Presumption of Negligence

Alice Guerra, Barbara Luppi, Francesco Parisi

    Research output: Working paperResearch

    Abstract

    This paper is about the incentive effects of legal presumptions. We analyze three interrelated effects of legal presumptions in a tort setting: (1) incentives to invest in evidence technology; (2) incentives to invest in care-type precautions; and (3) incentives to mitigate excessive activity levels. We suggest that the overlooked interaction between evidence and substantive tort rules is an important dimension that should inform the choice of legal presumptions. After considering the traditional factors that guide the choice of legal presumptions in tort law, we introduce the concept of “best discovery-bearer” to capture some of the factors that should guide the choice of legal presumptions. According to our analysis, the best-discovery-bearer criterion requires a shift of the burden of proof to the parties (a) who can most effectively invest in evidence technology; (b) whose precautions are more inelastic relative to discovery errors; and (c) who are not already burdened by the residual liability.
    This paper is about the incentive effects of legal presumptions. We analyze three interrelated effects of legal presumptions in a tort setting: (1) incentives to invest in evidence technology; (2) incentives to invest in care-type precautions; and (3) incentives to mitigate excessive activity levels. We suggest that the overlooked interaction between evidence and substantive tort rules is an important dimension that should inform the choice of legal presumptions. After considering the traditional factors that guide the choice of legal presumptions in tort law, we introduce the concept of “best discovery-bearer” to capture some of the factors that should guide the choice of legal presumptions. According to our analysis, the best-discovery-bearer criterion requires a shift of the burden of proof to the parties (a) who can most effectively invest in evidence technology; (b) whose precautions are more inelastic relative to discovery errors; and (c) who are not already burdened by the residual liability.
    LanguageEnglish
    Place of PublicationMinneapolis, MN
    PublisherUniversity of Minnesota Press
    Number of pages29
    DOIs
    StatePublished - 26 Mar 2016
    SeriesMinnesota Legal Studies Research Paper
    Number15-08

    Keywords

    • Burden of proof
    • Cheapest evidence-producer
    • Best discovery-bearer

    Cite this

    Guerra, A., Luppi, B., & Parisi, F. (2016). Presumption of Negligence. Minneapolis, MN: University of Minnesota Press. Minnesota Legal Studies Research Paper, No. 15-08, DOI: 10.2139/ssrn.2577416
    Guerra, Alice ; Luppi, Barbara ; Parisi, Francesco. / Presumption of Negligence. Minneapolis, MN : University of Minnesota Press, 2016. (Minnesota Legal Studies Research Paper; No. 15-08).
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    Guerra, A, Luppi, B & Parisi, F 2016 'Presumption of Negligence' University of Minnesota Press, Minneapolis, MN. DOI: 10.2139/ssrn.2577416

    Presumption of Negligence. / Guerra, Alice; Luppi, Barbara; Parisi, Francesco.

    Minneapolis, MN : University of Minnesota Press, 2016.

    Research output: Working paperResearch

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    Guerra A, Luppi B, Parisi F. Presumption of Negligence. Minneapolis, MN: University of Minnesota Press. 2016 Mar 26. Available from, DOI: 10.2139/ssrn.2577416