Preponderance, proportionality, stepwise liability
| Published date | 01 October 2023 |
| DOI | http://doi.org/10.1177/13657127231187057 |
| Author | Giovanni Tuzet,Fabrizio Esposito |
| Date | 01 October 2023 |
Preponderance, proportionality,
stepwise liability
Giovanni Tuzet
Bocconi University, Italy
Fabrizio Esposito
NOVA School of Law and CEDIS, Universidade Nova de Lisboa, Portugal
Abstract
After comparing the preponderance and proportional approaches to adjudication by consider-
ing some cases susceptible to being decided in either way, the work develops an in-depth dis-
cussion 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 deter-
rence 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.
Keywords
deterrence, fair trial, preponderance, proportionality, stepwise liability, uncertainty
Introduction: Stepwise liability as an attractive compromise?
Shay Lavie (2023) presents ‘stepwise liability’as a middle ground between decision according to the pre-
ponderance of evidence rule and decision according to proportional liability. It is a way of adjudicating
cases that takes into consideration the degree to which a given claim receives support from the available
evidence, but it is not an ‘all-or-nothing’way of deciding liability cases. In the former respect, it is similar
to the preponderance approach; in the latter, it is akin to proportional liability. A stepwise decision, in a
nutshell, apportions damages according to the probability of the relevant claim at a certain procedural
stage, or better, since the steps are increasingly demanding, according to the ‘procedural progression
Corresponding author:
Giovanni Tuzet, Bocconi University, Milano, Italy.
Email: giovanni.tuzet@unibocconi.it
Article
The International Journal of
Evidence & Proof
2023, Vol. 27(4) 325–342
© The Author(s) 2023
Article reuse guidelines:
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DOI: 10.1177/13657127231187057
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of the case’. The proposal exploits in this sense the ‘gradual design of legal procedure’: after surviving
each step (notably motion to dismiss, summary judgment and trial), the plaintiff is entitled to a gradually
increasing share of the damages.
The idea applies obviously to civil liability cases. It is not impossible, however, to apply it to the allo-
cation of property rights with some adaptation, but here we will put this application aside.
1
Here we wish to locate the stepwise approach within the broader category of judgment (or decision)
under uncertainty, which also comprises the preponderance approach and the proportionality approach.
Burdens and standards of proof—like the preponderance rule, the clear and convincing evidence standard
and the reasonable doubt standard—are ways of adjudicating cases under factual uncertainty (see e.g.,
Allen, 2014; Redmayne, 2006). The proportionality approach too is a way of deciding cases under uncer-
tainty, when damages are awarded—or property rights are allocated—according to the relative strength of
the relevant claims, in a proportional way instead of following the ‘all-or-nothing’logic of the traditional
burden of proof method. The stepwise approach copes with uncertainty by awarding damages according
to procedural steps and degrees of probability of the relevant claims.
The next section compares the preponderance and proportional approaches by considering some cases
susceptible to being decided in one way or another depending on the chosen approach and its method of
adjudication. The following section develops an in-depth discussion of the stepwise approach, and
points out some major concerns that it poses, namely concerns about conceptual resources, methodology
and matters of principle. More specifically, as to conceptual matters and resources, we will address what
Lavie means by ‘probability’and ‘gradually increasing steps’, and we will propose three clarifications:
probability as reflecting risk, probability as black box probability and increasing steps as explained by a
single persuasion burden; on methodology, we will observe that reliance on Beckerian deterrence in this
context is not convincing due to its reductionist motivational focus, which has also been challengedempir-
ically by behavioural studies, and its dismissal of the institutional function of trials; on matters of principle,
we will claim that thefundamental changes in the jural positions of claimant and defendant raise very high
concerns in terms of the right to a fair trial. The final section concludes by summa rising our points.
Preponderance and proportional liability
A classic example of our problem is Solomon’s judgment. In fact, it was not a liability case, being instead
a controversy over parental rights. But we can briefly consider it for our purposes. Suppose that the
strength or evidential support of the claims of the two alleged mothers is just the same, say .5 in prob-
ability terms. If Solomon were to decide the case under the preponderance rule, plaintiff would lose.
2
This would be correct according to the argument that the burdened party has no title to what they
claim if the burden is not discharged. If the woman acting as plaintiff is not able to prove her claim
with the preponderance of the evidence, the standard of proof is not met and her burden is not discharged.
Hence, Solomon would be committed to decide in favour of the woman acting as defendant. He should
establish the parental rights of the latter woman.
If Solomon were to decide the case under the proportionality approach, instead, he should ‘divide the
baby’in equal parts, given the equal strength or evidential support of the competing claims. This is what
was going to happen, according to the story, and we know that its happy end was due to the emotional
reaction of the true mother and Solomon’s ability to exploit it.
3
1. See, however, the considerations under ‘Preponderance and proportional liability’below.
2. But following the Bible’s account (1 Kings 3: 16–28) it would be impossible to establish which woman was acting as plaintiff,
since the two came before Solomon at the same time making the same claim.
3. Thanks to the proportional strategy, Solomon was able to identify the false mother as the woman who immediately and entirely
approved of the proportional proposal, while the true one begged that the sword be sheathed and the child committed to the care
of her rival. Solomon gave the child to the begging woman, the true mother.
326 The International Journal of Evidence & Proof 27(4)
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