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Lavie, Shay

doi:10.1515/til-2018-0003

Theoretical Inquiries in Law

2018

DOI: 10.1515/til-2018-0003

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Shay Lavie

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2023

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“… 26. Cf., Lavie (2018: 73–83) (discussing the requirement for a mandatory intermediate stage in class actions and proposing another, preliminary phase).…”

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Stepwise liability: Between the preponderance rule and proportional liability

Lavie

2023

The International Journal of Evidence & Proof

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There are two familiar decision rules: the binary, preponderance of the evidence and the continuous, proportional liability rule. This article proposes a thought experiment. Instead of all-or-nothing or a continuous rule, the law can utilise a middle ground—assigning liability stepwise, according to the procedural progression of the case—stepwise liability. Stepwise liability relies on the gradual design of civil procedure. Under the current system, the plaintiff has to pass several procedural thresholds with increasing evidentiary requirements in order to proceed to trial. Examples are a motion to dismiss and then a summary judgment. I propose that, corresponding to the procedural progression of the case, after surviving each step the plaintiff will be entitled to a gradually increasing share of the damages. Stepwise liability offers several advantages relative to the traditional rules. It provides partial compensation where the defendant's liability falls short of the 50% threshold, hence restoring incentives to take care. Unlike the proportional rule, this outcome can be achieved without major modifications to the existing decision rules. Unlike both rules, the proposal enables plaintiffs to cash in with some award before trial. I analyse the foregoing advantages together with the potential pitfalls, such as over-deterrence, larger legal expenses, and the day-in-court ideal.

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“… 26. Cf., Lavie (2018: 73–83) (discussing the requirement for a mandatory intermediate stage in class actions and proposing another, preliminary phase).…”

mentioning

confidence: 99%

Stepwise liability: Between the preponderance rule and proportional liability

Lavie

2023

The International Journal of Evidence & Proof

Self Cite

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show abstract

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Cited by 1 publication

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Stepwise liability: Between the preponderance rule and proportional liability

Stepwise liability: Between the preponderance rule and proportional liability

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