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On the Optimal Burden of Proof

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  • Louis Kaplow

Abstract

The burden of proof, a central feature of adjudication and other decision-making contexts, constitutes an important but largely unappreciated policy instrument. The optimal strength of the burden of proof, as well as optimal enforcement effort and sanctions, involves trading off deterrence and the chilling of desirable behavior, the latter being absent in previous work. The character of the optimum differs markedly from prior results and from conventional understandings of proof burdens. There are important divergences across models in which enforcement involves monitoring, investigation, and auditing. A number of extensions are analyzed, in one instance nullifying key results in prior work.

Suggested Citation

  • Louis Kaplow, 2011. "On the Optimal Burden of Proof," Journal of Political Economy, University of Chicago Press, vol. 119(6), pages 1104-1140.
  • Handle: RePEc:ucp:jpolec:doi:10.1086/664614
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    1. A. Mitchell Polinsky & Steven Shavell (ed.), 2007. "Handbook of Law and Economics," Handbook of Law and Economics, Elsevier, edition 1, volume 2, number 2.
    2. 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.
    3. Henrik Lando, 2002. "When is the Preponderance of the Evidence Standard Optimal?," The Geneva Papers on Risk and Insurance - Issues and Practice, Palgrave Macmillan;The Geneva Association, vol. 27(4), pages 602-608, October.
    4. A. Mitchell Polinsky & Steven Shavell (ed.), 2007. "Handbook of Law and Economics," Handbook of Law and Economics, Elsevier, edition 1, volume 1, number 1.
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    Cited by:

    1. Immordino, Giovanni & Polo, Michele, 2014. "Antitrust, legal standards and investment," International Review of Law and Economics, Elsevier, vol. 40(C), pages 36-50.
    2. Juwon Kwak, 2016. "Optimal antitrust enforcement: information cost and deterrent effect," European Journal of Law and Economics, Springer, vol. 41(2), pages 371-391, April.
    3. Andreea Cosnita-Langlais & Jean-Philippe Tropeano, 2014. "Institutional Design and Antitrust Evidentiary Standards," Post-Print hal-01668447, HAL.
    4. Campos, Sergio J. & Cotton, Christopher S. & Li, Cheng, 2015. "Deterrence effects under Twombly: On the costs of increasing pleading standards in litigation," International Review of Law and Economics, Elsevier, vol. 44(C), pages 61-71.
    5. repec:eee:pubeco:v:155:y:2017:i:c:p:64-73 is not listed on IDEAS
    6. Mungan, Murat C., 2015. "Wrongful convictions and the punishment of attempts," International Review of Law and Economics, Elsevier, vol. 42(C), pages 79-87.
    7. Allain, Marie-Laure & Boyer, Marcel & Kotchoni, Rachidi & Ponssard, Jean-Pierre, 2015. "Are cartel fines optimal? Theory and evidence from the European Union," International Review of Law and Economics, Elsevier, vol. 42(C), pages 38-47.
    8. Kim, Chulyoung, 2015. "Judge's Gate-Keeping Power and Deterrence of Negligent Acts: An Economic Analysis of Twombly and Iqbal," MPRA Paper 69836, University Library of Munich, Germany.
    9. Louis Kaplow, 2015. "Market Definition, Market Power," NBER Working Papers 21167, National Bureau of Economic Research, Inc.
    10. Kaplow, Louis, 2015. "Market definition, market power," International Journal of Industrial Organization, Elsevier, vol. 43(C), pages 148-161.
    11. Lundberg, Alexander, 2016. "Sentencing discretion and burdens of proof," International Review of Law and Economics, Elsevier, vol. 46(C), pages 34-42.
    12. Bruno Deffains & Claude Fluet, 2013. "The Role of Social Image Concerns in the Design of Legal Regimes," Cahiers de recherche 1321, CIRPEE.

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