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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 appropriate incentives for potential tort-feasors to exert care, when evidence about care is imperfect and may be distorted by the parties. Efficiency is shown to be consistent with courts adjudicating on the basis of the preponderance of evidence standard of proof together with common law exclusionary rules. Inefficient equilibria may nevertheless also arise under these rules. Directing courts as to the assignment of the burden of proof is then useful as a coordination device. Alternatively, burden of proof guidelines are unnecessary if courts are allowed a more active or inquisitorial role, by contrast with that of passive adjudicator.

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File URL: http://www.cirpee.org/fileadmin/documents/Cahiers_2006/CIRPEE06-33.pdf
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Paper provided by CIRPEE in its series Cahiers de recherche with number 0633.

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Date of creation: 2006
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Handle: RePEc:lvl:lacicr:0633
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  3. Dominique Demougin & Claude Fluet, 2002. "Preponderance of Evidence," CIRANO Working Papers 2002s-61, CIRANO.
  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.
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  8. Parisi, Francesco, 2002. "Rent-seeking through litigation: adversarial and inquisitorial systems compared," International Review of Law and Economics, Elsevier, vol. 22(2), pages 193-216, August.
  9. Schrag, Joel & Scotchmer, Suzanne, 1994. "Crime and Prejudice: The Use of Character Evidence in Criminal Trials," Journal of Law, Economics and Organization, Oxford University Press, vol. 10(2), pages 319-42, October.
  10. Sandeep Baliga & Stephen Morris, 2000. "Coordination, Spillovers, and Cheap Talk," Discussion Papers 1301, Northwestern University, Center for Mathematical Studies in Economics and Management Science.
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  12. Song Shin, H, 1996. "Adversarial and Inquisitorial Procedures in Arbitration," Economics Papers 124, Economics Group, Nuffield College, University of Oxford.
  13. 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.
  14. 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.
  15. 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.
  16. Joel L. Schrag, 1999. "Managerial Judges: An Economic Analysis of the Judicial Management of Legal Discovery," RAND Journal of Economics, The RAND Corporation, vol. 30(2), pages 305-323, Summer.
  17. Claude Fluet, 2002. "Enforcing Contracts: Should Courts Seek the Truth?," CIRANO Working Papers 2002s-76, CIRANO.
  18. Joseph Farrell & Matthew Rabin, 1996. "Cheap Talk," Journal of Economic Perspectives, American Economic Association, vol. 10(3), pages 103-118, Summer.
  19. Palumbo, Giuliana, 2001. "Trial procedures and optimal limits on proof-taking10," International Review of Law and Economics, Elsevier, vol. 21(3), pages 309-327, September.
  20. 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.
  21. Henrik Lando, 2002. "When is the Preponderance of the Evidence Standard Optimal?," The Geneva Papers on Risk and Insurance - Issues and Practice, Palgrave Macmillan, vol. 27(4), pages 602-608, October.
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