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Jan 1, 2006 · PDF | On Jan 1, 2006, Claude Fluet and others published Preponderance of evidence | Find, read and cite all the research you need on ResearchGate
Financing from FCAR (Quebec) is gratefully acknowledged. fCESifo Working Paper No. 725 PREPONDERANCE OF EVIDENCE Abstract This paper analyzes the incentive properties of the standard and burden of proof for a finding of negligence, when evidence is imperfect and rests with the parties.
- Dominique Demougin
- General rights
- When is the Preponderance of the Evidence Standard Optimal?
- Abstract
- Introduction
- Why preponderance of the evidence maximizes deterrence
- On the non-use of ex-ante information
- No risk-aversion
- Zero social cost of imposing penalties
- Investigations may occur even if there is no unlawful action
- Discussion
- Summary
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Henrik Lando, Department of Industrial Economics and Strategy Copenhagen Business School, e-mail: hl.ivs@cbs.dk
This paper defines the preponderance of the evidence standard and establishes it as a benchmark, optimal under certain idealized conditions. The main conditions are: only efficiency matters (not fairness); people are risk-neutral; sanctions are socially costless; and a suit may be brought even if no violation of the law has occurred. Concerning the...
Different standards of proof are employed in different kinds of legal disputes. Beyond a reasonable doubt is the standard mainly used in criminal law, proof by clear and convincing evidence is the standard required e.g. for civil commitment of the mentally ill1, while preponderance of the evidence is generally held to be the standard employed in ci...
It will now be argued that preponderance of the evidence, as just defined, maximizes deterrence11. Using the notation above, this follows from the fact that if p > q for the evidence x in a given case, then p ∗ s > q ∗ s , where s is the (positive) sanction. This means that preponderance of the evidence ensures that the expected sanction will be hi...
One easily takes for granted that a judge should establish the probability of guilt. The implicit notion behind this view is (in a Bayesian world) that the judge should up-date prior beliefs concerning “guilt” with the weight of the evidence in order to arrive at the (ex-post) probability of guilt. To express this mathematically, when A expresses t...
When social welfare includes only efficiency and not fairness, whether or not potential offenders are risk-averse does not affect the result that preponderance of the evidence maximizes deterrence. This can 12 For example for the issue whether or not to allow character-evidence in court. This question is analyzed by Schrag and Scotchmer [11], but n...
As when people are risk-averse, when it is costly to impose sanctions, this will tend to make the optimal standard stricter; the benefit of sanctioning in some state of nature must be balanced by the cost of so doing. For those states of nature that occur with only a slightly increased probability if the unlawful act is committed, the cost of sanct...
Even if people could be assumed to be risk-neutral and sanctions could be assumed to be simply transfers of wealth, there would remain an important set of circumstances for which it is misleading to think of preponderance of the evidence standard as an optimal standard of proof. This class of cases has not, in my view, been sufficiently noted in th...
It may be asked whether the preponderance of the evidence standard remains optimal when the possibility is opened up that the sanction could depend on the weight of the evidence. It was implicit in the arguments above that a sanction is either applied or not. It turns out that the answer is affirmative. In the above example when p > q, the sanction...
This article has put forward a simple incentive argument in favor of preponderance of the evidence: it maximizes deterrence since it maximizes the difference in expected utility between adhering to and violating the law. This establishes preponderance of the evidence standard as a benchmark in civil law. However, maximal deterrence is not the only ...
PREPONDERANCE OF THE EVIDENCE, Black's Law Dictionary (9th ed. 2009). 4. The persuasive value of medical opinions is paramount. Obtaining a preponderance is no longer just a numbers game. 5. “In determining the credibility and weight to be given such opinion evidence, you may consider, among other things.
• Participants will be able to articulate and explain the preponderance of the evidence standard. • Participants will understand how to apply the preponderance standard to evidence gathered in an investigation. • Participants will be able to articulate why the preponderance standard is the equitable standard for behavior covered by Title IX.
The preponderance standard is conventionally described as an absolute probability threshold of 0.5. This Essay argues that this absolute characterization of the burden of proof is wrong. Rather than focusing on an absolute threshold, the Essay reconceptualizes the preponderance standard as a probability ratio and shows how doing so eliminates ...
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There are no generally accepted methods for getting a grasp on the preponderance of the evidence for meta-analysis and one way of doing so is proposed and the recently emergent literature concerning calcium intake and body composition is used as an illustration of how such an approach might be used. Meta-analysis is typically applied to studies developed in fairly mature fields, but may be ill ...
