Do Presumptions of Negligence Incentivize Optimal Precautions?

European Journal of Law and Economics 2022

20 Pages Posted: 6 Mar 2019 Last revised: 22 Mar 2022

See all articles by Alice Guerra

Alice Guerra

University of Bologna - Department of Economics

Barbara Luppi

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

Francesco Parisi

University of Minnesota - Law School; University of Bologna

Date Written: March 21, 2022

Abstract

In most jurisdictions, the burden of producing evidence on a contested issue traditionally falls
on plaintiffs. In a tort claim, this de facto creates a presumption of non-negligence in favor of
injurers. Some legal systems in Europe placed renewed attention on “presumed liability” rules,
which instead create a presumption of negligence against injurers. In this paper, we analyze the
effects of alternative legal presumptions on parties’ care incentives in the presence of discovery
errors. Differently from what was suggested in prior research, we show that legal presumptions
do affect primary behavior: presuming that the injurer was (not) negligent strengthens (weakens)
his care incentives in situations where the plaintiff faces probatory difficulties. We analyze how
these effects should inform the choice of evidence regimes to improve the robustness of liability
rules, and to minimize the dilutive effect of imperfect discovery on individuals’ care incentives.

Keywords: legal presumption; presumed liability; care incentives; discovery errors

JEL Classification: K13, D83

Suggested Citation

Guerra, Alice and Luppi, Barbara and Luppi, Barbara and Parisi, Francesco, Do Presumptions of Negligence Incentivize Optimal Precautions? (March 21, 2022). European Journal of Law and Economics 2022, Available at SSRN: https://ssrn.com/abstract=3334448 or http://dx.doi.org/10.2139/ssrn.3334448

Alice Guerra (Contact Author)

University of Bologna - Department of Economics ( email )

Bologna
Italy

Barbara Luppi

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

Viale Berengario 51
41100 Modena, Modena 41100
Italy

University of St. Thomas School of Law

2115 Summit Avenue
Saint Paul, MN 55105
United States

Francesco Parisi

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

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
123
Abstract Views
1,612
rank
311,346
PlumX Metrics