Can Simple Mechanism Design Results Be Used to Implement the Proportionality Standard in Discovery? Comment

Journal of Institutional and Theoretical Economics, 172 (2016)

Harvard Law School John M. Olin Center Discussion Paper No. 862

6 Pages Posted: 11 Jun 2016

Date Written: June 8, 2016

Abstract

In this comment on Gelbach (JITE 2016), I make two points. First, I support Gelbach’s application of mechanism design (MD) to legal design because it takes information requirements and other constraints seriously. MD derives the best rule under the stated constraints. This rigorously confirms the existing rule’s optimality, reveals a superior alternative, or, if the MD solution appears unrealistic, uncovers additional constraints that any real solution must satisfy. Second, I consider implementing the social optimum, rather than the private optimum. In Gelbach’s discovery example, even a court with limited information can objectively implement some social goals; for other social goals, the court can at least do the best it can according to its subjective beliefs.

Keywords: Civil litigation, courts, discovery, pre-trial, Federal Rule of Civil Procedure 26, information, Coase theorem, efficiency, mechanism design, auction theory, transaction costs, pre-discovery settlement, social norms, Nirvana mechanism

JEL Classification: D82, K41

Suggested Citation

Spamann, Holger, Can Simple Mechanism Design Results Be Used to Implement the Proportionality Standard in Discovery? Comment (June 8, 2016). Journal of Institutional and Theoretical Economics, 172 (2016) , Harvard Law School John M. Olin Center Discussion Paper No. 862, Available at SSRN: https://ssrn.com/abstract=2792316

Holger Spamann (Contact Author)

Harvard Law School ( email )

Cambridge, MA 02138
United States

ECGI ( email )

c/o the Royal Academies of Belgium
Rue Ducale 1 Hertogsstraat
1000 Brussels
Belgium

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