Games, Information and Evidence Production: With Application to English Legal History

Abstract:     
I study the basic evidentiary problem of how the legal system regulates primary activities on the basis of information supplied by interested and potentially dishonest parties. I then apply the framework to the historical evolution of Civil Procedure.

Evidence production is analyzed according to the interest of the party supplying it. When a party's presentation directly affects its own trial payoffs, the evidence it presents is useful only to the extent that evidence production costs tend to vary with behavior in the primary activity. Such production costs are a loss to the system. The less a party's interest in what her evidence will be used for, the less the role played by production costs; but the efficacy of relying on information from others is tied to the breadth of circumstances triggering suit and the number of parties to each action.

I show that an increase in the cost of legal process warrants increased reliance on the evidence supplied by interested parties via costly signaling. This result in hand, I suggest that increases in the opportunity cost of process, due to increases in labor productivity, were one factor in the gradual shift through English legal history from a system relying mostly on relatively disinterested observers (in the form of the ancient jury) to one relying mostly on costly evidence production by the parties themselves.

JEL Classification: K0, K4, K41, H0

Accepted Paper Series