Adjudication Costs Research Articles

Random Selection for Scaling Standards, With Applications to Climate Change

Governments distributing funds among many claimants often fail to ensure that those similarly situated are treated similarly. This Article proposes a novel solution that would reduce both adjudication costs and adverse effects of idiosyncratic decisionmaking. Claimants to a fund would sell their claims to intermediaries, and a small number of claims would then be chosen at random for valuation in adjudication. The entire fund would be distributed to the intermediaries in proportion to their adjudicated valuations. Intermediaries will thus bid more for claims, the higher the valuations that they expect the claims to receive on average. This mechanism can enable the creation of administrative schemes that might be infeasible with a traditional administrative design, which cannot accommodate massive numbers of claims covering circumstances too heterogeneous to reduce to rules. The Article illustrates by describing several possible applications to climate change, including provision of compensation to those harmed by a carbon tax and distribution of a fund for energy efficient building upgrades. The mechanism can also be used to distribute a class action award to heterogeneous claimants. Like “statistical adjudication,” this mechanism requires adjudication of only a small number of claims, but it avoids the need for a centralized authority to extrapolate from these adjudicative results.

The Case for a Trial Fee: What Money Can Buy in Criminal Process

Money motivates and regulates criminal process. Conscious of adjudication costs, prosecutors incentivize guilty pleas with the prospect of a “trial penalty”—harsher post-trial sentences. Budgetary considerations motivate revenue-generating enforcement policies and asset forfeitures by law enforcement. States also charge defendants directly for nearly every criminal justice expense through mandatory fees, which can burden decisions to exercise rights. Additionally, defendants can pay for optional advantages. Right-to-counsel doctrine protects the right to pay for more and better legal assistance than the state is obligated to provide. Paying bail yields pretrial liberty. Diversion programs, for a fee, can supplant ordinary prosecution. Some defendants can choose their sentence—a fine or jail. But these opportunities are not available to all; their costs need not match one’s ability to pay. To examine roles and rules of money in criminal process, this paper considers the case for an optional criminal trial fee. Defendants who pay it would directly cover public litigation costs, which would leave the state indifferent, as a budgetary matter, between trials and guilty pleas. In return, defendants would get a penalty-free trial limited to the terms of a proffered plea bargain. The fee proves a useful device because its rationale and effects accord with entrenched precedents and policies, not least in how it extends the justice system’s differential treatment based on wealth. Yet the trial fee also promises positive effects. It would reduce prosecutors’ most-criticized bargaining tactics—excessively harsh trial penalties—without undermining bargaining’s important secondary functions, enlisting informants to cooperate and rewarding defendants who accept responsibility for their crimes. And even a modest increase in fee-financed trials would yield other benefits, such as citizen participation in applying criminal law and supervising government officials, and more data about “the shadow of trial” in which bargaining takes place

Ex-Post Enforcement in Cooperative Spectrum Sharing: A Case Study on the 1695-1710 Mhz

Ex-Post Enforcement in Cooperative Spectrum Sharing: A Case Study on the 1695-1710 Mhz

Special Issue on Practices and Resolution of Progress Payment Claims

Special Issue on Practices and Resolution of Progress Payment Claims

Ex-Post Enforcement in Spectrum Sharing

It seems inevitable that future wireless systems will include shared spectrum. Shared spectrum can be viewed as a rearrangement of rights among stakeholders that will require enforcement. Demsetz indicates that enforcement is a key factor of any property rights management and Shavell argues that the timing of the enforcement action (ex-ante or ex-post) plays an important role. The emphasis in commercial-government sharing in the US has been on ex ante measures. It has been posited that a system built on efficient ex post enforcement would reduce the opportunity cost of the ex ante measures. Determining the role of ex post enforcement in a spectrum sharing scheme is of significant importance since spectrum sharing will inevitably result in interference events. We propose to evaluate the role of ex post enforcement by modeling how an ex post only enforcement scheme might work, and what the limits are on its effectiveness. In particular, there are a number of factors to consider, including the cost and time of adjudication as well as how well the penalty is calibrated to the value of the communication. To examine the role of ex post enforcement in a spectrum sharing regime, we study an ex-post-only regime. To determine whether (and when) this approach is superior to an ex ante approach, we build a model of a geographic region with geographically distributed secondary users and a single primary user. Aggregate signal power of the secondary users will be ‘measured’ at the primary user’s antenna. The number of excluded secondary users will be determined based on an ex ante approach that uses exclusion zones. We will plot the opportunity cost of the exclusion zones for varying values of secondary user communications. To evaluate ex post enforcement, we posit an adjudication system that penalizes the secondary user for each interference event received at the PU’s antenna. The penalty would be proportional to the lost value of reception by the PU. The SU optimizes their transmissions so that the net value of a sequence of transmissions is positive. There are a number of phenomena that we study in this scenario. First, as the value for SU transmissions increase, s/he may find it valuable to risk higher interference penalty by transmitting closer to the PU’s antenna. This results in dynamic and self-determined “exclusion zones”. We can also model the income stream to the PU; at some point, it may be more valuable for the PU to collect interference penalties than to operate their system in that location. The above approach assumes that adjudication is immediate and costless. To determine the bounds of adjudication costs, we determine the cost level that would result in a region that is equivalent to an exclusion zone in ex ante enforcement. Having achieved that, we reason about the effectiveness of ex post enforcement system and their technical requirements. Ex post enforcement must play a role in practical spectrum sharing systems. Despite this, it is not a topic that has attracted much attention in the research literature, with the notable exception of the work by Sahai and his co-authors (see, for example [6]). In this paper, we examine the behavior of a pure ex post enforcement system and compare it to pure ex ante approaches. The results of this study will help researchers develop feasible approaches to adjudication and will help policymakers balance the use of ex ante and ex post enforcement techniques in spectrum sharing regimes.

The new Construction Act 2009: implications for building surveyors

PurposeThis paper aims to discuss forthcoming changes to the Housing Grants Regeneration and Construction Act 1996 following UK government consultation exercises. The paper seeks to examine five key areas of construction contract administration which will be affected should the proposed changes be included in new legislation.Design/methodology/approachThe approach of the paper is to conduct a literature review of the proposed changes.FindingsThe five key areas are: changes in requirement for contracts to be in writing; changes to interim payment decisions by third parties; so‐called “Tolent” clauses and matters concerning adjudication costs, cross contracts; and payment notices. The implications of how these changes might affect building surveyors are explored. The paper concludes that while some of the proposed changes are likely to be welcomed, other proposed changes throw up potential complex and difficult legal issues.Originality/valueIt is hoped that this paper will stimulate discussion between practitioners and academics about suitable reforms to adjudication and construction law issues in the UK.

On the Role of Inequalities in Legal Systems: A Tocquevilian View

The present paper proposes to interpret the differences in legal systems between common-law and civil-law nations as arising from the importance given to adjudication in comparison with statute laws. It focuses on the relative costs of legal change by adjudication (case law development) when compared with legislation (statutory law development). The main argument is that the public concern with equality is a major determinant of the relative cost of adjudication in a legal system. We develop a model of the legal process that illustrates Tocqueville's fundamental intuition with regard to the uniformity of legal rules, and as a consequences, the relative importance of adjudication and legislation.

The Demand for Public Adjudication and Private Arbitration

There are a number of seemingly unrelated puzzles in the institutional and administrative structure of our legal system, such as why do courts not charge parties the full cost of adjudication, why courts adopt a system of stare decisis in the nineteenth century, and why the government refuse to expand the number of property forms for certain assets, such as real property. This article looks comprehensively at how these features of our modern legal system work together to achieve the government's goal of maximizing the positive externalities of litigation, while relegating lower valued disputes to other means of dispute settlement.

Examining the Effects of Professional and General Liability Exposures and Related Adjudication Costs on a Multihospital System

This research effort provides a comprehensive picture of risk management at a number of hospitals included under a multihospital system located in the southeastern United States. Specifically, this project examines both professional liability and general liability experience at the respective facilities for a 5(1/2)-year period. A detailed analysis of the frequency, causes, location, and cost of liability exposures occurred. The results of this analysis strongly suggest that significant reforms in both the control of per-case liability cost exposures and in the method of calculating insurance premiums need to be considered.

Conflicts of Interest in Publicly-Traded and Closely-Held Corporations: A Comparative and Economic Analysis

Conflicts of interest in corporate law can be addressed by two main alternatives: a requirement of a majority of the minority vote or the imposition of duties of loyalty and fairness. A comparison of Delaware, the UK, Canada, and Israel reveals that while the conflicts of interest problem within publicly-traded corporations receives different treatment in the different jurisdictions — either a fairness rule or a majority of the minority rule — closely-held corporations receive the same treatment of an imposition of duties of loyalty and fairness. This article explains this finding, demonstrating that determining which of these rules is adopted is, in fact, a choice between liability rule protection and property rule protection. This choice depends on the total and relative transaction costs. These costs include both the negotiation costs attendant upon a property rule, as well as the adjudication costs associated with a liability rule. The sum of these costs is influenced by the efficacy of the judicial system and of extralegal mechanisms such as the market for corporate control, the capital market, and the types of investors active in the market. Because the different jurisdictions have different relative costs, due to differences in the economy and the legal systems, publicly-traded corporations are treated differently in each system. However, sometimes conflict of interest situations share the same main characteristics — as with closely-held corporations—leading to the domination of one solution, and thus the same solution is applied for closely-held corporations in the different jurisdictions.

Voting and the Economics of Corporate Self-Dealing: Theory Meets Reality

Self-dealing presents a major problem in corporate law. It finds its particular expression in everyday corporate actions and deals between corporations and their controlling parties, subsidiaries, directors, corporate officers, or any other entity in which shareholders may have an interest. Conflict of interests in the context of corporate law may be controlled by a variety of means, ranging from the absolute prohibition of self-dealing to the prohibition of voting with conflicting interests (the majority of the vote), the imposition of fairness duties, and non-interventionary approaches. Based on an economic analysis, the Article presents an innovative and comprehensive theory accounting for the problems inherent in self-dealing (i.e., conflict of interests). The theory enables the author to provide a unique presentation and evaluation of the relative efficiency of the solutions to the conflict of interests problem adopted by different corporate laws.The Article's analysis of the self-dealing problem is based on the novel theory that legal protections can be classified into or not only in the context of individual rights but also in the context of rights. Applying this theory to self-dealing transactions, in which the group is composed of the minority shareholders, the author demonstrates that each of the two most effective solutions to the self-dealing problem can be classified as either a property rule or a liability rule. The requirement of a majority-of-the-minority vote, which prevents any transaction from proceeding without the minority group's consent, can be defined as a property rule. The fairness test, which allows transactions to be imposed on an unwilling minority but ensures that the minority receives adequate compensation in objective market-value terms, can be defined as a liability rule.The choice between the two types of rules is a function of the total transaction costs in a particular legal system. These transaction costs include both the negotiation costs attendant upon a property rule, as well as the adjudication costs associated with a liability rule. The Article further reveals that the sum of transaction costs is influenced by the efficacy of the judicial system and of extra-legal mechanisms, such as the market for corporate control, the capital market, and the type of investors active in the market.An empirical survey and analysis of the regulation of self-dealing in several countries -- Delaware, United Kingdom, Canada, Germany, and Italy -- reveal and confirm the main theoretical claims of this Article. The Article arrives at three principal conclusions. First, corporate laws must incorporate some form of minority protection against self- dealing as a mandatory rule. Second, because of the transaction costs associated with each means of legal protection, there is no single efficient solution suitable for every jurisdiction; any solution chosen to cope with the self-dealing problem must take into account the relevant local conditions. Third, Delaware's rules governing self-dealing, which were believed to be indeterminate and opaque, are shown, for the first time, to be efficient and coherent.

THE POLICIES UNDERLAYING THE RULES OF ENFORCEMENT OF FOREIGN JUDGMENTS IN LIBYA: A COMPARATIVE STUDY.

We wish to know the value of a foreign judgment, that is, under what conditions and to what extent such a judgment will be effective.The answers to these questions depend upon a country's considerations and policies which determine to what extent it recognizes the foreign country's judgment. The major consideration is international transaction needs. For example, if a person sought enforcement of a judgment in many countries, lack of recognition of the foreign judgment by some of these countries would necessitate multiple law suits and as a consequence higher adjudication costs, the waste of time, and, in some cases, a conflict between judgments from country to country. All of this would disturb the frequency and stability of international transactions.