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.