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University of Michigan Law School




My aim in this paper is to examine the incentive effects of the proposed legislation, and the general desirability of nondiscretionary penalties as a method of controlling frivolous litigation. The proposed rule, which I will refer to below as the Modified British Rule, bears a close resemblance to Rule 68 of the Federal Rules of Civil Procedure. Rule 68 imposes court costs on the plaintiff who rejects a settlement offer and then receives a less favorable judgment. While Rule 68 is a nondiscretionary one-way penalty, the Modified British Rule is a nondiscretionary two-way penalty.

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