Framing frivolous litigation: A psychological theory

This Article uses an often-overlooked component of prospect theory to devel op a positive theory of frivolous or low-probability litigation. The propos ed Frivolous Framing Theory posits that the decision frame in frivolous lit igation induces risk-seeking behavior in plaintiffs and risk-averse behavio r in defendants. Because plaintiffs in frivolous litigation have a greater tolerance for risk than the defendants they have sued, plaintiffs in frivol ous litigation have "psychological leverage" in settlement negotiations, wh ich is likely to lead to plaintiff-friendly settlements or bargaining impas se. This in turn, suggests that reformers concerned about frivolous litigat ion should target reform efforts at plaintiffs' decisionmaking in frivolous suits.