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    Ex Ante Selection of Disputes for Litigation

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    Full-text available at SSRN. See link in this record. (18.75Kb)
    Issue Date
    2004
    Author
    Drahozal, Christopher R.
    Type
    Article
    Version
    http://ssrn.com/abstract=510162
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    Abstract
    While selection effects have important implications for empirical studies of the litigation process, existing theories of case selection are incomplete. Existing theories focus on "ex post selection" - selection resulting from choices made by parties after a dispute arises, such as by settlement or jury trial demands. But parties also engage in "ex ante selection" - selection resulting from choices made before a dispute arises. A common form of ex ante selection occurs when parties include a pre-dispute arbitration clause in their contract, agreeing to have future disputes resolved in arbitration rather than in court. This paper develops a theory of ex ante selection of disputes for litigation, and examines implications of the theory for empirical studies of litigation. Studies comparing outcomes in arbitration and litigation provide evidence that ex ante selection occurs. This paper argues that the effects of ex ante selection are not limited to such studies, but also may affect studies that examine only the litigation process. The central intuition is that the disputes for which litigation is most likely to be problematic (and thus of interest to researchers) are the very disputes most likely to end up in arbitration. When parties expect litigation to be costly or damage awards excessive, they have an incentive to provide for arbitration to resolve future disputes. Such ex ante selection may mask characteristics of the litigation process that empirical studies are seeking to examine.
    Description
    Full-text available at SSRN. See link in this record.
    URI
    http://hdl.handle.net/1808/11258
    Collections
    • Law School Scholarly Works [621]
    • Distinguished Professors Scholarly Works [918]
    Citation
    Christopher R. Drahozal, Ex Ante Selection of Disputes for Litigation (February 27, 2004) (unpublished article) (available at SSRN).

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    Contact KU ScholarWorks
    785-864-8983
    KU Libraries
    1425 Jayhawk Blvd
    Lawrence, KS 66045
    785-864-8983

    KU Libraries
    1425 Jayhawk Blvd
    Lawrence, KS 66045
    Image Credits
     

     

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