Preponderance, proportionality, stepwise liability

Abstract

After comparing the preponderance and proportional approaches to adjudication by considering some cases susceptible to being decided in either way, the work develops an in-depth discussion of Lavie's stepwise approach, and points out some major concerns that it poses, namely concerns about conceptual resources, methodology and matters of principle. As to conceptual resources, the work addresses and clarifies what Lavie means by ‘probability’ and ‘gradually increasing steps’; on methodology, it observes that reliance on Beckerian deterrence in this context is not convincing due to its reductionist motivational focus, which has also been challenged empirically by behavioural studies, and to its dismissal of the institutional function of trials; on matters of principle, finally, the work claims that the fundamental changes in the jural positions of claimant and defendant raise very high concerns in terms of the right to a fair trial.

Stepwise liability: Between the preponderance rule and proportional liability

“…Although the distinction between a judge who declares a probabilistic liability (under the proportional rule) and a judge who translates the procedural standard to probability threshold may seem artificial (cf. Tuzet and Esposito, 2023: 325–329), it is based on existing practices. 33…”

“… 75. For these reasons, we should not let prospective defendants to avail themselves of the stepwise liability option. Cf., Tuzet and Esposito (2023: 337).…”