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persuasive analysis, we can expect under the joint and several rule more trials and appeals, and fewer settlements.

Cf. Harlan, supra note 25. When the jury verdict of $200 million in punitive damages was announced against Coopers & Lybrand, the firm said "it was 'outraged' by the verdict. `We intend to mount a vigorous appeal to what we believe is a vastly excessive and unconscionable award.... Our firm has the financial resources and the will to exercise all its legal options." Another defendant in the ease said it expected "the appeals process to take years." Id. Although the ease was settled shortly thereafter, see supra note 183, we believe it was because the parties were sure the massive punitives would lead to a new trial, the outcome of which was very uncertain. In as much as the plaintiffs at this point were probably well within the domain of gains after the settlement offer, they no doubt resorted to risk averse behavior and settled.

(n331) See Tversky & Kahuman, supra note 321, at S262 (Referring to the work of M.H. Bazerman the authors state, "Subjects who bargained over the allocation of losses more often failed to reach agreement and more often failed to discover a Pareto-optimal solution.").

(n332) See Medniek, supra note 196, at 121-22.

(n333) See Herskovitz, supra note 6, at 21.

(n334) There certainly have been a great many articles in law reviews, bar journals, daily press, and general news periodicals setting out both sides of the liability-to-third-party issue. As one set of authors have found, however, there still remain substantial differences in viewpoint between judges and auditors on the issues. See Jennings et al., supra note 102. The fact that this and previous studies by these authors have involved members of the National Judicial College as subjects would suggest that those judges, at least, are likely to be more knowledgeable about (if not more sympathetic to) auditor attitudes after their participation in these studies than before.

(n335) See supra note 304 and accompanying text.

(n336) At present an auditor's qualified opinion sounds a shrill alarm. The effect on the enterprise's ability to find investment capital and credit is immediately and negatively affected. If qualified opinions become more common, the alarm will perhaps come to be less shrill, but the uncertainty of the messages being communicated to the capital markets must nevertheless translate into higher borrowing rates and lower stock prices.

(n337) See supra note 285 and accompanying text.

(n338) See supra notes 278-79 and accompanying text.

(n339) See supra note 280 and accompanying text.

(n340) See ECONOMIC STRUCTURE, supra note 272, at 193. In this discussion, Landes and Posner focus on risk allocation among potential joint tortfeasors. So long as the anticipated losses are assigned to all potential defendants ex ante, the defendants will be deterred, even if ex


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