Evidence law and economics

Published date01 October 2023
AuthorTalia Fisher,Diego Papayannis,Giovanni Tuzet
Date01 October 2023
Subject MatterEditorial
Evidence law and economics
These papers come from the workshop Economic Analysis of Evidence Law, held at the 1st Michele
Taruffo Girona Evidence Week (Girona, Spain), on 26 May 2022. This event aims to promote critical
thinking on the law of evidence, opening new avenues for theoretical developments in procedural law
and beyond. Taruffos own work was tremendously innovative and inf‌luential in most countries of a con-
tinental tradition, especially in Italy and Latin America. He relied on epistemological approaches but was
also very attentive to comparative law, and that is why he was also renowned among his colleagues in
common law systems and, more recently, in China.
In that context, the economic analysis workshop intended to contribute to Taruffos innovative vein by extend-
ing theoretical thinking to the economic effects of the law of evidence. Like any legal rule, the rules of evidence
law generate incentives for the parties to a litigated case and for the population more generally. These rules can
sometimes create divergences between the institutional objectives of factf‌inding and the socially benef‌icial results
of the legal process, namely the results that maximize the overall well-being in the relevant context. Depending on
the rules, the parties may not be suff‌iciently incentivized to initiate proceedings that are benef‌icial to society or,
conversely, they may have incentives to initiate litigation that does not produce optimal aggregate results. At the
same time, evidence law can provide incentives to the parties to produce more or less evidence than is socially
optimal. The rules that allocate the burdens of proof and those that determine evidentiary standards also merit
special attention. These rules can have positive or negative effects, in different circumstances, when they correctly
deter ineff‌icient activities or when they discourage benef‌icial ones, respectively.
More specif‌ically, the papers collected in this special issue make challenging points motivated by
legal-economic analysis: Lavies paper proposes a stepwise approach to civil liability, as opposed to
the preponderance rule and proportional liability. Esposito and Tuzets paper presents a critical analysis
of stepwise liability. Fishers paper makes the economic case for accommodation of multiple conviction
categories. Finally, Pelleds paper presents an economic account of skewed evidence, a category of infor-
mation that distorts the distribution of errors of judgement.
Talia Fisher
Tel Aviv University, Tel Aviv, Israel
Diego Papayannis
University of Girona, Girona, Spain
Giovanni Tuzet
Bocconi University, Milano, Italy
The International Journal of
Evidence & Proof
2023, Vol. 27(4) 259
© The Author(s) 2023
Article reuse guidelines:
DOI: 10.1177/13657127231188498

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