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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 appropriate incentives for potential tort-feasors to exert care, when evidence about care is imperfect and may be distorted by the parties. Efficiency is shown to be consistent with courts adjudicating on the basis of the preponderance of evidence standard of proof together with common law exclusionary rules. Inefficient equilibria may nevertheless also arise under these rules. Directing courts as to the assignment of the burden of proof is then useful as a coordination device. Alternatively, burden of proof guidelines are unnecessary if courts are allowed a more active or inquisitorial role, by contrast with that of passive adjudicator.

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File URL: http://www.cesifo-group.de/portal/page/portal/DocBase_Content/WP/WP-CESifo_Working_Papers/wp-cesifo-2007/wp-cesifo-2007-06/cesifo1_wp2014.pdf
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Bibliographic Info

Paper provided by CESifo Group Munich in its series CESifo Working Paper Series with number 2014.

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Date of creation: 2007
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Handle: RePEc:ces:ceswps:_2014

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Keywords: evidentiary rules; standard of proof; burden of proof; inquisitorial; adversarial; discovery; deterrence;

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References

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  1. Daughety, A. & Reinganum, J., 1991. "Keeping Society in the Dark : On the Admissibility of Pretrial Nogotiations as Evidence in Court," Working Papers 91-24, University of Iowa, Department of Economics.
  2. Claude Fluet, 2003. "Enforcing Contracts: Should Courts Seek the Truth?," Journal of Institutional and Theoretical Economics (JITE), Mohr Siebeck, Tübingen, vol. 159(1), pages 49-, March.
  3. Song Shin, H, 1996. "Adversarial and Inquisitorial Procedures in Arbitration," Economics Papers 124, Economics Group, Nuffield College, University of Oxford.
  4. Bull, Jesse & Watson, Joel, 2004. "Evidence disclosure and verifiability," Journal of Economic Theory, Elsevier, vol. 118(1), pages 1-31, September.
  5. Dominique Demougin & Claude Fluet, 2002. "Preponderance of Evidence," CESifo Working Paper Series 725, CESifo Group Munich.
  6. 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.
  7. Lewis, Tracy R & Poitevin, Michel, 1997. "Disclosure of Information in Regulatory Proceedings," Journal of Law, Economics and Organization, Oxford University Press, vol. 13(1), pages 50-73, April.
  8. 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.
  9. Sandeep Baliga & Stephen Morris, 2000. "Coordination, Spillovers, and Cheap Talk," Discussion Papers 1301, Northwestern University, Center for Mathematical Studies in Economics and Management Science.
  10. 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.
  11. 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.
  12. 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.
  13. Dan Bernhardt & Ed Nosal, 2004. "Near-sighted Justice," Journal of Finance, American Finance Association, vol. 59(6), pages 2655-2684, December.
  14. 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.
  15. 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.
  16. 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.
  17. Joseph Farrell & Matthew Rabin, 1996. "Cheap Talk," Journal of Economic Perspectives, American Economic Association, vol. 10(3), pages 103-118, Summer.
  18. Bernardo, Antonio E & Talley, Eric & Welch, Ivo, 2000. "A Theory of Legal Presumptions," Journal of Law, Economics and Organization, Oxford University Press, vol. 16(1), pages 1-49, April.
  19. 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.
  20. 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.
  21. 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.
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Citations

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Cited by:
  1. 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.
  2. Winand Emons & Claude Fluet, 2009. "Adversarial versus Inquisitorial Testimony," Diskussionsschriften dp0904, Universitaet Bern, Departement Volkswirtschaft.
  3. 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).
  4. Bruno Deffains & Claude Fluet, 2013. "The Role of Social Image Concerns in the Design of Legal Regimes," Cahiers de recherche 1321, CIRPEE.
  5. 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.
  6. Marcel Boyer & Donatella Porrini, 2010. "Optimal Liability Sharing and Court Errors: An Exploratory Analysis," CESifo Working Paper Series 3073, CESifo Group Munich.
  7. 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.
  8. 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.
  9. Hugo Mialon & Sue Mialon, 2008. "The Economics of Search Warrants," Emory Economics 0810, Department of Economics, Emory University (Atlanta).
  10. Antonio Nicita & Matteo Rizzolli, 2012. "In Dubio Pro Reo. Behavioral explanations of pro-defendant bias in procedures," Department of Economics University of Siena 637, Department of Economics, University of Siena.

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