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Costly Evidence And Systems Of Fact-Finding

  • Jesse Bull

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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Article provided by Wiley Blackwell in its journal Bulletin of Economic Research.

Volume (Year): 61 (2009)
Issue (Month): 2 (04)
Pages: 103-125

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Handle: RePEc:bla:buecrs:v:61:y:2009:i:2:p:103-125
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  1. 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.
  2. 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.
  3. A. Mitchell Polinsky & Yeon-Koo Che, 1991. "Decoupling Liability: Optimal Incentives for Care and Litigation," RAND Journal of Economics, The RAND Corporation, vol. 22(4), pages 562-570, Winter.
  4. 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.
  5. Shin, Hyun Song, 1997. "Adversarial and Inquisitorial Procedures in Arbitration," CEPR Discussion Papers 1722, C.E.P.R. Discussion Papers.
  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. 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.
  8. Antonio Bernardo & Eric L. Talley & Ivo Welch, 1999. "A Theory of Legal Presumptions," Yale School of Management Working Papers ysm118, Yale School of Management.
  9. 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.
  10. Chris Sanchirico, . "Evidence Tampering," Scholarship at Penn Law upenn_wps-1011, University of Pennsylvania Law School.
  11. 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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