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Preponderance of Evidence

  • Dominique Demougin
  • Claude Fluet

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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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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  1. Dominique Demougin & Claude Fluet, 2002. "Preponderance of Evidence," Cahiers de recherche CREFE / CREFE Working Papers 150, CREFE, Université du Québec à Montréal.
  2. Paul R. Milgrom & John Roberts, 1985. "Relying on the Information of Interested Parties," Cowles Foundation Discussion Papers 749, Cowles Foundation for Research in Economics, Yale University.
  3. 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, vol. 5(1), pages 99-108, Spring.
  4. 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.
  5. Shavell, Steven, 1989. "Optimal sanctions and the incentive to provide evidence to legal tribunals," International Review of Law and Economics, Elsevier, vol. 9(1), pages 3-11, June.
  6. 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, vol. 10(2), pages 343-59, October.
  7. Hyun Song Shin, 1998. "Adversarial and Inquisitorial Procedures in Arbitration," RAND Journal of Economics, The RAND Corporation, vol. 29(2), pages 378-405, Summer.
  8. 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, vol. 12(1), pages 257-76, April.
  9. Hylton, Keith N, 1990. "Costly Litigation and Legal Error under Negligence," Journal of Law, Economics and Organization, Oxford University Press, vol. 6(2), pages 433-52, Fall.
  10. 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, vol. 16(2), pages 365-94, October.
  11. Kaplow, Louis & Shavell, Steven, 1994. "Accuracy in the Determination of Liability," Journal of Law and Economics, University of Chicago Press, vol. 37(1), pages 1-15, April.
  12. Shin Hyun Song, 1994. "The Burden of Proof in a Game of Persuasion," Journal of Economic Theory, Elsevier, vol. 64(1), pages 253-264, October.
  13. Schauer, Frederick & Zeckhauser, Richard, 1996. "On the Degree of Confidence for Adverse Decisions," The Journal of Legal Studies, University of Chicago Press, vol. 25(1), pages 27-52, January.
  14. Sanchirico, Chris William, 1997. "The burden of proof in civil litigation: A simple model of mechanism design," International Review of Law and Economics, Elsevier, vol. 17(3), pages 431-447, September.
  15. Daniel J. Seidmann & Eyal Winter, 1997. "Strategic Information Transmission with Verifiable Messages," Econometrica, Econometric Society, vol. 65(1), pages 163-170, January.
  16. 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.
  17. Craswell, Richard & Calfee, John E, 1986. "Deterrence and Uncertain Legal Standards," Journal of Law, Economics and Organization, Oxford University Press, vol. 2(2), pages 279-303, Fall.
  18. Robert Cooter & Winand Emons, 2000. "Truth-Revealing Mechanisms for Courts," Econometric Society World Congress 2000 Contributed Papers 0211, Econometric Society.
  19. 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.
  20. Shavell, S., 1986. "The judgment proof problem," International Review of Law and Economics, Elsevier, vol. 6(1), pages 45-58, June.
  21. 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, vol. 19(2), pages 275-293, June.
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