It seems self-evident that having lots of options is a good idea because more options means more to choose from. The more options there are to choose from, however, the more difficult choosing can be. Options, in short, may increase the likelihood that one will make an optimal decision, but they impose added "decision costs" on the decision maker. Law professors now face this happy dilemma when choosing materials for their Negotiation courses. Options abound-including the negotiation chapters …
Better Settle Than Sorry: The Regret Aversion Theory Of Litigation Behavior, Chris Guthrie
Better Settle Than Sorry: The Regret Aversion Theory Of Litigation Behavior, Chris Guthrie
Vanderbilt Law School Faculty Publications
Legal scholars have developed two dominant theories of litigation behavior: the Economic Theory of Suit and Settlement,which is based on expected utility theory, and the Framing Theory of Litigation, which is based on prospect theory. While Professor Guthrie acknowledges the explanatory power of these theories, he argues that they are flawed because they portray litigants solely as calculating creatures. These theories disregard any role emotion might play in litigation decision making. Guthrie proposes a mplementary theory-the Regret Aversion Theory of Litigation Behavior-that views litigants as both calculating and emotional creatures. With roots in economics, cognitive psychology, and social psychology, the …
A "Party Satisfaction" Perspective On A Comprehensive Mediation Statute, Chris Guthrie, James Levine
A "Party Satisfaction" Perspective On A Comprehensive Mediation Statute, Chris Guthrie, James Levine
Vanderbilt Law School Faculty Publications
During the past fifteen years, the alternative dispute resolution movement has greatly altered the legal landscape. Courts, legislatures and administrative agencies have enacted more than 2000 laws dealing with mediation and other dispute resolution processes. The National Conference of Commissioners on Uniform State Laws (NCCUSL) and the American Bar Association Section of Dispute Resolution have recently formed a unique partnership to assess whether a model or uniform mediation statute might remedy some of the problems caused by the current patchwork of often confusing and conflicting mediation laws. The task of drafting a comprehensive mediation statute poses many challenges. The drafters …
Psychology, Economics, And Settlement: A New Look At The Role Of The Lawyer, Chris Guthrie, Russell Korobkin
Psychology, Economics, And Settlement: A New Look At The Role Of The Lawyer, Chris Guthrie, Russell Korobkin
Vanderbilt Law School Faculty Publications
Law and economics models of litigation settlement, based on the behavioral assumptions of rational choice theory, ignore the many psychological reasons that settlement negotiations can fail, yet they accurately predict that vast majority of lawsuits will settle short of formal adjudication. What explains this? We present experimental data that suggests lawyers might evaluate the settlement vs. adjudication decision from a perspective more closely akin to "rational choice theory" than will non-lawyers and, consequently, increase the observed level of settlement. We then evaluate whether the hypothesized difference between lawyers and non-lawyers is likely to lead to more efficient dispute resolution, concluding …
Thinking Of Mediation As A Complex Adaptive System, J.B. Ruhl
Thinking Of Mediation As A Complex Adaptive System, J.B. Ruhl
Vanderbilt Law School Faculty Publications
This article uses my work on complex adaptive systems to think about how litigation and mediation differ in terms of adaptive qualities, suggesting that mediation is indeed a more adaptive mode of dispute resolution in certain contexts.
Psychological Barriers To Litigation Settlement: An Experimental Approach, Chris Guthrie, Russell Korobkin
Psychological Barriers To Litigation Settlement: An Experimental Approach, Chris Guthrie, Russell Korobkin
Vanderbilt Law School Faculty Publications
The traditional economic model of settlement breakdown -- as developed by Priest and Klein -- provides an important first step in understanding why some lawsuits settle and others go to trial. Rational miscalculation undoubtedly pushes some litigants into court who might otherwise reach out-of-court settlement. Absent miscalculation, however, some litigants still find themselves in court. We have presented experimental evidence suggesting that these litigants may proceed to trial because psychological barriers to value maximizing behavior impede their settlement efforts. Indeed, our research empirically grounds the hypothesis that psychological barriers are powerful causal agents of trials. The usefulness of this evidence …
Opening Offers And Out-Of-Court Settlement: A Little Moderation May Not Go A Long Way, Chris Guthrie, Russell Korobkin
Opening Offers And Out-Of-Court Settlement: A Little Moderation May Not Go A Long Way, Chris Guthrie, Russell Korobkin
Vanderbilt Law School Faculty Publications
When two litigants resolve a dispute through out-of-court settlement rather than trial, they realize joint gains of trade equal to the sum of the costs both parties would have incurred had they obtained a trial judgment minus the costs they incur reaching settlement. This opportunity for mutual gain causes most civil lawsuits to settle out-of-court. Yet, in spite of the opportunity for joint gain, negotiations fail in a significant number of lawsuits. One reason for this surprising result is that even when joint gains are substantial and obvious to the litigants, they still must agree on a method of dividing …
Product Liability Litigation With Risk Averson, W. Kip Viscusi
Product Liability Litigation With Risk Averson, W. Kip Viscusi
Vanderbilt Law School Faculty Publications
The recent law and economics literature has directed much energy toward identifying the various factors that determine whether parties will litigate or settle accident claims.' The substantive interest in this area rests in large measure on the obvious element of conflict in all these cases: the plaintiff is trying to obtain reimbursement for his losses from the defendant, which the defendant wishes to avoid paying. The strategic structure of their interaction is quite complex because the outcomes of bringing claims are heavily influenced by the costs, usually substantial, of both bargaining and litigating. The game between plaintiff and defendant is …