Papers by Russell Korobkin
The MIT Press eBooks, Aug 11, 2006
ABSTRACT
Marquette Law Review, 2004
PubMed, 2005
Enacted in 1974, the federal Employee Retirement Income Security Act (ERISA) 1 has been a major r... more Enacted in 1974, the federal Employee Retirement Income Security Act (ERISA) 1 has been a major roadblock to advocates of increased regulation of health insurance benefits in the era of "managed care." Originally drafted as a pension law, ERISA, as enacted, applies to all fringe benefits provided by private employers to their employees. The statute shields benefit plans, including health insurance, from state regulation in two ways. First, ERISA's "preemption" clause prohibits state laws that "relate to" employee benefit plans. 2 Second, although ERISA's "savings
Social Science Research Network, 2013
Standard economic analysis of law, dating to the publication of Ronald Coase's The Problem of Soc... more Standard economic analysis of law, dating to the publication of Ronald Coase's The Problem of Social Cost (1960), assumes that the initial allocation of legal rights will not affect the final allocation of those rights in the absence of transaction costs. To borrow one of Coase's own examples, whether the law protects Farmer's land from trespass or recognizes neighboring Rancher's right to freely graze his cattle will not affect how the land is put to use. If the law protects Farmer but the land is more valuable as pasture than it is for growing crops, Rancher will pay Farmer for the right to graze his cattle. If the law protects Rancher but the land is more valuable for crops than pasture, Farmer will pay Rancher to pen his cattle. The assignment of the legal entitlement will affect the distribution of wealth (Farmer will be richer if he has the right to exclude), but not whether the land is put to its most efficient use.
Oxford University Press eBooks, Jun 17, 2021
Time was, negotiation—at least in the professional sphere—was understood as a zero-sum process in... more Time was, negotiation—at least in the professional sphere—was understood as a zero-sum process in which buyers and sellers, or plaintiffs and defendants, would stake out extreme opening positions, haggle relentlessly, and compromise somewhere in the middle in order to reach a grudging agreement. Howard Raiffa famously labeled this the “negotiation dance.”...
Marquette Law Review, 2004
Social Science Research Network, Mar 10, 2017
Whether chief executive officers (CEOs) and other senior executives are too highly compensated is... more Whether chief executive officers (CEOs) and other senior executives are too highly compensated is one of the most publicized and divisive issues in corporate governance. In this article, we address this question not by asking whether executives are paid more than the value they create, but by asking whether firms could pay executives less money without reducing quality-thus retaining more money for shareholders-by using a better negotiation strategy. The focus of our attention is a particular feature of the way in which the compensation of CEOs and other high-level employees is often determined, although rarely discussed: the firm first decides which candidate it prefers and only then negotiates the amount of compensation with the desired candidate. We hypothesize that this approach to negotiation, which we call "choose first, negotiate second," is inferior to its alternative, which we call "negotiate first, choose second." We explain the theoretical basis for this hypothesis and then present the results of an experiment designed to test it. We conclude by suggesting a number of possible explanations for firms' failure to take advantage of what we consider to be a superior negotiating strategy.
Alternatives To The High Cost of Litigation, 2006
The author is a law professor at UCLA School of Law in Los Angeles. He is a mediator, and a negot... more The author is a law professor at UCLA School of Law in Los Angeles. He is a mediator, and a negotiation trainer. This article was adapted from the Schwartz Lecture on Dispute Resolution, delivered by the author at the Moritz College of Law at Ohio State University on Sept. 23, 2004. A longer version was published this winter by the Ohio State Journal of Dispute Resolution.
Alternatives To The High Cost of Litigation, May 1, 2006
Social Science Research Network, 2006
Human embryonic stem cell research raises a raft of legal issues that cut across substantive area... more Human embryonic stem cell research raises a raft of legal issues that cut across substantive areas of law. This paper categorizes and analyzes issues concerning the regulation of research, patent protection for stem cell innovations, informed consent of research subjects, and property rights in human tissue. Each part attempts to identify the most important and salient legal issues for researchers and policy makers, describe the current state of the law, and critically analyze that law.
Social Science Research Network, 2007
When lawsuits are resolved out of court, what determines the settlement price? This article uses ... more When lawsuits are resolved out of court, what determines the settlement price? This article uses a laboratory simulation and path analysis to estimate the relative importance of measurable variables in determining who wins the battle for the cooperative surplus. In the simulated negotiation conditions, seven variables explained more than half of the variation in settlement outcomes achieved by participants, with negotiators' predictions of their opponent's reservation prices the most important, followed by negotiator gender and amount of first offer. Although the specific context of this article is settlement, the insights generated are applicable to any two-party, distributive negotiation.
Choice Reviews Online, Jul 1, 2008
A BREAKTHROUGH TECHNOLOGY, 232 (Yale University Press 2007) [hereinafter KOROBKIN WITH MUNZER]. M... more A BREAKTHROUGH TECHNOLOGY, 232 (Yale University Press 2007) [hereinafter KOROBKIN WITH MUNZER]. Molly's disease, Fanconi Anemia, causes bone marrow failure and weakens the immune system, and children with Fanconi Anemia usually die before the end of childhood. See
Cornell Law Review, 2002
The legal-academic literature on litigation settlement describes a range offactors that affect se... more The legal-academic literature on litigation settlement describes a range offactors that affect settlement outcomes, but litigant "aspirations "-or ideal goals-are not among them. Negotiation scholars, however, routinely claim that high aspirations can improve bargaining outcomes. This Article presents the "reference point theory of aspirations," which reconciles these competing approaches by situating negotiator aspirations within the standard legal-academic model of settlement. Based on this theory, the Article offers a series of hypotheses concerning the role of aspirations in settlement negotiations, and then reports the results of experimental tests that demonstrate the hypotheses to be plausible. Finally, in light of the reference point theory of aspirations, the Article reconsiders the usual prescriptive advice offered by negotiation scholars that litigants always should set high aspirations for themselves in bargaining situations.
Social Science Research Network, Mar 7, 1998
Legal scholars use the term "incomplete contracting" to refer to contracts in which the obligatio... more Legal scholars use the term "incomplete contracting" to refer to contracts in which the obligations are not fully specified.... A contract that failed to specify the seller's obligations in the event of a flood or the buyer's breach would thus be obligationally incomplete.... Economics scholars, on the other hand, use the term "incomplete contracting" to refer to contracts that fail to fully realize the potential gains from trade in all states of the world. 2 I use the term "incomplete" to refer to situations in which the parties have left an issue unaddressed, as distinguished from instances in which the parties have attempted to address an issue but have done so with terms that are ambiguous or that are subject to more than one meaning. See Dennis Patterson, The Pseudo-Debate Over Default Rules in Contract Law, 3 S. CAL. IteRmsc. LJ. 235, 236-37 (1993) (distinguishing "substantive" incompleteness from "interpretive" incompleteness). The latter is a problem of interpreting parties' language rather than of creating legal rules to fill gaps in contracts which the parties have left. See generally Lawrence A. Cunningham, Hermeneutics and Contract Default
Social Science Research Network, Mar 19, 2012
ABSTRACT
Marquette Law Review, 2004
Marquette Law Review, 2004
(last visited January 11, 2004). 2. This definition of power is rooted in a Newtonian paradigm; i... more (last visited January 11, 2004). 2. This definition of power is rooted in a Newtonian paradigm; it does not include all of the complexity introduced by Einstein and others into the world of physics. The conflict resolution world has been slow to embrace metaphors from the "new physics" and many practitioners bring attitudes and practices that still look at power related concepts, such as time, in more fixed, Newtonian ways.
PubMed, Feb 1, 2014
With the Patient Protection and Affordable Care Act ("ACA") set to dramatically increase access t... more With the Patient Protection and Affordable Care Act ("ACA") set to dramatically increase access to medical care, the problem of rising costs will move center stage in health law and policy discussions. "Consumer directed health care" proposals, which provide patients with financial incentives to equate marginal costs and benefits of care at the point of treatment, demand more decisionmaking ability from consumers than is plausible due to bounded rationality. Proposals that seek to change the incentives of health care providers threaten to create conflicts of interest between doctors and patients. New approaches are desperately needed. This Article proposes a government-facilitated but market-based approach to improving efficiency in the private market for medical care that I call "relative value health insurance." This approach focuses on the "choice architecture" necessary to enable even boundedly rational patients to contract for an efficient level of health care services through their health insurance purchase decisions. It uses comparative effectiveness research, which the ACA funds at a significant level for the first time, to rate medical treatments on a scale of one to ten based on their relative value, taking into account expected costs and benefits. These relative value ratings would enable consumers to contract with insurers for different levels of medical care at different prices, reflecting different cost-quality trade-offs. The Article describes both the benefits of relative value health insurance and the impediments to its implementation. It concludes with a brief discussion of how relative value ratings could also help to rationalize expenditures on public health insurance programs.
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Papers by Russell Korobkin