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Preponderance of Evidence

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  • Dominique Demougin
  • Claude Fluet

Abstract

This paper analyzes the incentive properties of the standard and burden of proof for a finding of negligence, when evidence is imperfect and rests with the parties. We show that the “preponderance of evidence' standard provides maximal incentives to exert care. This holds even though litigants may have unequal access to evidence and distort information. The optimal assignment of the burden of proof follows from the principle underlying the standard of proof. Our main results are derived in a mechanism design framework, but we also consider implementation as a sequential equilibrium with the court as a player in the game.

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File URL: http://www.cesifo-group.de/portal/page/portal/DocBase_Content/WP/WP-CESifo_Working_Papers/wp-cesifo-2002/wp-cesifo-2002-05/725.pdf
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Bibliographic Info

Paper provided by CESifo Group Munich in its series CESifo Working Paper Series with number 725.

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Date of creation: 2002
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Handle: RePEc:ces:ceswps:_725

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Keywords: negligence; standard of proof; tort rules; burden of proof; deterrence;

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References

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  1. Froeb, Luke M & Kobayashi, Bruce H, 1996. "Naive, Biased, Yet Bayesian: Can Juries Interpret Selectively Produced Evidence?," Journal of Law, Economics and Organization, Oxford University Press, Oxford University Press, vol. 12(1), pages 257-76, April.
  2. Dominique Demougin & Claude Fluet, 2002. "Preponderance of Evidence," CIRANO Working Papers, CIRANO 2002s-61, CIRANO.
  3. Shavell, S., 1986. "The judgment proof problem," International Review of Law and Economics, Elsevier, Elsevier, vol. 6(1), pages 45-58, June.
  4. 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.
  5. Shin, Hyun Song, 1997. "Adversarial and Inquisitorial Procedures in Arbitration," CEPR Discussion Papers, C.E.P.R. Discussion Papers 1722, C.E.P.R. Discussion Papers.
  6. Antonio Bernardo & Eric L. Talley & Ivo Welch, 1999. "A Theory of Legal Presumptions," Yale School of Management Working Papers, Yale School of Management ysm118, Yale School of Management.
  7. Hylton, Keith N, 1990. "Costly Litigation and Legal Error under Negligence," Journal of Law, Economics and Organization, Oxford University Press, Oxford University Press, vol. 6(2), pages 433-52, Fall.
  8. Louis Kaplow & Steven Shavell, 1992. "Accuracy in the Determination of Liability," NBER Working Papers 4203, National Bureau of Economic Research, Inc.
  9. Robert Cooter & Winand Emons, 2003. "Truth-Revealing Mechanisms for Courts," Journal of Institutional and Theoretical Economics (JITE), Mohr Siebeck, Tübingen, Mohr Siebeck, Tübingen, vol. 159(2), pages 259-, June.
  10. Lewis, Tracy R. & Sappington, David E. M., 1999. "Using decoupling and deep pockets to mitigate judgment-proof problems1," International Review of Law and Economics, Elsevier, Elsevier, vol. 19(2), pages 275-293, June.
  11. 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, University of Chicago Press, vol. 26(2), pages 413-31, June.
  12. Craswell, Richard & Calfee, John E, 1986. "Deterrence and Uncertain Legal Standards," Journal of Law, Economics and Organization, Oxford University Press, Oxford University Press, vol. 2(2), pages 279-303, Fall.
  13. 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.
  14. Shavell, Steven, 1989. "Optimal sanctions and the incentive to provide evidence to legal tribunals," International Review of Law and Economics, Elsevier, Elsevier, vol. 9(1), pages 3-11, June.
  15. Polinsky, A Mitchell & Shavell, Steven, 1989. "Legal Error, Litigation, and the Incentive to Obey the Law," Journal of Law, Economics and Organization, Oxford University Press, Oxford University Press, vol. 5(1), pages 99-108, Spring.
  16. Sanchirico, Chris William, 1997. "The burden of proof in civil litigation: A simple model of mechanism design," International Review of Law and Economics, Elsevier, Elsevier, vol. 17(3), pages 431-447, September.
  17. Schauer, Frederick & Zeckhauser, Richard, 1996. "On the Degree of Confidence for Adverse Decisions," The Journal of Legal Studies, University of Chicago Press, University of Chicago Press, vol. 25(1), pages 27-52, January.
  18. Daniel J. Seidmann & Eyal Winter, 1997. "Strategic Information Transmission with Verifiable Messages," Econometrica, Econometric Society, Econometric Society, vol. 65(1), pages 163-170, January.
  19. Shin Hyun Song, 1994. "The Burden of Proof in a Game of Persuasion," Journal of Economic Theory, Elsevier, Elsevier, vol. 64(1), pages 253-264, October.
  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, Oxford University Press, vol. 16(2), pages 365-94, October.
  21. Davis, Michael L, 1994. "The Value of Truth and the Optimal Standard of Proof in Legal Disputes," Journal of Law, Economics and Organization, Oxford University Press, Oxford University Press, vol. 10(2), pages 343-59, October.
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