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Deterrence vs Judicial Error: a Comparative View of Standards of Proof


  • Dominique Demougin
  • Claude Fluet


We argue that the common law standard of proof, given the rules of evidence, does not minimize expected error as usually argued in the legal literature, but may well be efficient from the standpoint of providing maximal incentives for socially desirable behavior. By contrast, civil law's higher but somewhat imprecise standard may be interpreted as reflecting a tradeoff between providing incentives and avoiding judicial error per se. In our model, the optimal judicial system has rules resembling those in the common law when providing incentives is paramount. When greater weight is given to avoiding error, the optimal system has civilian features.

Suggested Citation

  • Dominique Demougin & Claude Fluet, 2004. "Deterrence vs Judicial Error: a Comparative View of Standards of Proof," Cahiers de recherche 0418, CIRPEE.
  • Handle: RePEc:lvl:lacicr:0418

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    References listed on IDEAS

    1. Demougin, Dominique & Fluet, Claude, 2006. "Preponderance of evidence," European Economic Review, Elsevier, vol. 50(4), pages 963-976, May.
    2. 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.
    3. Claude Fluet, 2003. "Enforcing Contracts: Should Courts Seek the Truth?," Journal of Institutional and Theoretical Economics (JITE), Mohr Siebeck, Tübingen, vol. 159(1), pages 1-49, March.
    4. 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.
    5. Shavell, S., 1986. "The judgment proof problem," International Review of Law and Economics, Elsevier, vol. 6(1), pages 45-58, June.
    6. Kaplow, Louis & Shavell, Steven, 1999. "The Conflict between Notions of Fairness and the Pareto Principle," American Law and Economics Review, Oxford University Press, vol. 1(1-2), pages 63-77, Fall.
    7. 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 343-359, October.
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    Cited by:

    1. Antonio Nicita & Matteo Rizzolli, 2014. "In Dubio Pro Reo. Behavioral Explanations of Pro-defendant Bias in Procedures," CESifo Economic Studies, CESifo, vol. 60(3), pages 554-580.
    2. Christoph Engel, 2006. "The Difficult Reception of Rigorous Descriptive Social Science in the Law," Discussion Paper Series of the Max Planck Institute for Research on Collective Goods 2006_1, Max Planck Institute for Research on Collective Goods.
    3. Christoph Engel, 2008. "Preponderance of the Evidence versus Intime Conviction. A Behavioural Perspective on a Conflict between American and Continental European Law," Discussion Paper Series of the Max Planck Institute for Research on Collective Goods 2008_33, Max Planck Institute for Research on Collective Goods.
    4. Joan Ramon Borrell & Juan Luis Jiménez, 2008. "The drivers of antitrust effectiveness," Hacienda Pública Española, IEF, vol. 185(2), pages 69-88, July.

    More about this item


    Standard of proof; burden of proof; common law; civil law; evidentiary rules;

    JEL classification:

    • D8 - Microeconomics - - Information, Knowledge, and Uncertainty
    • K4 - Law and Economics - - Legal Procedure, the Legal System, and Illegal Behavior

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