A common view holds that, according to prominent scholars of law and economics, such as Ronald Coase or Guido Calabresi and A. Douglas Melamed, “judgments that misallocate resources leave unrealized value on the bargaining table” and that this value should be taken up and redistributed in the course of post-judgment bargaining (“PJB”). Ward Farnsworth, however, presented an approach according to which acrimony, bitterness, and a resistance to treating entitlements as transferrable commodities can make bargaining between parties difficult, rare, or impossible. Farnsworth argued that economists, who tend to focus on strategic bargaining behavior, often overlook acrimony as a basis for reluctance to bargain even when it is considered economically efficient. According to him, the models adopted by the economists have given rise to potentially misleading notions about PJB behavior, leading us to believe that parties to a lawsuit can, at least in principle, continue bargaining after the court renders judgment. The results of Farnsworth’s research show that none of the parties engaged in the twenty cases of nuisance he researched bargained after entitlements protected by property rules were awarded. Most of the time, the parties did not even try to trade the entitlement protected by a property rule for the one protected by a liability rule (damages).
Farnsworth surveyed nuisance disputants after the initial decision and found almost without exception that the parties and their attorneys failed to even consider the possibility of bargaining in the shadow of the law because the individuals were frequently bitter toward each other, and no bargain ever came to fruition. Thus, Farnsworth’s findings indicate that parties sometimes do not bargain around court rulings, trying to sell the entitlement protected by a property rule, because the litigation process generates enmity and animosity between the litigants. Some scholars have argued that the courts do a good job allocating the entitlement and make the correct and efficient choice at the outset, and therefore there is no need for the parties to bargain after a judgment is given. In contrast, Farnsworth reported that the lawyers for the parties, who were interviewed in the course of the research, did not think that there would have been bargaining even if the judgment had gone in the opposite direction.
This Article presents a case with a different outcome: a civil suit for compensation for refusal to divorce (that is, the refusal of a husband to grant a get—the Jewish divorce bill to his wife). The parties—spouses in conflict—feel extreme animosity toward one another because the husband unilaterally refuses to divorce his wife and religious family law has no remedy for the woman. The woman sues her husband in civil court hoping to use the compensation that she is awarded, after the court allocates the rights, in her negotiation with her husband for a deal in which she renounces the compensation if he agrees to divorce her. Here, PJB works in practice, contrary to the cases studied by Farnsworth, as shown by a recent empirical study.
