Document Type

Working Paper

Publication Date

1-10-2015

SSRN Discipline

Legal Scholarship Network; Law School Research Papers - Legal Studies; Litigation, Procedure & Dispute Resolution eJournals; Law & Society eJournals; LSN Subject Matter eJournals; AARN Subject Matter eJournals; Constitutional Law, Jurisprudence & Legal Philosophy eJournals; Political Science Network; Anthropology & Archaeology Research Network

Abstract

Lawandeconomics scholars have recently argued that the legal system should set burdens of proof on the basis of ex ante welfare considerations In this Article we reject this welfarist approach showing that it relies on contested normative principles raises legitimacy concerns and is nearly impossible to implement in practice As an alternative we propose a decisiontheory model that we constrain to account for core legal values and the practical limitations of the trial process Specifically we require that the burden of proof prioritize accuracy truth over welfare and that it be capable of operating without knowledge of the base rates or prior probabilities of activities The resulting optimization problem can be solved using a minimax approach which minimizes the maximum probability of error faced by each of the parties and remarkably the minimax solution turns out to be precisely the preponderanceoftheevidence standard currently imposed by courts We thereby not only refute recent welfare theories about the burden of proof but also provide a new theoretical justification for the traditional preponderance standard

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