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Deterrence versus Judicial Error: A Comparative View of Standards of Proof

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  • Dominique Demougin
  • Claude Fluet

Abstract

We argue that the common-law standard of proof, given the rules of evidence, does not minimize expected error as usually argued in the legal literature, but may well be efficient from the standpoint of providing maximal incentives for socially desirable behavior. By contrast, civil law's higher but somewhat imprecise standard may be interpreted as reflecting a trade-off between providing incentives and avoiding judicial error per se. In our model, the optimal judicial system has rules resembling those in the common law when providing incentives is paramount. When greater weight is given to avoiding error, the optimal system has civil-law features.

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Bibliographic Info

Article provided by Mohr Siebeck, Tübingen in its journal Journal of Institutional and Theoretical Economics.

Volume (Year): 161 (2005)
Issue (Month): 2 (June)
Pages: 193-

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Handle: RePEc:mhr:jinste:urn:sici:0932-4569(200506)161:2_193:dvjeac_2.0.tx_2-n

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Cited by:
  1. Fluet, Claude, 2010. "Liability rules under evidentiary uncertainty," International Review of Law and Economics, Elsevier, Elsevier, vol. 30(1), pages 1-9, March.
  2. Anja Olbrich, 2008. "The optimal negligence standard in health care under supply-side cost sharing," International Journal of Health Care Finance and Economics, Springer, vol. 8(2), pages 73-85, June.
  3. repec:ebl:ecbull:v:11:y:2006:i:2:p:1-7 is not listed on IDEAS
  4. Bruno Deffains & Claude Fluet, 2013. "The Role of Social Image Concerns in the Design of Legal Regimes," Cahiers de recherche 1321, CIRPEE.
  5. Dominique Demougin & Claude Fluet, 2007. "Rules of Proof, Courts, and Incentives," CESifo Working Paper Series 2014, CESifo Group Munich.
  6. Matteo Rizzolli & Luca Stanca, 2012. "Judicial Errors and Crime Deterrence: Theory and Experimental Evidence," Journal of Law and Economics, University of Chicago Press, vol. 55(2), pages 311 - 338.
  7. Bruno Deffains & Claude Fluet, 2007. "Legal versus Normative Incentives under Judicial Error," Cahiers de recherche 0718, CIRPEE.
  8. 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.

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