A Simple Theory of Complex Valuation

Anthony J. Casey

University of Chicago Law School

Julia Ann Simon-Kerr

University of Connecticut School of Law

August 15, 2013

113 Michigan Law Review 1175 (2015)

Complex valuations of assets, companies, government programs, damages, and the like cannot be done without expertise, yet judges routinely pick an arbitrary value that falls somewhere between the extreme numbers suggested by competing experts. This creates costly uncertainty and undermines the legitimacy of the court. Proposals to remedy this well-recognized difficulty have
become increasingly convoluted. As a result, no solution has been effectively adopted and the problem persists. This Article suggests that the valuation dilemma stems from a misconception of the inquiry involved. Courts have treated valuation as its own special type of inquiry distinct from traditional fact-finding. We show that reintroducing fundamental principles of fact-finding can provide a simpler and more accurate method of complex valuation.

Our conclusion rests on the premise that valuations are nothing more than exercises in routine fact-finding. Valuation is not an ethereal question with no right answer. Rather, valuation is a process of inferring the value that a relevant community places on an asset. This basic point has been ignored in practice and received almost no attention in the academy. Recognizing this foundational point can both restore the legitimacy of the process and reduce the costs of uncertainty and biased testimony. We demonstrate that a return to traditional evidentiary rules, including attention to burdens of proof, will discourage courts from resorting to ad hoc calculations and will encourage courts to arrive at valuations through vetted methodologies that are shown to be reasonably accurate and, most importantly, supported by the record. We further show that this will lead to an improvement in the quality of information provided by expert witnesses.

Number of Pages in PDF File: 44

Keywords: evidence, civil procedure, bankruptcy, tax, valuation, experts, tort, judicial behavior

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Date posted: August 16, 2013 ; Last revised: June 19, 2015

Suggested Citation

Casey, Anthony J. and Simon-Kerr, Julia Ann, A Simple Theory of Complex Valuation (August 15, 2013). 113 Michigan Law Review 1175 (2015). Available at SSRN: http://ssrn.com/abstract=2310650 or http://dx.doi.org/10.2139/ssrn.2310650

Contact Information

Anthony Joseph Casey
University of Chicago Law School ( email )
1111 E. 60th St.
Chicago, IL 60637
United States
773.702.9578 (Phone)
HOME PAGE: http://www.law.uchicago.edu/faculty/casey
Julia Ann Simon-Kerr (Contact Author)
University of Connecticut School of Law ( email )
65 Elizabeth Street
Hartford, CT 06105
United States
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