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Optimal Proof Burdens, Deterrence, and the Chilling of Desirable Behavior

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  • Louis Kaplow

Abstract

The optimal stringency of the burden of proof is characterized in a model in which relaxing the proof burden enhances deterrence but also chills desirable behavior. The result are strikingly different from those in prior work that uses a simpler model in which individuals only choose whether to commit a harmful act (so only deterrence is at stake). Moreover, the qualitative differences between the optimal rule and the familiar preponderance of the evidence rule--and related rules that look to Bayesian posteriors--are great, much more so than revealed by prior work.

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  • Louis Kaplow, 2011. "Optimal Proof Burdens, Deterrence, and the Chilling of Desirable Behavior," American Economic Review, American Economic Association, vol. 101(3), pages 277-280, May.
    • Handle: RePEc:aea:aecrev:v:101:y:2011:i:3:p:277-80
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    File URL: http://www.aeaweb.org/articles.php?doi=10.1257/aer.101.3.277
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    References listed on IDEAS

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    1. Henrik Lando, 2002. "When is the Preponderance of the Evidence Standard Optimal?," The Geneva Papers on Risk and Insurance - Issues and Practice, Palgrave Macmillan;The Geneva Association, vol. 27(4), pages 602-608, October.
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    Cited by:

    1. Lang, Matthias, 2017. "Legal uncertainty as a welfare enhancing screen," European Economic Review, Elsevier, vol. 91(C), pages 274-289.
    2. Marie Obidzinski & Yves Oytana, 2020. "Presumption of Innocence and Deterrence," Journal of Institutional and Theoretical Economics (JITE), Mohr Siebeck, Tübingen, vol. 176(2), pages 377-412.
    3. Immordino, Giovanni & Polo, Michele, 2014. "Antitrust, legal standards and investment," International Review of Law and Economics, Elsevier, vol. 40(C), pages 36-50.
    4. Pavlova, Natalia & Shastitko, Andrey, 2016. "Leniency programs and socially beneficial cooperation: Effects of type I errors," Russian Journal of Economics, Elsevier, vol. 2(4), pages 375-401.
    5. Obidzinski, Marie & Oytana, Yves, 2019. "Identity errors and the standard of proof," International Review of Law and Economics, Elsevier, vol. 57(C), pages 73-80.
    6. Murat C Mungan & Marie Obidzinski & Yves Oytana, 2020. "Accuracy and Preferences for Legal Error," Working Papers hal-04229266, HAL.
    7. Lando, Henrik & Mungan, Murat C., 2018. "The effect of type-1 error on deterrence," International Review of Law and Economics, Elsevier, vol. 53(C), pages 1-8.
    8. Szalai, Ákos, 2013. "A bizonyítási teher megfordításának hatása kártérítési ügyekben [Reverse burden of proof in tort law]," Közgazdasági Szemle (Economic Review - monthly of the Hungarian Academy of Sciences), Közgazdasági Szemle Alapítvány (Economic Review Foundation), vol. 0(11), pages 1208-1233.
    9. Louis Kaplow, 2015. "Market Definition, Market Power," NBER Working Papers 21167, National Bureau of Economic Research, Inc.
    10. Alex Raskolnikov, 2020. "Criminal Deterrence: A Review of the Missing Literature," Supreme Court Economic Review, University of Chicago Press, vol. 28(1), pages 1-59.
    11. Kaplow, Louis, 2015. "Market definition, market power," International Journal of Industrial Organization, Elsevier, vol. 43(C), pages 148-161.
    12. Alice Guerra & Barbara Luppi & Francesco Parisi, 2022. "Do presumptions of negligence incentivize optimal precautions?," European Journal of Law and Economics, Springer, vol. 54(3), pages 349-368, December.
    13. Giovanni Immordino & Michele Polo, 2011. "Optimal Legal Standards in Antitrust: Traditional v. Innovative Industries," Working Papers 420, IGIER (Innocenzo Gasparini Institute for Economic Research), Bocconi University.
    14. Lisa Bruttel & Maximilian Andres, 2024. "Communicating Cartel Intentions," CEPA Discussion Papers 77, Center for Economic Policy Analysis.

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