By Ray Campbell. 114 Penn St. L. Rev. ___. *(forthcoming in Iqbal Symposium Issue)
This author welcomes responses to this abstract and the upcoming article. The author may be contacted at:
- E-mail: rwc14@psu.edu
- Phone: (814) 867-2235
Abstract:
This article looks at how the high cost of discovery has impacted access to the courts. Surveying and synthesizing game theoretical and real options based analyses of pleading and settlement, the article identifies the possibility for plaintiffs to extract settlements based on litigation cost arbitrage, especially in multi-defendant settings where a claim against a given defendant would be of negative expected value standing alone but not necessarily in the context of a suit that will proceed with or without that defendant. The article also examines the information asymmetries that make meeting strict pleading standards against all potential defendants at the outset unrealistic even when there is a meritorious claim. The article proposes a regime of permissive pleading followed by a strictly defined exchange of information designed to mitigate information asymmetries, followed by a somewhat more restrictive secondary pleading before all out discovery begins.