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Costly Evidence And Systems Of Fact‐Finding

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  • Jesse Bull

Abstract

This paper compares the relative merits of adversarial and inquisitorial systems of civil procedure in the presence of evidence suppression. Each party has the incentive to suppress evidence that may damage her case, and to reveal any evidence that strengthens her case. I model the decision of a litigant to suppress evidence. The court conditions its action (transfers between the parties) upon the evidence which is revealed. Enforcement costs, which are the cost of suppression and the cost of requesting evidence, are a loss to the relationship and form the basis for my evaluation of the relative merits of each system. I find that neither system always outperforms the other. The strength of the inquisitorial system is that it allows for randomization over evidence requests, which leads to lower expected enforcement cost. Litigants cannot commit to randomize as they are motivated by the expected award in litigation. The strength of the adversarial system is that it sometimes allows litigants to utilize their information about the level of suppression.

Suggested Citation

  • Jesse Bull, 2009. "Costly Evidence And Systems Of Fact‐Finding," Bulletin of Economic Research, Wiley Blackwell, vol. 61(2), pages 103-125, April.
    • Handle: RePEc:bla:buecrs:v:61:y:2009:i:2:p:103-125
    DOI: 10.1111/j.1467-8586.2009.00305.x
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    Cited by:

    1. Claude Fluet & Thomas Lanzi, 2021. "Cross-Examination," Cahiers de recherche 2108, Centre de recherche sur les risques, les enjeux économiques, et les politiques publiques.
    2. Bull, Jesse & Watson, Joel, 2007. "Hard evidence and mechanism design," Games and Economic Behavior, Elsevier, vol. 58(1), pages 75-93, January.
    3. Manuel Willington, 2013. "Hold Up Under Costly Litigation and Imperfect Courts of Law," The Journal of Law, Economics, and Organization, Oxford University Press, vol. 29(5), pages 1023-1055, October.
    4. Bull Jesse, 2008. "Costly Evidence Production and the Limits of Verifiability," The B.E. Journal of Theoretical Economics, De Gruyter, vol. 8(1), pages 1-28, July.
    5. Jesse Bull & Joel Watson, 2019. "Statistical evidence and the problem of robust litigation," RAND Journal of Economics, RAND Corporation, vol. 50(4), pages 974-1003, December.
    6. Yeon-Koo Che & Sergei Severinov, 2017. "Disclosure and Legal Advice," American Economic Journal: Microeconomics, American Economic Association, vol. 9(2), pages 188-225, May.
    7. Chulyoung Kim, 2014. "Adversarial and Inquisitorial Procedures with Information Acquisition," The Journal of Law, Economics, and Organization, Oxford University Press, vol. 30(4), pages 767-803.

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