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Rules of proof, courts, and incentives

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  • Dominique Demougin
  • Claude Fluet

Abstract

We analyze the design of legal principles and procedures for court decision making in civil litigation. The objective is the provision of incentives for potential tort-feasors to exert care when evidence is imperfect and may be distorted by the parties. Efficiency is consistent with courts adjudicating on the basis of the preponderance of evidence standard together with common law exclusionary rules. Inefficient equilibria may nevertheless also arise under these rules. Burden of proof guidelines are then useful as a coordination device. Alternatively, guidelines are unnecessary if courts are allowed a more active or inquisitorial role in contrast to that of passive adjudicator. Copyright (c)2008, RAND.

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Bibliographic Info

Article provided by RAND Corporation in its journal The RAND Journal of Economics.

Volume (Year): 39 (2008)
Issue (Month): 1 ()
Pages: 20-40

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Handle: RePEc:bla:randje:v:39:y:2008:i:1:p:20-40

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References

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  1. Henrik Lando, 2002. "When is the Preponderance of the Evidence Standard Optimal?," The Geneva Papers on Risk and Insurance - Issues and Practice, Palgrave Macmillan, vol. 27(4), pages 602-608, October.
  2. Baliga, Sandeep & Morris, Stephen, 2002. "Co-ordination, Spillovers, and Cheap Talk," Journal of Economic Theory, Elsevier, vol. 105(2), pages 450-468, August.
  3. Bull, Jesse & Watson, Joel, 2002. "Evidence Disclosure and Verfiability," University of California at San Diego, Economics Working Paper Series qt19p7z2gm, Department of Economics, UC San Diego.
  4. Andrew F. Daughety & Jennifer F. Reinganum, 1995. "Keeping Society in the Dark: On the Admissibility of Pretrial Negotiations as Evidence in Court," RAND Journal of Economics, The RAND Corporation, vol. 26(2), pages 203-221, Summer.
  5. Claude Fluet, 2002. "Enforcing Contracts: Should Courts Seek the Truth?," CIRANO Working Papers 2002s-76, CIRANO.
  6. Antonio Bernardo & Eric L. Talley & Ivo Welch, 1999. "A Theory of Legal Presumptions," Yale School of Management Working Papers ysm118, Yale School of Management.
  7. Joseph Farrell & Matthew Rabin, 1996. "Cheap Talk," Journal of Economic Perspectives, American Economic Association, vol. 10(3), pages 103-118, Summer.
  8. Tracy Lewis & Michel Poitevin, 1995. "Disclosure of Information in Regulatory Proceedings," CIRANO Working Papers 95s-01, CIRANO.
  9. Dominique Demougin & Claude Fluet, 2002. "Preponderance of Evidence," Cahiers de recherche CREFE / CREFE Working Papers 150, CREFE, Université du Québec à Montréal.
  10. Paul Milgrom & John Roberts, 1986. "Relying on the Information of Interested Parties," RAND Journal of Economics, The RAND Corporation, vol. 17(1), pages 18-32, Spring.
  11. Daniel L. Rubinfeld & David E.M. Sappington, 1987. "Efficient Awards and Standards of Proof in Judicial Proceedings," RAND Journal of Economics, The RAND Corporation, vol. 18(2), pages 308-315, Summer.
  12. Joel L. Schrag, 1999. "Managerial Judges: An Economic Analysis of the Judicial Management of Legal Discovery," RAND Journal of Economics, The RAND Corporation, vol. 30(2), pages 305-323, Summer.
  13. Shin, Hyun Song, 1997. "Adversarial and Inquisitorial Procedures in Arbitration," CEPR Discussion Papers 1722, C.E.P.R. Discussion Papers.
  14. Block, Michael K. & Parker, Jeffrey S., 2004. "ecision making in the absence of successful fact finding: theory and experimental evidence on adversarial versus inquisitorial systems of adjudication," International Review of Law and Economics, Elsevier, vol. 24(1), pages 89-105, March.
  15. Dan Bernhardt & Ed Nosal, 2003. "Nearsighted justice," Working Paper 0304, Federal Reserve Bank of Cleveland.
  16. Dominique Demougin & Claude Fluet, 2005. "Deterrence versus Judicial Error: A Comparative View of Standards of Proof," Journal of Institutional and Theoretical Economics (JITE), Mohr Siebeck, Tübingen, vol. 161(2), pages 193-, June.
  17. Parisi, Francesco, 2002. "Rent-seeking through litigation: adversarial and inquisitorial systems compared," International Review of Law and Economics, Elsevier, vol. 22(2), pages 193-216, August.
  18. Schrag, Joel & Scotchmer, Suzanne, 1994. "Crime and Prejudice: The Use of Character Evidence in Criminal Trials," Journal of Law, Economics and Organization, Oxford University Press, vol. 10(2), pages 319-42, October.
  19. Palumbo, Giuliana, 2001. "Trial procedures and optimal limits on proof-taking10," International Review of Law and Economics, Elsevier, vol. 21(3), pages 309-327, September.
  20. Hay, Bruce L & Spier, Kathryn E, 1997. "Burdens of Proof in Civil Litigation: An Economic Perspective," The Journal of Legal Studies, University of Chicago Press, vol. 26(2), pages 413-31, June.
  21. Daughety, Andrew F & Reinganum, Jennifer F, 2000. "On the Economics of Trials: Adversarial Process, Evidence, and Equilibrium Bias," Journal of Law, Economics and Organization, Oxford University Press, vol. 16(2), pages 365-94, October.
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Citations

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Cited by:
  1. Marcel Boyer & Donatella Porrini, 2010. "Optimal liability sharing and court errors: an exploratory analysis," Working Papers hal-00463913, HAL.
  2. Bourjade, Sylvain & Rey, Patrick & Seabright, Paul, 2009. "Private Antitrust Enforcement in the Presence of Pre-Trial Bargaining," TSE Working Papers 09-041, Toulouse School of Economics (TSE).
  3. Bruno Deffains & Claude Fluet, 2013. "The Role of Social Image Concerns in the Design of Legal Regimes," Cahiers de recherche 1321, CIRPEE.
  4. Antonio Nicita & Matteo Rizzolli, 2013. "In Dubio Pro Reo. Behavioral explanations of pro-defendant bias in procedures," BEMPS - Bozen Economics & Management Paper Series BEMPS04, School of Economics and Management at the Free University of Bozen.
  5. Marcel Boyer & Donatella Porrini, 2010. "The Impact of Court Errors on Liability Sharing and Safety Regulation for Environmental/Industrial Accidents," CIRANO Working Papers 2010s-48, CIRANO.
  6. Cotton, Christopher, 2012. "Pay-to-play politics: Informational lobbying and contribution limits when money buys access," Journal of Public Economics, Elsevier, vol. 96(3), pages 369-386.
  7. Giovanni Immordino & Michele Polo, 2012. "Antitrust in Innovative Industries: the Optimal Legal Standards," Working Papers 434, IGIER (Innocenzo Gasparini Institute for Economic Research), Bocconi University.
  8. Emons, Winand & Fluet, Claude, 2009. "Adversarial versus Inquisitorial Testimony," CEPR Discussion Papers 7476, C.E.P.R. Discussion Papers.
  9. Hugo Mialon & Sue Mialon, 2008. "The Economics of Search Warrants," Emory Economics 0810, Department of Economics, Emory University (Atlanta).
  10. Christopher Cotton, 2010. "Pay-to-Play Politics: Informational lobbying and campaign finance reform when contributions buy access," Working Papers 2010-22, University of Miami, Department of Economics.

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