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Rules of proof, courts, and incentives

  • Dominique Demougin
  • Claude Fluet

We analyze the design of legal principles and procedures for court decision making in civil litigation. The objective is the provision of incentives for potential tort-feasors to exert care when evidence is imperfect and may be distorted by the parties. Efficiency is consistent with courts adjudicating on the basis of the preponderance of evidence standard together with common law exclusionary rules. Inefficient equilibria may nevertheless also arise under these rules. Burden of proof guidelines are then useful as a coordination device. Alternatively, guidelines are unnecessary if courts are allowed a more active or inquisitorial role in contrast to that of passive adjudicator. Copyright (c)2008, RAND.

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Article provided by RAND Corporation in its journal The RAND Journal of Economics.

Volume (Year): 39 (2008)
Issue (Month): 1 ()
Pages: 20-40

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Handle: RePEc:bla:randje:v:39:y:2008:i:1:p:20-40
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  1. 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.
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  4. 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.
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  17. 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.
  18. 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.
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