On the Optimal Burden of Proof

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

42 Pages Posted: 14 Jan 2012 Last revised: 7 Jan 2015

Louis Kaplow

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

Multiple version iconThere are 2 versions of this paper

Date Written: January 13, 2012

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.

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

JEL Classification: D81, K14, K41, K42

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: https://ssrn.com/abstract=1984694

Louis Kaplow (Contact Author)

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