The first defense of the proposed rule, based on a libertarian, free-market model of law, treats trial as a private good. In a free market, the author argues, whoever chooses trial, an expensive means of dispute resolution, should have to pay for it. The proposed rule designates a party who rejects an offer that proves more favorable to it than the judgment as having chosen trial. A second, distinct basis for the proposal relies on an egalitarian approach to the litigation process, which suggests that the relative wealth and knowledge of parties to a dispute should not affect the outcome of settlement. The Article argues that the proposed rule would enhance the bargaining position of parties who otherwise would be vulnerable in settlement negotiations.
Vulnerable parties are apt to make offers of settlement favorable to the opposing party.
The proposal would benefit these parties by rewarding attractive offers of settlement. Their opponents would have an incentive to settle for a reasonable amount, lest they fare poorly in court and owe an attorney's fee award. A third and final approach to the litigation process, civic republicanism, provides a third basis for the proposal. Civic republicanism sees trial as an opportunity to engage the public at large in political debate. From the civic republican perspective, the trials that would best serve the public involve controversies about values central to the polity.