This Article uses an often-overlooked component of prospect theory to develop a positive theory of frivolous or low-probability litigation. The proposed Frivolous Framing Theory posits that the decision frame in frivolous litigation induces risk-seeking behavior in plaintiffs and risk-averse behavior in defendants. Because plaintiffs in frivolous litigation have a greater tolerance for risk than the defendants they have sued, plaintiffs in frivolous litigation have "psychological leverage" in settlement negotiations, which is likely to lead to plaintiff-friendly settlements or bargaining impasse. This, in turn, suggests that reformers concerned about frivolous litigation should target reform efforts at plaintiffs' decisionmaking in frivolous suits.
"Framing Frivolous Litigation: A Psychological Theory,"
University of Chicago Law Review: Vol. 67:
1, Article 4.
Available at: https://chicagounbound.uchicago.edu/uclrev/vol67/iss1/4