About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

48 U. Mich. J.L. Reform 813 (2014-2015)
Between the Ceiling and the Floor: Making the Case for Required Disclosure of High-Low Agreements to Juries

handle is hein.journals/umijlr48 and id is 841 raw text is: BETWEEN THE CEILING AND THE FLOOR: MAKING THE CASE FOR REQUIRED DISCLOSURE OF HIGH-LOW AGREEMENTS TO JURIES Richard Lorren Jolly* Parties are increasingly using high-low agreements to limit the risks of litigation. High-low agreements are contracts in which defendants agree to pay plaintiffs a minimum recovery in return for plaintiffs' agreement not to execute on a jury award above a maximum amount. Currently no jurisdiction requires high-low agreements to be disclosed to the jury. This Note argues that disclosure should be required. It contends that non-disclosed high-low agreements are a type of procedu- ral contract modifying the jury's core adjudicative function. Drawing on theories of procedural justice, it suggests that by usurping the jury's role these agreements un- dermine the legitimacy of the judicial system. It contends that requiring disclosure would remedy these negative effects and that any unintended consequences attend- ant to disclosure could be mitigated by the court or by the parties. TABLE OF CONTENTS TABLE OF CONTENTS ........................................... 813 INTRODUCTION ................................................. 814 I. A BACKGROUND ON PROCEDURAL CONTRACTS AND THE CIVILJURY............................................... 817 A. Litigants Possess Increasing Autonomy in Crafting Procedural Contracts ............................... 817 B. The Civil Jury is an Administrative and Socio-Political Institution ........................................ 821 II. NON-DISCLOSURE OF HIGH-LOW AGREEMENTS COMPROMISES JUDICIAL LEGITIMACY .................... 824 A. Non-Disclosed High-Low Agreements are Procedural Contracts ......................................... 824 B. Non-Disclosed High-Low Agreements Undermine Procedural Legitimacy .............................. 827 C. Non-Disclosed High-Low Agreements Can Be Differentiated from Seemingly Similar Procedures ...... 830 III. DISCLOSURE OF HIGH-LOW AGREEMENTS SHOULD BE REQUIRED ............................................... 833 A. Requiring Disclosure Preserves Judicial Legitimacy .... 833 * J.D. Candidate. University of Michigan Law School. December 2014. I would like to thank Professor J.J. Prescott, the staff and Notes office of the Michigan Journal of Law Reform, AndrewJunker, Par Krayenbuhl, and Maja Martin for their invaluable comments.

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most