The Distortionary Effect of Evidence on Primary Behavior
Vol. 124 No. 2 In this Essay, we analyze how evidentiary concerns dominate actor’s behavior. Our findings offer an important refinement to the conventional wisdom in law and economics literature, which assumes that legal rules can always be fashioned to achieve socially optimal outcomes. We show that evidentiary motivations will often lead actors to engage in socially suboptimal behavior when doing so is likely to increase their chances of prevailing in court.