Edited by Jennifer H. Arlen
Chapter 12: Law, economics, and the burden(s) of proof
Since nearly its inception, law and economics (L & E) scholarship has contributed important and valuable insights about how “substantive” legal rules in general—and tort law in particular—can affect behavior and economic welfare. Like other vehicles of regulation and taxes, the contours of law (such as negligence standards, affirmative defenses, damages measurement, and the like) directly distort individual incentives, risk allocations, activity levels, cost realizations and wealth/income distributions. The collective observations of L & E scholars about the efficiency attributes of tort law are real and rich, and they have informed legal policy-making and reform efforts for much of the last half century. That said, a more distinct contribution of L & E scholarship on torts may lie not with its considerable insights about substantive law (an analytic approach common to much of welfare economics), but rather with its less heralded insights about the procedural rules through which law operates.
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