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.
|Original language||English (US)|
|Number of pages||20|
|Journal||European Journal of Law and Economics|
|State||Published - Dec 2022|
Bibliographical noteFunding Information:
A previous version of this paper was circulated under the title “Presumption of Negligence.” Minnesota Legal Studies Research Paper No. 15-08, Available at SSRN: http://dx.doi.org/10.2139/ssrn.2577416. Two self-standing papers were created out of the original manuscript: one focusing on the effects of evidence rules on the adoption of evidence technology (Guerra & Parisi, 2022); and the current paper, analyzing the effects of legal presumptions on care incentives. We are indebted to Alain Marciano and the anonymous referees for their insightful and valuable comments. We thank Ronen Avraham, Emanuela Carbonara, Giuseppe Dari-Mattiacci, Samuel Ferey, Ryan Fitzgerald, Luigi Alberto Franzoni, Giampaolo Frezza, Julien Jacob, Jonathan Klick, Shmuel Leshem, Peter Lewisch, Marie Obidzinski, Daniel Pi, Ram Singh, Jane Stapleton, and Louis T. Visscher for helpful suggestions, and Eamonn Gallagher for editorial assistance.
© 2022, The Author(s).
- Care incentives
- Discovery errors
- Legal presumptions
- Presumed liability