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Copyright (c) 1996 Southern California Law Review
University of Southern California

ARTICLE: GAINS, LOSSES, AND THE PSYCHOLOGY OF LITIGATION

November, 1996

Southern California Law Review

70 S. Cal. L. Rev. 113

Author

Jeffrey J. Rachlinski *

Excerpt





INTRODUCTION
 
Every litigant gambles. When they choose to file suit, take discovery, file motions, decline settlement offers, and appeal, they take chances. But when do litigants gamble and when do they take actions with more certain outcomes? Understanding litigants' proclivities for risk is essential to understanding their behavior, the nature of litigation, and the likely impact of changes in the civil justice system. Current theories of litigation fail to account for the possibility that litigants' decisionmaking under risk and uncertainty may not comport with rational theories of behavior, and they therefore fail to paint a complete portrait of litigation.

The dominant model of litigation today may be the economic model of suit and settlement. Over the past twenty-five years, the law and economics field has produced a fairly consistent model describing litigants' behavior. 1 Although this literature highlights the settlement process, 2 it also includes papers modeling other aspects of litigation, including discovery, 3 appeal, 4 and alternative dispute resolution. 5 Along with a growing complexity and scope, 6 this field has witnessed increasing influence in the public debate on litigation reform. For example, Congress recently considered imposing a "loser-pays" system for attorney's fees in all federal cases 7 - a reform long advocated in the law and economics literature. 8 Evaluated in terms of explanatory power, productivity, and influence, the law and economics of litigation has been a success. According to a review by Cooter and Rubinfeld, the field has flourished on the strength ...
 
 
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