Rules of Proof, Courts, and Incentives

Dominique Demougin () and Claude Fluet ()

No CESifo Working Paper No. 2014, CESifo Working Paper Series from CESifo Group Munich

Abstract: 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.

Keywords: evidentiary rules; standard of proof; burden of proof; inquisitorial; adversarial; discovery; deterrence (search for similar items in EconPapers)
JEL-codes: D80 K40 (search for similar items in EconPapers)
Date: 2007
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Related works:
Working Paper: Rules of Proof, Courts, and Incentives (2006)
Journal Article: Rules of proof, courts, and incentives (2008)
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