Deterrence versus Judicial Error: A Comparative View of Standards of Proof

We argue that the common-law standard of proof, given the rulesof evidence, does not minimize expected error as usually argued inthe legal literature, but may well be e±cient from the standpointof providing maximal incentives for socially desirable behavior.By contrast, civil law's higher but somewhat imprecise standardmay be interpreted as re°ecting a trade-off between providingincentives and avoiding judicial error per se. In our model, theoptimal judicial system has rules resembling those in the com-mon law when providing incentives is paramount. When greaterweight is given to avoiding error, the optimal system has civil-lawfeatures.