Lewis Kornhauser

• New York University

This article generalizes the analysis of settlement under joint and several liability from lawsuits involving one plaintiff and two defendants to those involving n ≥ 2 defendants. We demonstrate that, depending upon the correlation of outcomes among the defendants, but regardless of the distribution of liability shares, joint and several liability...

We discuss a central question in the study of courts: What do judges want? We suggest three different domains that might serve as the basic preferences of a judge: case dispositions and rules, caseloads and case mixes, and social consequences. We emphasize preferences over dispositions on the grounds of plausibility and tractability. We then identi...

We study claim resolution. A claim consists of a global fact and a local fact. The global fact is observed by the principal and the agent. The local fact is observed by the agent alone. The agent resolves the claim; the principal decides whether the agent is more likely wrong or right. The principal and agent can disagree about the weight to accord...

This article suggests an alternative way of thinking about the role of law at the time of divorce. It is concerned primarily with the impact of the legal system on negotiations and bargaining that occur outside the courtroom. One sees the primary function of contemporary divorce law not as imposing order from above, but rather as providing a framew...

“I would prefer not” H ERMAN M ELVILLE , B ARTLEBY THE S CRIVENER : A S TORY OF W ALL S TREET (1853), reprinted in T HE P IAZZA T ALES 32, 48 (London, Sampson Low, Son & Co. 1856). Scholars have recently challenged the claim in classical deterrence theory that law influences behavior only through the expected sanction imposed. Some go further and...

Many appellate courts and regulatory commissions simultaneously produce case dispositions and rules rationalizing the dispositions. We explore the properties of the American practice for doing this. We show that the median judge is pivotal over case dispositions, although she and others may not vote sincerely. Strategic dispositional voting is more...

The practice of horizontal stare decisis requires that judges occasionally decide cases “incorrectly.” What sustains this practice? Given a heterogeneous bench, we show that the increasing differences in dispositional value property of preferences generates gains when judges trade dispositions over the case‐space. These gains are fully realized by...

This essay reviews Epstein, Landes, and Posner’s The Behavior of Federal Judges: A Theoretical and Empirical Study of Rational Choice. Their book systematically asks how the role of ideology varies across the tiers of the federal judicial hierarchy. A major finding is that the impact of ideology increases from the bottom to the top of the judicial...

This essay argues that the doctrinal concept of law is unnecessary. Traditional accounts of the concept of law hold that public officials and citizens undertake a two-step protocol in their practical reasoning. Each first determines what the law requires and then assesses whether her other reasons for actions dictate a different decision. One can,...

This chapter surveys the economic literature on the functions and structure of courts. Issues concerning appellate courts and collegiality are addressed in a companion chapter. JEL classification: K4

This chapter surveys the economic literature on judicial appeals and collegiality of courts. More general issues concerning judicial administration and court organization are surveyed in a companion chapter. JEL classification: K4

In a representative democracy, citizens do not vote directly over assemblies but instead for individual candidates, who then constitute the assembly that enacts the legislative program. This complicates our ability to define what is meant by sincere voting, which can be divided into two concepts: expressive and simple voting. We present the results...

Courts have traditionally limited judicially approved settlements to compensatory or single damages even in class actions based in Federal civil antitrust law where trebling of damages is mandatory upon a finding of liability. This paper analyzes the effects of such settlement caps for both single and multiple defendants and shows such caps: (1) re...

In many, if not most, elections, several different seats must be filled, so that a group of candidates, or an assembly, is selected. Typically in these elections, voters cast their ballots on a seat-by-seat basis. We show that these seat-by-seat procedures are efficient only under extreme conditions.

Empirical studies of collegial courts typically analyze the dispositional votes of judges. Theoretical models of collegial courts, by contrast, typically assume that judges care about, and choose, policies. In this paper, we use data on the behavior of justices of the Supreme Court of the United States (from the Spaeth Supreme Court Database, 1953-...

We present a formal game theoretic model of adjudication by a collegial court. The model incorporates dispute resolution as well as judicial policy making and indicates the relationship between the two. It explicitly addresses joins, concurrences and dissents, and assumes 'judicial' rather than legislative or electoral objectives by the actors. The...

Contract law and the economics of contract have, for the most part, developed independently of each other. In this essay, we briefly review the notion of a contract from the perspective of lawyer, and then use this framework to organize the economics literature on contract. The review thus provides an overview of the literature for economists who ar...

We present a formal game theoretic model of adjudication by a collegial court. The model incorporates dispute resolution as well as judicial policy making and indicates the relationship between the two. It explicitly addresses joins, concurrences and dissents, and assumes 'judicial' rather than legislative or electoral objectives by the actors. The...

Models constitute a central element in the methodology of economic analysis of law. John Brown's model of accident law and others’ models of settlement and litigation, for instance, have provided numerous insights into tort law and to civil procedure respectively. Other models have been less successful. Despite their ubiquity, however, the role of...

We present a formal game theoretic model of adjudication by a collegial court. Distinctively, the model incorporates dispute resolution as well as judicial policy making and indicates the relationship between the two. It explicitly addresses joins, concurrences and dissents, and assumes judicial rather than legislative or electoral objectives by th...

IntroductionA Characterization of Economic Analysis of LawNormativityPreference and ObligationConcluding RemarksNoteReferences

Analyses of complex entities such as bureaucracies, courts, legislatures, and firms typically personify them. A strong conception of personification requires that these entities have rational interests, rational (factual) beliefs, and rational normative judgments. On one account of personification, such personified rationality should be aggregate r...

Many analyses of courts within the economic analysis of law are indistinguishable from those produced by positive political theorists; they consider how judges control, exploit, or resolve conflicts of interest among judges. This article considers three contributions by economic analysts of law outside this common, positive, political theoretic mod...

This article generalizes the analysis of settlement under joint and several liability from lawsuits involving one plaintiff and two defendants to those involving n ≥ 2 defendants. We demonstrate that, depending upon the correlation of outcomes among the defendants, but regardless of the distribution of liability shares, joint and several liability...

Social choice theory understands a voting rule as a mapping from preferences over possible outcomes to a specific choice or choices. However, actual election procedures often do not have this structure. Rather, in a typical election, although the outcome is an assembly comprising several people occupying different seats, voters cast their ballots f...

This paper compares the effects of joint and several liability on capital and production decisions with the effects of several-only liability in the context of hazardous-waste generation. Our main result shows that increased potential liability causes firms to decrease asset exposure but may also lead firms to create less waste. First, we find that...

This paper compares, in the context of hazardous waste generation, the effects of joint and several liability on capital and production decisions to the effects of several only liability. Our main result shows that increased potential liability causes firms to decrease asset exposure, but may also lead firms to create less waste. First, we find tha...

The previous essay elaborated on the theme of compliance in a judicial hierarchy. This essay pulls back to ask broader questions about judicial hierarchies that inquire into the logic of hierarchies as ways of minimizing and correcting errors. Three models are developed. The first approaches the question from a "macro" perspective of the adjudicato...

CEO compensation varies widely, even within industries. In this paper, we investigate whether differences in skill explain these differences in CEO pay. Using the notion that skilled CEOs are more likely to continue prior good performance and to reverse prior poor performance, we develop a new methodology to detect if skill is related to pay. We fi...

In this paper, we extend the analysis of the consequences of litigant selection on the structure of judicial hierarchies to environments in which litigants may have asymmetric information about the merits of the case.. In a prior paper, we constructed a simple model in which, after trial, litigants were fully informed about the merits of the case;...

This paper extends the analysis of the structure of judicial hierarchies to environments in which litigants may have asymmetric information about the merits of the case. We identify equilibria in which the error rate is zero. In each equilibrium, at least one of the inferior courts does not decide cases on the basis of its prior beliefs. Rather, in...

We examine a long-standing research program in empirical Political Science, fact-pattern analysis (FPA). We connect FPA to definitions of legal rules in jurisprudence and positive political theory. Foundationally, theoretical treatments view rules as functions partitioning case spaces into equivalence classes. Connecting FPA to formal theory has tw...

There is a family of views that converge on the idea that the rational connection between reasons and actions that would be ideal in the case of an individual is also the appropriate ideal for political communities. Ideally, on this account, both should possess and be guided by a coherent set of beliefs and values. Dworkin, whose views fall within...

Fairness versus Welfare evaluates the strategy of incorporation that Louis Kaplow and Steven Shavell use to defend the exclusive use of welfarist criteria in the evaluation of legal rules and institutions. The strategy of incorporation includes every concern that motivates the agent with the agent's preference ordering. More specifically, this exte...

We offer a selective survey of the uses of cooperative and non-cooperative game theory in the analysis of legal rules and institutions. In so doing, we illustrate some of the ways in which law influences behavior, analyze the mechanism design aspect of legal rules and institutions, and examine some of the difficulties in the use of game-theoretic c...

Constitutional political economy addresses four questions: (1) the causal question: What explains the constitutional institutions we observe? (2) the consequential question: What consequences do constitutional institutional have? (3) the ideal question: What constitutional institutions does justice require? and (4) the design question: What constit...

This essay evaluates the strategy of incorporation often adopted in welfarist evaluation of legal rules and institutions. The strategy of incorporation includes every concern that motivates the agent within the agent's preference ordering. More specifically, this extended preference ordering encompasses her concerns arising from deontological const...

This essay considers two problems in the justification of cost-benefit analysis. First, it argues that because cost-benefit analysis values policies, variation in imputed "values of life" are not, in theory, cause for concern. Second, it argues that the current framework of justification, which focuses on the moral justification of the formal theor...

This chapter compares the properties of joint and several liability with those of non-joint liability. It considers three criteria: deterrence, settlement inducing properties and fairness. The analysis is performed for both full and limited solvency. The central conclusion is that neither rule dominates the other. With respect to deterrence, the re...

Analyses of assembly elections often assume that voters have well-defined preferences over candidates, even though preferences over assemblies are the natural analytic starting point. This candidate-based approach is usually justified by an assumption that preferences over assemblies are separable. We show, however, that if preferences over assembl...

This paper provides a survey on studies that analyze the macroeconomic effects of intellectual property rights (IPR). The first part of this paper introduces different patent policy instruments and reviews their effects on R&D and economic growth. This part also discusses the distortionary effects and distributional consequences of IPR protection a...

We offer a selective survey of the uses of cooperative and non-cooperative game theory in the analysis of legal rules and institutions. In so doing, we illustrate some of the ways in which law influences behavior, analyze the mechanism design aspect of legal rules and institutions, and examine some of the difficulties in the use of game-theoretic c...

Analyses of assembly elections often assume that voters have well-defined preferences over candidates, even though preferences over assemblies are the natural analytic starting point. This candidate-based approach is usually justified by an assumption that preferences over assemblies are separable. We show that if preferences over assemblies are th...

Debt burden is routinely cited as the major force driving law school graduates to choose private practice over careers in government or other public-interest settings. In an effort to counter that force and level the playing field with regard to career choice many law schools have developed loan repayment assistance programs.

This Article explores a problem that may occur in appellate cases in which two or more issues present themselves. In these problematic cases, the court may reach a decision as to outcome in one of two ways, either by summing the votes of individual judges as to the outcome of the case overall or by summing the votes of individual judges on each of...

In this Article, Professors Kornhauser and Revesz study the settlement-inducing properties of the rules governing the litigation of claims involving multiple defendant& Most importantly, they show that the effects ofjoint and several liability on the choice between settlement and litigation depend on the correlation of the plaintiff's probabilities...

Citizens of a representative democracy are twice removed from legislation. First, they do not deliberate and vote directly on legislation. Rather they elect assemblies that enact such legislation in their stead. Second, and less commonly remarked, citizens do not vote directly for assemblies. Rather they vote for individual candidates, with the can...

This paper considers the choice between an all-or-nothing (AON) rule and a proportionate-damages (PD) rule in civil litigation. Under AON, a prevailing plaintiff receives a judgment equal to his entire damages. Under PD, damages are reduced to reflect uncertainty. For example, if the trier of fact finds that there is a 75 percent chance that the de...

This article presents an approach to selecting among the many subgame-perfect equilibria that exist in a standard concession game with complete information. The authors extend the description of a game to include a specific "irrational" (mixed) strategy for each player. Depending on the irrational strategies chosen, the authors demonstrate that thi...

By general agreement, the new economic analysis of law began with the near-simultaneous publication roughly 25 years ago of “The Problem of Social Cost” [1] and “Some Thoughts on Risk Distribution and the Law of Torts” [2]. Though no one doubts the subsequent flourishing of the endeavor, many question its significance, and most cannot articulate it...