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Law, Economics, and the Burden(s) of Proof

Research Handbook on the Economics of Torts, J. Arlen, ed., Forthcoming

UC Berkeley Public Law Research Paper No. 2170469

43 Pages Posted: 4 Nov 2012 Last revised: 16 Feb 2016

Eric L. Talley

Columbia University - School of Law

Date Written: November 2, 2012

Abstract

This chapter presents an overview of the theoretical law and economics literature on the burden of proof within tort law. I begin by clarifying core legal definitions within this topic, demonstrating that the burden of proof actually refers to at least five doctrinal concepts that substantially overlap but are not completely interchangeable. I then provide a conceptual roadmap for analyzing the major extant contributions to this topic within theoretical law and economics, emphasizing three key dimensions that organize them: (a) where they fall in the positive-normative spectrum; (b) what type of underlying modeling framework they employ (ranging from decision theoretic to game theoretic to mechanism design); and (c) whether they focus on litigation activity or primary activities (or both). In the aggregate, the resulting theoretical landscape is a complex one, yielding a number of interesting insights. Yet it still suffers from having no single unified theory. I conclude by offering a number of recommendations about where applied law and economics scholars interested this topic could direct their research efforts.

Keywords: Burden of Proof, Presumptions, Evidence, Litigation

JEL Classification: K00, K13, K41

Suggested Citation

Talley, Eric L., Law, Economics, and the Burden(s) of Proof (November 2, 2012). Research Handbook on the Economics of Torts, J. Arlen, ed., Forthcoming ; UC Berkeley Public Law Research Paper No. 2170469. Available at SSRN: https://ssrn.com/abstract=2170469 or http://dx.doi.org/10.2139/ssrn.2170469

Eric L. Talley (Contact Author)

Columbia University - School of Law ( email )

435 West 116th Street
New York, NY 10025
United States

HOME PAGE: http://www.erictalley.com

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