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Shaq and the Case of the Missing Bribes—A Commentary by Ian Ayres ’86

The following commentary was posted on newyorktimes.com on September 28, 2009.

Shaq and the Case of the Missing Bribes
By Ian Ayres ’86

My coauthor (and spouse) Jennifer Brown just finished serving as foreperson on a civil jury in Connecticut state court on a two-week trial.

Maddeningly, she was scrupulous in declining to tell me anything about the proceedings until the verdict was in and the judge gave the go-ahead (think twice before you marry someone who teaches legal ethics). The second week of the trial imposed uncompensated costs on the family (especially on Jennifer, who had to cancel a trip to deliver a paper).

Nonetheless, even now she remains skeptical of my suggestion for a way that she could have promoted efficiency and settlement.

I’ve suggested that she could have sent the judge a note at the beginning of the trial offering to give the parties $1,000 if they should settle before the end of the first week. The note would also make clear that failure to settle would not impact the way she would eventually decide the case.

Should a juror be dismissed (or disciplined!) for making such an offer?

I hope not. The offered bribe promotes efficiency because it helps the litigants internalize what would otherwise be external costs. The other jurors who have uncompensated costs should be happy. Other litigants who want their day in court should be happy as court personnel are freed to handle other, waiting matters.

Moreover, the contribution should be welcomed by the very litigants in the dispute at hand who have an extra $1,000 to play with if they can come to terms. There is little reason to think that it would undermine the integrity of the trial. For one thing, the bribing juror would make clear (and be sincere) that she would remain impartial; for another, the bribing juror wouldn’t know who to blame for a failure to settle. (Well, this isn’t exactly true. If the plaintiff asked for $3,000 at trial and Jennifer offered $1,000, she could be fairly confident that the defendant was offering to pay less than $2,000. She might penalize the defendant if she thought that was an unreasonably low offer.)

A bigger concern is that in the long run, creating a precedent of juror contributions might lead to distortions in decisions to file suit and to impanel jurors. We could imagine sham litigation where plaintiffs and defendants went to trial with hopes of shaking down the jurors — a kind of de facto extortion. Or litigants might prefer to strike poorer jurors from the panel in hopes of keeping the richest jurors as potential contributors.

The extortion concern might explain a lot of our reluctance to offer bribes. But there are circumstances where a one-off bribe can work wonders. When my kids were little, I remember bribing a college student on an Amtrak train to move to another open seat so that my family could sit together.

In fact, I wonder why Shaq and a few other NBA players haven’t offered to make modest contributions to help resolve the current referee dispute. Shaq has publicly supported the refs in their negotiation with the league. He worries that replacement refs will increase his probability of injury. He comes by his concern naturally since he was injured during the last ref lockout in 1995 (“O’Neal needed surgery for a broken thumb after being fouled by Matt Geiger in a preseason game.”) In some ways, Shaq may just be trying to curry favor. After all, sooner or later the unionized refs will be back officiating NBA games, and they may (consciously or unconsciously) favor the players who had their back during these negotiations. But whatever the mixture of self-interest and altruism, Shaq might go further by offering, say, $100,000 if the dispute is resolved before the regular season.

It’s hard to know for sure, but some public reports suggest that the two sides may be less than a million dollars apart. This would be a paltry sum for a few concerned players to kick in — and Shaq is unlikely to be around to contribute to future labor disputes.

One of the big reasons that offering a bribe can be valuable is that I’ve found that the offer can be effective even if you don’t ever pay. Just your willingness to make a real offer credibly signals your value (because it might be accepted).

For example, a couple of years ago I had to fly into Chicago at the last minute for a wedding that was going to take place on a cruise ship in the middle of Lake Michigan. My flight was late and I had very little time to take a cab from O’Hare Airport to the boat dock. But when I got to the cab stand at the airport, there were 30 or 40 people waiting for a cab. I walked to the front and offered any one of the first five people something like $100 if they would let me take their place in line and help me make my wedding boat. My thought was if I paid for a single person’s place (and that person moved to the back of the line), I wouldn’t be holding anyone else up in the line.

Two or three guys at the front of the line — as well as the O’Hare employee managing the line — started asking me about the wedding (Was I in the wedding party? How did I know the groom?) to get a better sense of my bona fides. In the end, they offered to let me cut to the front without paying. This was not my preferred option because this self-appointed group was imposing costs on a bunch of other people in the back of the line who really didn’t have an opportunity to see or hear what was going on. I would have preferred to pay a Benjamin. But sadly, with the blessing of the O’Hare line manager, I was whisked on to the next waiting cab without paying for the privilege.