On the Optimal Burden of Proof
Bibliographic Data
| ID | 10176322 |
|---|---|
| Authors | Louis Kaplow (National Bureau of Economic Research, corresponding author) |
| Year | 2011 |
| Volume | 119 |
| Issue | 6 |
| Pages | 1104-1140 |
| Publication date | 2011-12-01 |
| Open Access | No |
| Type | ARTICLE |
| Venue | Journal of Political Economy (JOURNAL) |
| Journal identifiers | ISSN: 0022-3808 • E-ISSN: 1537-534X |
| Publisher | University of Chicago Press (PUBLISHER • US) |
| DOI | 10.1086/664614 |
| OpenAlex | W1686104359 |
| Language | EN |
| Citations received | 12 |
| References cited | 16 |
The burden of proof is a central feature of adjudication, and analogues exist in many other settings. It constitutes an important but largely unappreciated policy instrument that interacts with the level of enforcement effort and magnitude of sanctions in controlling harmful activity. Models are examined in which the prospect of sanctions affects not only harmful acts but also benign ones, on account of the prospect of mistaken application of sanctions. Accordingly, determination of the optimal strength of the burden of proof, as well as optimal enforcement effort and sanctions, involves trading off deterrence and the chilling of desirable behavior, the latter being absent in previous work. The character of the optimum differs markedly from prior results and from conventional understandings of proof burdens, which can be understood as involving Bayesian posterior probabilities. Additionally, there are important divergences across models in which enforcement involves monitoring (posting officials to be on the lookout for harmful acts), investigation (inquiry triggered by the costless observation of particular harmful acts), and auditing (scrutiny of a random selection of acts). A number of extensions are analyzed, in one instance nullifying key results in prior work
Adjudication · Bayesian probability · Burden of proof · Business · Computer security · Deterrence (psychology · Deterrence theory · Economics · Enforcement · Law and economics · Political science · Public economics · Sanctions · Scrutiny · Work (physics · Artificial Intelligence · Computer Science · Engineering · Jury Decision Making Processes · Law · Law, Economics, and Judicial Systems · Legal and Constitutional Studies
How procedures shape substance
Learning by litigating
Good Cop, Bad Cop
Whistleblower rewards, false reports, and corporate fraud
Optimal standards of proof in antitrust
Legal errors and evidence rules with biased law enforcers
Does the Severity of Sanctions Influence Learning about Enforcement Policy? Experimental Evidence
Informational Properties of Liability Regimes
The Exclusionary Rule Revisited
Laudan’s error
The Blackstone ratio, modified
Juries in flux
| Citations per year | 1.5 |
|---|---|
| Citation span | 2018 - 2026 (9) |
| Highly cited | No |