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Optimal Proof Burdens, Deterrence, and the Chilling of Desirable Behavior
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BibTeX
@MISC{Kaplow_optimalproof,
author = {Louis Kaplow},
title = {Optimal Proof Burdens, Deterrence, and the Chilling of Desirable Behavior},
year = {}
}
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Abstract
Determination of the stringency of the burden of proof is a central design question in any system of adjudication, including in many private settings (employee promotion and firing, product launches). Prior work oriented towards ex ante behavior focuses on deterrence, using models in which individuals ’ decide whether or not to commit a harmful act – versus abstention or instead of a less harmful act, such as when a higher level of care is taken. 1 The optimal proof burden maximizes deterrence, which involves maximizing the difference between the ex ante likelihoods of correct and incorrect imposition of sanctions. Section I briefly derives this result and shows how, contrary to some suggestions, it differs from the familiar preponderance of the evidence rule under which sanctions are applied if and only if it is more likely than not that the individual before the tribunal committed the harmful act. Such analysis, however, omits a central concern with the mistaken imposition of sanctions: that the prospect of such errors will chill desirable behavior. In competition law, efficient, procompetitive behavior (e.g., promotional pricing) may be discouraged; with securities regulation, the cost of capital may be raised if honest IPOs often lead to successful class action suits; under tort law, health care providers might avoid treatment of high-risk patients for fear of erroneous malpractice liability. This dimension of the problem seems widespread and is likely to be
Keyphrases
optimal proof burden desirable behavior harmful act ante behavior focus ex ante likelihood incorrect imposition erroneous malpractice liability high-risk patient employee promotion successful class action suit tort law central concern evidence rule health care provider central design question many private setting promotional pricing security regulation procompetitive behavior prior work familiar preponderance mistaken imposition harmful act versus abstention product launch competition law
