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Costly Evidence and Systems of Fact Finding

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  • Jesse Bull

    ()
    (Department of Economics, Florida International University)

Abstract

This paper compares the relative merits of adversarial and inquisitorial systems of civil procedure in the presence of evidence suppression. Each party has the incentive to suppress evidence that may damage her case, and to reveal any evidence that strengthens her case. I model the decision of a litigant to suppress evidence. The court conditions its action (transfers between the parties) upon the evidence which is revealed. Enforcement costs, which are the cost of suppression and the cost of requesting evidence, are a loss to the relationship and form the basis for my evaluation of the relative merits of each system. I find that neither system always outperforms the other. The strength of the inquisitorial system is that it allows for randomization over evidence requests, which leads to lower expected enforcement cost. Litigants cannot commit to randomize as they are motivated by the expected award in litigation. The strength of the adversarial system is that it sometimes allows litigants to utilize their information about the level of suppression.

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File URL: http://casgroup.fiu.edu/pages/docs/2244/1275230206_06-12.pdf
File Function: Revised version, 2006
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Bibliographic Info

Paper provided by Florida International University, Department of Economics in its series Working Papers with number 0612.

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Length: 20 pages
Date of creation: Sep 2006
Date of revision:
Handle: RePEc:fiu:wpaper:0612

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Web page: http://casgroup.fiu.edu/Economics/
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Keywords: contracts; litigation; fact finding;

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References

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  1. Bernstein, Lisa, 1992. "Opting Out of the Legal System: Extralegal Contractual Relations in the Diamond Industry," The Journal of Legal Studies, University of Chicago Press, vol. 21(1), pages 115-57, January.
  2. A. Mitchell Polinsky & Yeon-Koo Che, 1993. "Decoupling Liability: Optimal Incentives for Care and Litigation," NBER Working Papers 3634, National Bureau of Economic Research, Inc.
  3. Bull, Jesse & Watson, Joel, 2004. "Evidence disclosure and verifiability," Journal of Economic Theory, Elsevier, vol. 118(1), pages 1-31, September.
  4. Antonio Bernardo & Eric L. Talley & Ivo Welch, 1999. "A Theory of Legal Presumptions," Yale School of Management Working Papers ysm118, Yale School of Management.
  5. Hatzis, Aristides N., 2002. "Having the cake and eating it too: efficient penalty clauses in Common and Civil contract law," International Review of Law and Economics, Elsevier, vol. 22(4), pages 381-406, December.
  6. A. Mitchell Polinsky & Steven Shavell, 1999. "The Economic Theory of Public Enforcement of Law," NBER Working Papers 6993, National Bureau of Economic Research, Inc.
  7. Chris Sanchirico, . "Evidence Tampering," Scholarship at Penn Law upenn_wps-1011, University of Pennsylvania Law School.
  8. Cooter, Robert D & Rubinfeld, Daniel L, 1994. "An Economic Model of Legal Discovery," The Journal of Legal Studies, University of Chicago Press, vol. 23(1), pages 435-63, January.
  9. Froeb, Luke M. & Kobayashi, Bruce H., 2001. "Evidence production in adversarial vs. inquisitorial regimes," Economics Letters, Elsevier, vol. 70(2), pages 267-272, February.
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Cited by:
  1. Bull, Jesse & Watson, Joel, 2007. "Hard evidence and mechanism design," Games and Economic Behavior, Elsevier, vol. 58(1), pages 75-93, January.
  2. Manuel Willington, 2013. "Hold Up Under Costly Litigation and Imperfect Courts of Law," Journal of Law, Economics and Organization, Oxford University Press, vol. 29(5), pages 1023-1055, October.

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