Do Presumptions of Negligence Incentivize Optimal Precautions?

Posted: 6 Mar 2019 Last revised: 6 Aug 2021

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 11, 2019

Abstract

In the U.S. and in most other 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 nonnegligence in favor of injurers. In recent times, Europe placed renewed attention on “presumed liability,” which instead creates a presumption of negligence against injurers. In this paper, we analyze the effects of these 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 adjudication on the parties’ care incentives.

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

JEL Classification: K13, D83

Suggested Citation

Guerra, Alice and Luppi, Barbara and Parisi, Francesco, Do Presumptions of Negligence Incentivize Optimal Precautions? (February 11, 2019). 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

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

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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