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Cardozo Law Review

Abstract

Because factual uncertainty distorts the allocation of civil liability, this Article argues that the law should impose liability for uncertainty. Justified on both corrective justice and economic efficiency grounds, this liability should be imposed upon any person who negligently aggravates the uncertainty of a civil case by making its evidential base deficient. Because "evidence" belongs to the world of inferences rather than things, evidential damage may be inflicted in a variety of ways, far beyond destruction of documents and other physical tampering with evidence. Through adoption and refinement of this insight, the Article diagnoses the presence of evidential damage in many legally important settings, such as mass torts, medical malpractice, exposure to risk, and employment discrimination. It also identifies a number of legal doctrines that handle the evidential damage problem indirectly and thus attempt to resolve it within the narrow scope of their application. Criticized by the Article as underdeveloped forms of liability for evidential damage, these doctrines are urged to be replaced by an explicit and comprehensive liability.

From the corrective justice perspective, evidential damage should be actionable because a person sustaining such a damage is deprived of information to which she is entitled. This deprivation makes her less autonomous in pursuing her legal rights and also diminishes the settlement value of her case. From the economic efficiency viewpoint, liability for evidential damage will serve two purposes: as an incentive for people to cost-effectively prevent evidential damage and as a vehicle for optimizing allocation of the primary damage in conditions of uncertainty.

The Article also develops a remedial mechanism for cases involving evidential damage. Drawing upon game theory, this mechanism monetizes evidential damage by comparing the postdamage settlement value of the case with its pre-damage value in a way that precludes both undercompensation and overcompensation of the afflicted party. In cases that became evidentially damaged through fault of one of the litigants, this mechanism is fortified by a reallocation of the persuasion burden to the benefit of the afflicted party. By analyzing both the economics and the egalitarian cast of the rules controlling the burden of proof, the Article demonstrates that its proposed shifting of the risk of non-persuasion will promote both efficiency and fairness.

Keywords

Medical Records, Practice of Medicine, Double Jeopardy, Constitutional Law, Remedies

Disciplines

Constitutional Law | Law | Legal Remedies

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