Incentives to Settle Under Joint and Several Liability: An Empirical Analysis of Superfund Litigation
Stanford Law School, Olin Law & Economics Paper No. 169; U of Penn Law School, Law & Economics Paper No. 262; USC Law School, Olin Paper No. 99-1
42 Pages Posted: 3 May 1999
Date Written: March 1999
Congress may soon restrict joint and several liability for cleanup of contaminated sites under Superfund. We explore whether this change would discourage settlements and is therefore likely to increase the program's already high litigation costs. Recent theoretical research by Kornhauser and Revesz finds that joint and several liability may either encourage or discourage settlement, depending upon the correlation of outcomes at trial across defendants. We extend their two-defendant model to a richer framework with N defendants. This extension allows us to test the theoretical model empirically using data on Superfund litigation. We find that joint and several liability does not discourage settlements and may even encourage them. Our results support the model's predictions about the effects of several variables, such as the degree of correlation in trial outcomes.
Note: A revised version of this working paper is forthcoming in the Journal of Legal Studies, Vol. 29, No. 1, Part 1, January 2000
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