Presumption of Negligence

35 Pages Posted: 14 Mar 2015 Last revised: 14 Feb 2019

See all articles by Alice Guerra

Alice Guerra

University of Bologna - Department of Economics

Barbara Luppi

University of St. Thomas School of Law; Università degli studi di Modena e Reggio Emilia (UNIMORE) - Faculty of Business and Economics

Francesco Parisi

University of Minnesota - Law School; University of Bologna

Date Written: February 1, 2017

Abstract

This paper is about the incentive effects of legal presumptions. We analyze three interrelated effects of legal presumptions in a tort setting: (1) incentives to invest in evidence technology; (2) incentives to invest in care-type precautions; and (3) incentives to mitigate excessive activity levels. We suggest that the overlooked interaction between evidence and substantive tort rules is an important dimension that should inform the choice of legal presumptions. After considering the traditional factors that guide the choice of legal presumptions in tort law, we introduce the concept of “best discovery-bearer” to capture some of the factors that should guide the choice of legal presumptions. According to our analysis, the best-discovery-bearer criterion requires a shift of the burden of proof to the parties (a) who can most effectively invest in evidence technology; (b) whose precautions are more inelastic relative to discovery errors; and (c) who are not already burdened by the residual liability.

Keywords: burden of proof, cheapest evidence-producer, best discovery-bearer

JEL Classification: K13, K32

Suggested Citation

Guerra, Alice and Luppi, Barbara and Parisi, Francesco, Presumption of Negligence (February 1, 2017). Minnesota Legal Studies Research Paper No. 15-08. Available at SSRN: https://ssrn.com/abstract=2577416 or http://dx.doi.org/10.2139/ssrn.2577416

Alice Guerra

University of Bologna - Department of Economics ( email )

Bologna
Italy

Barbara Luppi

University of St. Thomas School of Law

2115 Summit Avenue
Saint Paul, MN 55105
United States

Università degli studi di Modena e Reggio Emilia (UNIMORE) - Faculty of Business and Economics ( email )

Viale Berengario 51
41100 Modena, Modena 41100
Italy

Francesco Parisi (Contact Author)

University of Minnesota - Law School ( email )

229 19th Avenue South
Minneapolis, MN 55455
United States

University of Bologna ( email )

Piazza Scaravilli 1
40126 Bologna, fc 47100
Italy

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