The Legal Regulation of Self-Serving Bias

Farnsworth, Ward

doi:10.2139/ssrn.316628

Cited by 11 publications

(6 citation statements)

References 26 publications

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“…Misperception is not so rarely driven by interest. This is what is meant by the term self-serving bias (FARNSWORTH [2003]). …”

Section: C) Conflicts Resulting From Other Human Behavioural Programsmentioning

confidence: 98%

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Causes and Management of Conflicts

Engel

2003

JITE

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“…Misperception is not so rarely driven by interest. This is what is meant by the term self-serving bias (FARNSWORTH [2003]). …”

Section: C) Conflicts Resulting From Other Human Behavioural Programsmentioning

confidence: 98%

“…In that case, neutral or superior outsiders help negotiations getting off the ground (FOERSTE [2000]). And if conflict originates in one or both parties being biased, the third party might help debias them (FARNSWORTH [2003]). …”

Section: Institutions Managing Conflictmentioning

confidence: 99%

Causes and Management of Conflicts

Engel

2003

JITE

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“…Availability biases often are compounded by the operation of self-serving biases, a loose collection of biases 'driven by a common human tendency to interpret the world to make Northern Ireland Legal Quarterly 69(2) it square more comfortably with one's own interests and beliefs'. 86 Thus, individuals tend to ascribe too much weight to the contributions they make to particular outcomes (egocentric bias); 87 have excessive confidence in their own forecasts (over-confidence bias); 88 and believe their own risk of experiencing a negative outcome is lower than it actually is (optimism bias). 89 Optimism bias is particularly important given its powerful effects and pervasiveness.…”

Section: Optimism Biasmentioning

confidence: 99%

Do constructive trusts deter disloyalty?

Hicks

2018

NILQ

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Constructive trusts of disloyal fiduciary gain often are justified by the argument of deterrence. For there to be effective deterrence, two conditions must be satisfied: first, potentially disloyal fiduciaries must be sufficiently informed, directly or indirectly, of the properties of the constructive trust; secondly, fiduciaries must respond by accurately weighing the costs/benefits of disloyalty and other options before choosing the option that maximises their self-interest. Typically, one or both of these conditions will not be satisfied. Drawing upon insights from the behavioural sciences we find that fiduciaries contemplating disloyalty generally cannot be expected to be cognisant of the properties of the constructive trust and therefore cannot be influenced by them. Even when known, such properties will not necessarily influence fiduciary behaviour due to the way well-informed fiduciaries are likely to perceive and process the risk that their disloyalty will be detected. The deterrence gains generated by the recognition of a constructive trust are therefore likely to be negligible.

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“…" 200 This bias can manifest itself in several ways, including "a tendency for people to see themselves as having a greater than average share of some desirable quality" or "skewed predictions; that which is desired is thought more likely to occur than that which is undesired." 201 Applied to the litigation context, self-serving bias suggests that "litigants, their lawyers, and other stakeholders might overestimate their own abilities, the quality of their advocacy, and the relative merits of the positions they are advocating." 202 In the litigation context, egocentrism is most commonly applied to explain settlement failures, 203 but it also suggests that each defendant will over-value the strength of its own defense and each defense attorney will over-value her own abilities and strategies.…”

Section: Self-serving Biasmentioning

confidence: 99%

Aggregating Defendants

Reilly

2013

SSRN Journal

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No procedural topic has garnered more attention in the past fifty years than the class action and aggregation of plaintiffs. Yet, almost nothing has been written about aggregating defendants. This topic is of increasing importance. Recent efforts by patent "trolls" and Bit-Torrent copyright plaintiffs to aggregate unrelated defendants for similar but independent acts of infringement have provoked strong opposition from defendants, courts, and even Congress. The visceral resistance to defendant aggregation is puzzling. The aggregation of similarly situated plaintiffs is seen as creating benefits for both plaintiffs and the judicial system. The benefits that justify plaintiff aggregation also seem to exist for defendant aggregation-avoiding duplicative litigation, making feasible negative-value claims/defenses, and allowing the aggregated parties to mimic the non-aggregated party's inherent ability to spread costs. If so, why is there such resistance to defendant aggregation? Perhaps, contrary to theoretical predictions, defendant aggregation is against defendants' self-interest. This may be true in certain types of cases, particularly where the plaintiff's claims would not be viable individually, but does not apply to other types of cases, particularly where the defendants' defenses would not be viable individually. These latter cases are explained, if at all, by defendants' cognitive limitations. In any event, defendant selfinterest does not justify systemic resistance to defendant aggregation. Likewise, systemic resistance is not warranted because of concerns of weak claims or unsympathetic plaintiffs, the self-interest of individual judges handling aggregated cases, or capture by defendant interests. This Article proposes that to obtain the systemic benefits of defendant aggregation and overcome the obstacles created by defendant and judicial self-interest, cognitive limitations, and capture, defendant aggregation procedures should use non-representative actions, provide centralized neutral control over aggregation, and limit aggregation to common issues. This Article concludes with a modified procedure to implement these principles: interdistrict related case coordination.

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The Legal Regulation of Self-Serving Bias

Cited by 11 publications

References 26 publications

Causes and Management of Conflicts

Causes and Management of Conflicts

Do constructive trusts deter disloyalty?

Aggregating Defendants

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