Deterrence Vs Judicial Error: A Comparative View of Standards of Proof
Journal of Institutional and Theoretical Economics, Vol. 161, No. 2, pp. 193-206, 2004
1 Pages Posted: 6 Sep 2004 Last revised: 23 Jul 2009
Date Written: July 1, 2004
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.
Keywords: Standard of proof, burden of proof, common law, civil law, evidentiary rules
JEL Classification: D8, K4
Suggested Citation: Suggested Citation