Information and the Aim of Adjudication: Truth or Consequences?

63 Pages Posted: 4 Mar 2015

See all articles by Louis Kaplow

Louis Kaplow

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

Date Written: February 2015

Abstract

Adjudication is fundamentally about information, usually concerning individuals’ previous or proposed behavior. Legal system design is challenging because information ordinarily is costly and imperfect. This Article analyzes a broad array of system features, asking throughout whether design should aim at the truth or at consequences, how these approaches may differ, and what general lessons may be drawn from the comparison. It will emerge that the differences in approach are often large and their character is sometimes counterintuitive. Accordingly, system engineers concerned with social welfare need to aim explicitly at consequences. This message is not one opposed to truth per se but rather a strong admonition: it is dangerous to be attached to the alluring view that adjudication is primarily about generating results most in accord with the truth of the matter at hand.

Keywords: Adjudication, Legal System Design, Rules versus Standards, Precision of Legal Rules, Burden of Proof, Accuracy in Adjudication, Legal Procedure, Litigation

JEL Classification: D81, H43, K41, K42

Suggested Citation

Kaplow, Louis, Information and the Aim of Adjudication: Truth or Consequences? (February 2015). Stanford Law Review (2015), Forthcoming. Available at SSRN: https://ssrn.com/abstract=2571025

Louis Kaplow (Contact Author)

Harvard Law School ( email )

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HOME PAGE: http://www.law.harvard.edu/faculty/directory/facdir.php?id=32&show=bibliography

National Bureau of Economic Research (NBER)

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