Against Compromise: A Mechanism Design Approach

A risk-neutral plaintiff sues a risk-neutral defendant for damages that are normalized to one. The defendant knows whether she is liable or not, but the plaintiff does not. We ask what are the settlement procedures and fee-shifting rules (which, together, we call a mechanism) that minimize the rate of litigation subject to maintaining deterrence. Two main results are presented. The first is a characterization of an upper bound on the rate of settlement that is consistent with maintaining deterrence. This upper bound is shown to be independent of the litigants' litigation cost. It is shown that any mechanism that attains this bound must employ the English fee-shifting rule (according to which all litigation costs are shifted to the loser in the trial). The second result describes a simple practicable mechanism that attains this upper bound. We discuss our results in the context of recent legal reforms in the United States and United Kingdom. Copyright 2005, Oxford University Press.