A note on burdens of proof in civil litigation

Jeong-Yoo Kim

European Journal of Law and Economics, 2016, vol. 42, issue 2, No 6, 325-337

Abstract: Abstract It has been widely believed that who bears the burden of proof significantly affects the incentives of the legal parties. In particular, Hay and Spier (J Legal Stud 26:413–431, 1997) argues that if legal parties have a commonly accessible body of evidence (perfectly correlated pieces of evidence), the party who bears the burden of proof will present the evidence if and only if the evidence supports his position, while the other party (without the burden) will refrain from presenting it regardless of whether the evidence supports his position. In this paper, I claim that the result will be dramatically changed if the pieces of evidence that each party possesses are not perfectly correlated. I show that each party will present the evidence that supports his position whenever available, regardless of the burden of proof assignment. This implies that allocating the burden of proof does not matter in terms of information elicitation.

Keywords: Burden of proof; Negligence rule; Disclosure cost (search for similar items in EconPapers)
JEL-codes: K13 (search for similar items in EconPapers)
Date: 2016
References: View references in EconPapers View complete reference list from CitEc
Citations:

Downloads: (external link)
http://link.springer.com/10.1007/s10657-015-9496-x Abstract (text/html)
Access to the full text of the articles in this series is restricted.

Related works:
This item may be available elsewhere in EconPapers: Search for items with the same title.

Export reference: BibTeX RIS (EndNote, ProCite, RefMan) HTML/Text

Persistent link: https://EconPapers.repec.org/RePEc:kap:ejlwec:v:42:y:2016:i:2:d:10.1007_s10657-015-9496-x

Ordering information: This journal article can be ordered from
http://www.springer.com/journal/10657

DOI: 10.1007/s10657-015-9496-x

Access Statistics for this article

European Journal of Law and Economics is currently edited by Jürgen Georg Backhaus, Giovanni B. Ramello and Alain Marciano

More articles in European Journal of Law and Economics from Springer
Bibliographic data for series maintained by Sonal Shukla () and Springer Nature Abstracting and Indexing ().