TY - CHAP
T1 - Cost-Benefit Analysis of Evidence Law and Factfinding
AU - Fisher, Talia
N1 - Publisher Copyright: © Christian Dahlman, Alex Stein, and Giovanni Tuzet 2021.
PY - 2021/1/1
Y1 - 2021/1/1
N2 - Utility considerations have been central to legal factfinding, at least since the days of Jeremy Bentham, the founding father of utilitarianism and a prominent evidence law theorist. A direct line can be drawn from Bentham’s “principle of utility” to cost-benefit analysis (CBA) so it would seem only natural that the realms of evidence law and judicial factfinding would harbor this type of reasoning. However, when legal scholarship began to incorporate economic reasoning and to address issues from a CBA perspective, evidence law and the practice of judicial factfinding remained very much out of the picture. The object of this chapter is to highlight the prospects for integrating CBA into contemporary evidentiary policy and institutions, and to draw the general contours of the evolving scholarship in these fields of research. It describes and analyzes two economically driven models of evidence and proof: The cost-minimization model, geared toward minimization of the cost of errors and the cost of accuracy as a total sum, and the primary behavior model aiming to incentivize socially optimal behavior and interactions. This analysis identifies the models’ difficulties, engendered, for the most part, by the misalignment between the private and the social costs and benefits of adjudication, and addresses the models’ relationship to the existing evidentiary rules and institutions.
AB - Utility considerations have been central to legal factfinding, at least since the days of Jeremy Bentham, the founding father of utilitarianism and a prominent evidence law theorist. A direct line can be drawn from Bentham’s “principle of utility” to cost-benefit analysis (CBA) so it would seem only natural that the realms of evidence law and judicial factfinding would harbor this type of reasoning. However, when legal scholarship began to incorporate economic reasoning and to address issues from a CBA perspective, evidence law and the practice of judicial factfinding remained very much out of the picture. The object of this chapter is to highlight the prospects for integrating CBA into contemporary evidentiary policy and institutions, and to draw the general contours of the evolving scholarship in these fields of research. It describes and analyzes two economically driven models of evidence and proof: The cost-minimization model, geared toward minimization of the cost of errors and the cost of accuracy as a total sum, and the primary behavior model aiming to incentivize socially optimal behavior and interactions. This analysis identifies the models’ difficulties, engendered, for the most part, by the misalignment between the private and the social costs and benefits of adjudication, and addresses the models’ relationship to the existing evidentiary rules and institutions.
KW - Evidence (Law) -- Philosophy
UR - http://www.scopus.com/inward/record.url?scp=85140618212&partnerID=8YFLogxK
U2 - https://doi.org/10.1093/oso/9780198859307.003.0011
DO - https://doi.org/10.1093/oso/9780198859307.003.0011
M3 - فصل
SN - 9780192603098
T3 - Philosophical Foundations of Law Ser
SP - 137
EP - 153
BT - Philosophical Foundations of Evidence Law
A2 - Dahlman, Christian
A2 - Stein, Alex
A2 - Tuzet, Giovanni
PB - Oxford University Press
ER -