Abstract

http://ssrn.com/abstract=1984694
 
 

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On the Optimal Burden of Proof


Louis Kaplow


Harvard Law School; National Bureau of Economic Research (NBER)

January 13, 2012

Journal of Political Economy, Forthcoming
Harvard Public Law Working Paper No. 12-13
Harvard Law School, John M. Olin Center for Law, Economics and Business Discussion Paper No. 712

Abstract:     
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.

Number of Pages in PDF File: 42

Keywords: burden of proof, law enforcement, type 1 and type 2 errors

JEL Classification: D81, K14, K41, K42

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Date posted: January 14, 2012 ; Last revised: September 24, 2013

Suggested Citation

Kaplow, Louis, On the Optimal Burden of Proof (January 13, 2012). Journal of Political Economy, Forthcoming; Harvard Public Law Working Paper No. 12-13; Harvard Law School, John M. Olin Center for Law, Economics and Business Discussion Paper No. 712. Available at SSRN: http://ssrn.com/abstract=1984694

Contact Information

Louis Kaplow (Contact Author)
Harvard Law School ( email )
1575 Massachusetts Avenue
Cambridge, MA 02138
United States
617-495-4101 (Phone)
617-496-4880 (Fax)
HOME PAGE: http://www.law.harvard.edu/faculty/directory/facdir.php?id=32&show=bibliography
National Bureau of Economic Research (NBER)
1050 Massachusetts Avenue
Cambridge, MA 02138
United States
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