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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.

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