Deterrence vs Judicial Error: a Comparative View of Standards of Proof
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.
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- Dominique Demougin & Claude Fluet, 2002.
"Preponderance of Evidence,"
CIRANO Working Papers
- Claude Fluet, 2002.
"Enforcing Contracts: Should Courts Seek the Truth?,"
Cahiers de recherche
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- 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.
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