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American Law and Economics Review Advance Access originally published online on August 19, 2008
American Law and Economics Review 2008 10(2):351-387; doi:10.1093/aler/ahn011
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© The Author 2008. Published by Oxford University Press on behalf of the American Law and Economics Association. All rights reserved. For Permissions, please e-mail: journals.permissions@oxfordjournals.org

Evidentiary Standards and Information Acquisition in Public Law

Matthew C. Stephenson

Harvard Law School

Send correspondence to: Matthew C. Stephenson, Harvard Law School, Griswold 509, Cambridge, MA 02138, USA; E-mail: mstephen{at}law.harvard.edu.

JEL Classification: K23, K32, K41


  Abstract

This article considers the type of evidence that an overseer (e.g., a court) should require before allowing a government agent to take some proposed action. The court can increase agency research incentives by prohibiting actions unless the agent produces supporting evidence, and/or by permitting action even when the agent uncovers adverse evidence. The court thus faces a trade-off between an evidentiary standard's ex post effects on the agent's policy decision and its ex ante effects on the agent's incentive to do research. An extension allows the court to make research effort a precondition for action, regardless of the evidence produced.

I am grateful to Daryl Levinson, John Manning, Eric Posner, Steve Shavell, Ken Shepsle, Kathy Spier, and Kathy Zeiler for helpful comments on earlier drafts.


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