Bruce L. Hay

Burdens of Proof in Civil Litigation: An Economic Perspective

Burden of proof rules, which require a specified party to produce evidence on a contested issue, are central to the adversary system. In this article, we model burden of proof rules as a device for minimizing the costs of litigation. The central point to emerge from the model is that, properly assigned, a burden of proof rule economizes on the transmission of information to the court. We use the model to explain characteristic practices of courts in assigning the burden of proof.

Contingent Fees and Agency Costs

In this article, I examine the operation of ordinary linear contingent fees in a model of litigation in which the recovery on a claim is a function of the lawyers efforts. My object here is to analyze the linear fee that maximizes the clients welfare in the presence of attorney moral hazard. I identify the optimal fee as the one that minimizes two agency costs: underinvestment in the claim, and attorney rents. I also attempt to identify how the optimal linear fee varies with different case characteristics.

Effort, Information, Settlement, Trial

Given the costs of litigation and the availability of pretrial discovery, the question arises why some cases fail to settle at any time in the pretrial period. To examine this problem, the article develops a model of litigation and settlement in which the efforts the parties invest in the case (1) partly determine the strength of the plaintiffs claim and (2) are partly shielded from disclosure. The parties pursue mixed strategies in equilibrium, preventing settlement in a positive fraction of cases.

Bayes Wars Redivivus - An Exchange

An electronic exchange among 10 evidence scholars that began with a discussion of the restyled Federal Rules and grew into a significant restatement of debates in evidentiary scholarship over the last 50 years, touching on relevance, probative value, inference, Bayesianism and the foundations of evidence, with an introduction by Michael Risinger.

De Csepel v. Republic of Hungary

In de Csepel v. Republic of Hungary, heirs of Erzsebet, Andras, and Istvan Herzog sued to recover the family’s art collection, which was seized by the Nazis in Budapest 1944 and later placed in several museums and university collections in Hungary. This chapter examines the legal questions raised by the case, which include a series of issues of international law and foreign state immunity.

Westfield v. Federal Republic of Germany

In Westfield v. Federal Republic of Germany, the family of Jewish art dealer Walter Westfeld sued in the American courts seeking compensation from the Republic of Germany for his lost art collection in Dusseldorf, which the Nazis confiscated and auctioned off before deporting him to Auschwitz. This chapter examines the adjudication of the case, which presented a series of problems of foreign state immunity.

Vineberg v. Bissonnette

In Vineberg v. Bissonnette, trustees of art dealer Max Stern’s estate sought to recover a painting the Nazis had forced Stern to sell along with the rest of the inventory of his Dusseldorf gallery in 1937. This chapter examines the adjudication of the case, which resulted in an order returning the painting to the estate, marking what to date is the only final judgment on the merits of a Nazi-era art restitution claim.

Museum of Fine Arts, Boston v. Seger-Thomschitz

In Museum of Fine Arts, Boston v. Seger-Thomschitz, the heir of Jewish collector Oskar Reichel sued to recover a Kokoschka painting that Reichel sold in Vienna in 1939, which changed hands several times and was eventually donated to Museum of Fine Arts in Boston. This chapter examines the adjudication of the case, which turned on a variety of state and federal legal questions relating to the application of the statute of limitations.

Detroit Institute of Arts and Toledo Museum of Art v. Ullin

In Detroit Institute of Arts v. Ullin and Toledo Museum of Art v. Ullin, heirs of Martha Nathan claimed that in 1938, shortly after fleeing Germany for France, she had sold paintings by Gauguin and van Gogh under duress to a group of dealers in Paris, which were later acquired by the Detroit and Toledo museums. This chapter examines the adjudication of these cases, which the courts decided in favor of the museums on the grounds that relevant statutes of limitations had expired.

Cassirer v. Kingdom of Spain and Thyssen-Bornemisza Collection Foundation

In Cassirer v. Kingdom of Spain and Thyssen-Bornemisza Collection Foundation, heirs of Lilly Cassirer sued in the American courts to recover a Pissarro painting the Nazis seized from her by the Nazis in Munich in 1939, which was later sold in the United States and was eventually acquired by the Spanish government and placed in the Thyssen-Bornemisza Museum in Madrid. This chapter examines the adjudication of the case, which raises a host of problems of constitutional law, conflicts of law, and foreign property law.