Professor Hay’s primary field is legal procedure, including civil litigation, conflicts of law, and dispute resolution. His latest book, Nazi-Looted Art and the Law (2017), examines the intricacies of the American courts’ adjudication of Holocaust-era restitution claims, which raise myriad problems of domestic, international and foreign law as well as difficult evidentiary questions. He is also interested in the economic analysis of law, including the economics of litigation, liability, and insurance. Before joining the Harvard faculty he clerked at the United States Supreme Court, and practiced law with Sidley Austin LLP in Washington, DC, specializing in appellate cases. He studied at the University of Wisconsin-Madison, l’Université d’Aix-en-Provence, and Harvard Law School.
Bruce L. Hay, A No-Fault Approach to the Duty to Settle, 68 Rutgers L. Rev. 321 (2015).
This paper revisits the old question whether a liability insurer's "duty to settle" should be governed by a fault standard, as it is under current law, or should instead be governed by a rule that would hold the insurer liable without proof of fault when it declines an offer to settle for an amount within policy limits. The paper, part of a symposium on the Restatement of the Law of Liability Insurance project, develops the economic argument in favor of a no-fault (or strict liability) rule, and considers some of the objections that have been raised against such a rule.
Bruce L. Hay & Kathryn E. Spier, Manufacturer Liability for Harm Caused by Consumers to Others, 95 Am. Econ. Rev. 1700 (2005).
Should the manufacturer of a product be held legally responsible when a consumer, while using the product, harms someone else? We show that if consumers have deep pockets then manufacturer liability is not economically efficient. It is more efficient for the consumers themselves to bear responsibility for the harms that they cause. If homogeneous consumers have limited assets, then the most efficient rule is "residual-manufacturer liability" where the manufacturer pays the shortfall in damages not paid by the consumer. Residual-manufacturer liability distorts the market quantity when consumers' willingness to pay is correlated with their propensity to cause harm. It distorts product safety when consumers differ in their wealth levels. In both cases, consumer-only liability may be more efficient.
Environmental Protection and the Social Responsibility of Firms: Perspectives from Law, Economics, and Business (Bruce L. Hay, Robert L. Stavins & Richard Vietor eds., Johns Hopkins Univ. Press 2005).
Everyone agrees that firms should obey the law. But beyond what the law requires-beyond bare compliance with regulations-do firms have additional social responsibilities to commit resources voluntarily to environmental protection? How should we think about firms sacrificing profits in the social interest? Are they permitted to do so, given their fiduciary responsibilities to their shareholders? Even if permissible, is the practice sustainable, or will the competitive marketplace render such efforts and their impacts transient at best? Furthermore, is the practice, however well intended, an efficient use of social and economic resources? And, as an empirical matter, to what extent do firms already behave this way? Until now, public discussion has generated more heat than light on both the normative and positive questions surrounding corporate social responsibility (CSR) in the environmental realm. In Environmental Protection and the Social Responsibility of Firms, some of the nation's leading scholars in law, economics, and business examine commonly accepted assumptions at the heart of current debates on corporate social responsibility and provide a foundation for future research and policymaking.
Bruce L. Hay, Nazi-Looted Art and the Law: The American Cases (2017).
This book offers a clear, accessible account of the American litigation over the restitution of works of art taken from Jewish families during the Holocaust. For the past two decades, the courts of the United States have been an arena of conflict over this issue that has recently captured widespread public attention. In a series of cases, survivors and heirs have come forward to claim artworks in public and private collections around the world, asserting that they were seized by the Nazis or were sold under duress by owners desperate to escape occupied countries. Spanning two continents and three-quarters of a century, the cases confront the courts with complex problems of domestic and international law, clashes among the laws of different jurisdictions, factual uncertainties about the movements of art during and after the war, and the persistent question whether restitution claims have been extinguished by the passage of time.Through individual case studies, the book examines the legal questions these conflicts have raised and the answers the courts have given. From the internationally celebrated “Woman in Gold” lawsuit against Austria to lesser-known claims against Germany, Hungary, Spain, and museums and private collections in the United States, the book synthesizes the legal and evidentiary materials and judicial rulings in each case, creating a coherent narrative of proceedings that are often labyrinthine in complexity. Written by a leading authority on litigation and procedure, the book will be of interest to readers in various fields of the humanities and social sciences as well as law, and to anyone interested in the fate of artworks that have been called the “last prisoners” of the Second World War.
Bruce L. Hay, The Damned Dolls, 26 Law & Literature 321 (2014).
Bruce L. Hay, Christopher Rendall-Jackson & David Rosenberg, Litigating BP's Contribution Claims in Publicly Subsidized Courts: Should Contracting Parties Pay Their Own Way?, 64 Vand. L. Rev. 1919 (2011).
In this Article, we focus on an important problem with mass-accident cases, a problem highlighted by the Deepwater Horizon litigation: overuse of courts to enforce contribution claims. These claims seek to allocate liability among the business and governmental entities that contractually participated in the risky venture. Joint and several liability with provision for contribution, for example, enables plaintiffs asserting primary claims to recover all proven damages from a single “deep-pocket” defendant, regardless of that defendant’s own share of legal responsibility for the harm, and then authorizes the defendant to sue other joint venturers to recoup payments in excess of its proportionate share of liability. The key point for our purposes is that contribution claims are entirely creatures of the joint venturers’ own making. Through a contract that establishes the terms of their joint venture relationship (“predispute contract”), the parties can exercise complete control over whether to subject themselves to contribution claims, and, if so, whether to resolve the claims by publicly funded courts or by a privately funded alternative, such as arbitration. Because the parties prosecuting and defending against contribution claims can consume judicial resources largely free of charge, it is likely they will choose to litigate in court to a greater extent than is socially desirable. The specific, socially detrimental result of such distorted litigation incentives is delayed resolution of cases that merit greater priority in gaining access to public judicial resources. Generally, these are cases in which the claimants lacked predispute contractual means to control risk and provide for nonjudicial alternatives, and hence the principal social benefits of deterrence and compensation depend on court-enforced civil liability. We argue that courts can effectively correct the contracting parties’ incentives by charging them for the cost of using the judicial process. Requiring contracting parties to pay their way in court would free up judicial resources to increase the average level of benefits from adjudication. Such a user fee, as we show, can be extended to almost all commercial-contract cases.
Roger C. Park, Peter C. Tillers, Frederick C. Moss, D. Michael Risinger, David H. Kaye, Ronald J. Allen, Samuel R. Gross, Bruce L. Hay, Michael S. Pardo & Paul F. Kirgis, Bayes Wars Redivivus? An Exchange, 8 Int'l Comment. on Evidence art. 1 (2010).
Bruce L. Hay, An Enforcement Policy Perspective on Entrapment (Comment), in Criminal Law Conversations 507 (Paul H. Robinson, Stephen P. Garvey & Kimberly Kessler Ferzan eds., Oxford Univ. Press 2009).
Bruce L. Hay, Les Demoiselles D'Evanston: On the Aesthetics of the Wigmore Chart, 7 Law, Probability & Risk 211 (2008).
Wigmore's ‘The Problem of Proof’, published in 1913, was a path-breaking attempt to systematize the process of drawing inferences from trial evidence. In this paper, written for a conference on visual approaches to evidence, I look at the Wigmore article in relation to cubist art, which coincidentally made its American debut in New York and Chicago the same spring that the article appeared. The point of the paper is to encourage greater attention to the complex meanings embedded in visual diagrams, meanings overlooked by the prevailing cognitive scientific approaches to the Wigmore method.
Bruce L. Hay, The Earth Turned to Bring Us Closer, 29 Cardozo L. Rev. 1935 (2008).
This paper is part of a symposium issue entitled "Law and Event," whose subject is the work of the contemporary French philosopher Alain Badiou. The paper offers a reading of "21 Grams," a film that treats in narrative terms some of the central problems addressed in Badiou's work, notably the connections between love, fate, and mathematics, and the mysterious nature of the "event" in history. The paper emphasizes the film's effort to blend Greek myth and philosophy, Christian theology, and modern chaos theory.
Bruce L. Hay, Charades: Religious Allegory in 12 Angry Men, 82 Chicago-Kent L. Rev. 811 (2007).
This essay, a contribution to a symposium marking the 50th anniversary of the film 12 Angry Men, shows that the film is an intricate, carefully constructed allegory of a series of stories from the Hebrew Bible and the New Testament. The essay offers some conjectures on the relation between the film's biblical subtext and its surface political themes.
Bruce L. Hay & Kathryn E. Spier, Burdens of Proof in Civil Litigation: An Economic Perspective, in The Economics of Evidence, Procedure, and Litigation v. 2 (Chris W. Sanchirico ed., 2007).
Bruce L. Hay, Sting Operations, Undercover Agents and Entrapment, 70 Mo. L. Rev. 387 (2005).
This paper undertakes an economic analysis of "sting" operations, in which the authorities induce, or tempt, an individual to commit a crime or comparable rule violation. The paper considers the rationales for this law enforcement technique, including its potential advantages over alternative techniques such as ex post apprehension of offenders. Two functions of sting operations are emphasized and analyzed: (1) the informational function of identifying likely offenders; and (2) the behavioral function of deterring offenses. The paper examines the tensions between these functions, and offers a model of desirable sting operation policy.
Bruce L. Hay & David Rosenberg, 'Sweetheart' and 'Blackmail' Settlements in Class Actions: Reality and Remedy, 75 Notre Dame L. Rev. 1377 (2000).
Bruce L. Hay, & Kathryn E. Spier, Settlement of Litigation, in The New Palgrave Dictionary of Economics and the Law 442 (Peter Newman ed., 1998).
Perhaps the most widely discussed topic in the economics of legal procedure is the relation between litigation and settlement. This paper offers a critical introduction to the voluminous economic literature on this topic. This literature considers questions such as why the parties to a dispute choose to go to court, rather than settling the matter privately; what determines the likelihood that a case will settle, and the terms on which it is settled; how various legal instruments or rules influence parties' decision to settle or go to court; and how the choice between settlement and litigation affects social welfare. These issues have turned out to be surprisingly complex, and continue to receive extensive attention as commentators employ increasingly refined models to examine the many nuances of the problem. The present paper attempts to set forth in a concise and informal manner the major results of this work and some directions for future research.
Bruce L. Hay, Procedural Justice - Ex Ante v. Ex Post (Symposium on Alternative Dispute Resolution), 44 UCLA L. Rev. 1803 (1997).
Bruce L. Hay, Allocating the Burden of Proof, 72 Ind. L.J. 651 (1997).
Bruce L. Hay & Kathryn E. Spier, Burdens of Proof in Civil Litigation: An Economic Perspective, 26 J. Legal Stud. 413 (1997).
Bruce L. Hay, Asymmetric Rewards: Why class actions (may) settle for too little, 48 Hastings L.J. 479 (1997).
Bruce L. Hay, Contingent Fees, Principal-Agent Problems, and the Settlement of Litigation, 23 Wm. Mitchell L. Rev. 43 (1997).
Bruce L. Hay, Optimal Contingent Fees in a World of Settlement, 26 J. Legal Stud. 259 (1997).
This article examines the design of contingent fees for plaintiffs' lawyers in a legal system that gives parties the choice between going to trial and settling out of court. Using a simple principal‐agent model with attorney moral hazard, the article shows that the client generally benefits from a bifurcated fee structure in which the attorney gets a large fraction of the recovery in the event of trial but a small fraction in the event of settlement; this structure maximizes both the size of the recovery and the client's distributive share of it. The article also examines the limits on the use of this fee structure that are imposed by two aspects of the settlement bargaining process: (1) the allocation of settlement authority between lawyer and client, and (2) the relative bargaining power of plaintiff and defendant.
Bruce L. Hay, Contingent Fees and Agency Costs, 25 J. Legal Stud. 503 (1996).
In this article, I examine the operation of ordinary linear contingent fees in a model of litigation in which the recovery on a claim is a function of the lawyer's efforts. My object here is to analyze the linear fee that maximizes the client's welfare in the presence of attorney moral hazard. I identify the optimal fee as the one that minimizes two agency costs: underinvestment in the claim, and attorney rents. I also attempt to identify how the optimal linear fee varies with different case characteristics.
Given the costs of litigation and the availability of pretrial discovery, the question arises why some cases fail to settle at any time in the pretrial period. To examine this problem, the article develops a model of litigation and settlement in which the efforts the parties invest in the case (1) partly determine the strength of the plaintiff's claim and (2) are partly shielded from disclosure. The parties pursue mixed strategies in equilibrium, preventing settlement in a positive fraction of cases.
Bruce L. Hay, Civil Discovery: Its Effects and Optimal Scope, 23 J. Legal Stud. 481 (1994).
Bruce L. Hay, Some Settlement Effects of Preclusion, 1993 U. Ill. L. Rev. 21 (1993).
Bruce L., Hay, Conflicts of Law and State Competition in the Product Liability System, 80 Geo. L.J. 617 (1992).