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A note on burdens of proof in civil litigation

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  • Jeong-Yoo Kim

    (Kyung Hee University)

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.

Suggested Citation

  • Jeong-Yoo Kim, 2016. "A note on burdens of proof in civil litigation," European Journal of Law and Economics, Springer, vol. 42(2), pages 325-337, October.
    • Handle: RePEc:kap:ejlwec:v:42:y:2016:i:2:d:10.1007_s10657-015-9496-x
    DOI: 10.1007/s10657-015-9496-x
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    References listed on IDEAS

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    1. Grossman, Sanford J, 1981. "The Informational Role of Warranties and Private Disclosure about Product Quality," Journal of Law and Economics, University of Chicago Press, vol. 24(3), pages 461-483, December.
    2. Hyun Song Shin, 1998. "Adversarial and Inquisitorial Procedures in Arbitration," RAND Journal of Economics, The RAND Corporation, vol. 29(2), pages 378-405, Summer.
    3. Paul R. Milgrom, 1981. "Good News and Bad News: Representation Theorems and Applications," Bell Journal of Economics, The RAND Corporation, vol. 12(2), pages 380-391, Autumn.
    4. Hay, Bruce L & Spier, Kathryn E, 1997. "Burdens of Proof in Civil Litigation: An Economic Perspective," The Journal of Legal Studies, University of Chicago Press, vol. 26(2), pages 413-431, June.
    5. Steven Shavell, 1994. "Acquisition and Disclosure of Information Prior to Sale," RAND Journal of Economics, The RAND Corporation, vol. 25(1), pages 20-36, Spring.
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    More about this item

    Keywords

    Burden of proof; Negligence rule; Disclosure cost;
    All these keywords.

    JEL classification:

    • K13 - Law and Economics - - Basic Areas of Law - - - Tort Law and Product Liability; Forensic Economics

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