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The Burden of Proof in Civil Litigation: A Simple Model of Mechanism Design


Chris William Sanchirico


University of Pennsylvania Law School; University of Pennsylvania Wharton School - Business Economics and Public Policy Department

September 1, 1995

International Review of Law and Economics, 1997

Abstract:     
The existing literature on the burden of proof has sought the rule's raison d'etre solely within the court's problem of decision making under uncertainty. While this search has yielded many insights, it has been less successful in providing a compelling explanation for why uncertainty in the court's final assessment should act to the detriment of one party rather than the other. By viewing the problem as one of mechanism design, this paper provides one explanation for the asymmetry. A rule resembling the burden of proof emerges from the optimal design of a system of fact-finding tribunals in the presence of: i) limited resources for the resolution of private disputes, and ii) asymmetric information -- as between the parties and the court -- about the strength of cases prior to the court's having expended the resources necessary for a hearing. The paper shows that if the objective in designing a trial court system is accuracy of recovery granted, the "value" of having heard a case will depend in part on the certainty with which the court makes its final award. An optimally designed court system will then effectively filter-out "less valuable" cases by precommitting to a recovery policy in which plaintiffs recover nothing unless they prove their cases with a threshold degree of certainty.

Number of Pages in PDF File: 17

JEL Classification: K41

working papers series


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Date posted: February 20, 1996 ; Last revised: May 22, 2012

Suggested Citation

Sanchirico, Chris William, The Burden of Proof in Civil Litigation: A Simple Model of Mechanism Design (September 1, 1995). International Review of Law and Economics, 1997. Available at SSRN: http://ssrn.com/abstract=10020 or http://dx.doi.org/10.2139/ssrn.10020

Contact Information

Chris William Sanchirico (Contact Author)
University of Pennsylvania Law School ( email )
3501 Sansom Street
Philadelphia, PA 19104
United States
215-898-4220 (Phone)
HOME PAGE: http://www.law.upenn.edu/faculty/csanchir/
University of Pennsylvania Wharton School - Business Economics and Public Policy Department
3641 Locust Walk
Philadelphia, PA 19104-6372
United States
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