Law, Economics, and the Burden(s) of Proof

Talley, Eric L.

doi:10.2139/ssrn.2170469

Cited by 3 publications

(2 citation statements)

References 47 publications

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“…This may not be the only effect of procedural discretion on adjudication. Indeed, others have modeled various aspects of procedure to study a wide range of questions (e.g., see Cooter and Ulen 2012;Talley 2013). However, to the extent that procedural decisions do shape the trial judge's ability to convey her information to a reviewing court, the results in this article provide a new way to understand the effect of procedure on trial court decision making.…”

Section: Nondeference Is Inefficient For Some Trial Judgesmentioning

confidence: 92%

Getting Their Way: Bias and Deference to Trial Courts

Hübert

2019

American J Political Sci

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How much do trial judges influence the law in the United States? I analyze a model of adjudication by a trial judge who engages in fact finding before deciding a case, but whose decision may be reversed. The model makes three broad points. First, it provides an informational rationale for ex post deference to biased trial judges that does not require an ex ante commitment by an appellate court to a standard of review. Second, it shows how procedural discretion can bring biased trial judges' rulings closer to appellate doctrine despite enabling trial judges to "get their way" more often. Third, de facto law as represented by trial judges' case-by-case adjudication will differ substantially from de jure law. As long as there are not too many extremist trial judges, de facto law will reflect the predispositions of trial judges, not legal doctrine.

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Section: Nondeference Is Inefficient For Some Trial Judgesmentioning

confidence: 92%

Getting Their Way: Bias and Deference to Trial Courts

Hübert

2019

American J Political Sci

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“…We have here summarized Talley's () characterization of the law‐and‐economics literature on evidence. See Talley's chapter, and also Sanchirico (), for citations.…”

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confidence: 99%

Statistical evidence and the problem of robust litigation

Bull

Watson

2019

The RAND J of Economics

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We propose a new model of disclosure, interpretation, and management of hard evidence in the context of litigation and similar applications. A litigant has private information and may also possess hard evidence that can be disclosed to a fact‐finder, who interprets the evidence and decides a finding in the case. We identify conditions under which hard evidence generates value that is robust to the scope of rational reasoning and behavior. These fail if the litigant's private information is sufficiently strong relative to the “face‐value signal” of evidence, and then hard evidence may be misleading. Rules that exclude some relevant hard evidence can be justified.

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El Desempeño en Juicio De La Fne: ¿es Realmente Un Mejor Litigante Que Los Demandantes Privados?

Pardow

2015

RDUCN

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Th is paper evaluates the performance on antitrust cases of the Chilean public enforcer (FNE by its acronym in Spanish). It presents an approach that frames its diff erences with private plaintiff s in terms of the eff ort that each of these mechanisms of enforcement should deliver during the trial. In a particular case, the presence of the FNE is used to draw the line between public and private enforcement, while the number of hearings is considered as a proxy of the joint eff ort delivered by the parties. Th e results show that the FNE outperforms private plaintiff s in a large number of cases where the eff ort of the parties is relatively low. However, within a small number of cases where the parties deliver a relatively high eff ort, the private plaintiff s are the ones who perform better. Th e paper argues that these trends are related with the structure of agency costs. Whereas private plaintiff s face a variable cost, depending on the number of victims whose coordination is required, the FNE works as a bureaucratic organization that has rather constant costs. Th e FNE has thus a comparative advantage in prosecuting off enses that involve a large number of victims, such as collusion. In contrast, private plaintiff s have the edge in cases involving a limited number of victims, such as dominance or predatory pricing. Diverging from recent studies, the paper concludes that the superiority of the FNE is only partial, and thus the policy should aim at bringing together both mechanisms of enforcement. Private and public enforcement does not behave as structural substitutes but as strategic complements. Hence, strengthening one at the expense of the other is plainly a bad idea.

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Law, Economics, and the Burden(s) of Proof

Cited by 3 publications

References 47 publications

Getting Their Way: Bias and Deference to Trial Courts

Getting Their Way: Bias and Deference to Trial Courts

Statistical evidence and the problem of robust litigation

El Desempeño en Juicio De La Fne: ¿es Realmente Un Mejor Litigante Que Los Demandantes Privados?

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