Stepwise Liability: Between the Preponderance Rule and Proportional Liability

Shay Lavie (Tel Aviv University)

Abstract

There are two familiar decision-rules: the binary, preponderance of the evidence rule and the continuous, proportional liability rule. This Article proposes a thought-experiment. Instead of all-or-nothing or a continuous rule, the law can utilize a middle ground – assigning liability stepwise, according to the procedural progression of the case. I refer to this proposal as stepwise liability.
Stepwise liability relies on the gradual design of civil procedure. Under the current system, the plaintiff has to pass several procedural thresholds with increasing evidentiary requirements in order to proceed to trial. Examples are a motion to dismiss at the beginning and then a summary judgment. I propose that, corresponding to the procedural progression of the case, after surviving each step the plaintiff will be entitled to a gradually increasing share of the damages. Stepwise liability offers several advantages relative to the traditional rules. It provides partial compensation where the defendant’s liability falls short of the 50% threshold, hence restoring incentives to take care. Unlike the proportional rule, this outcome can be achieved without major modifications to the existing decision rules. Unlike both rules, the proposal enables plaintiffs to cash-in with some award before trial. This Article analyzes the foregoing advantages of the proposal together with its potential pitfalls, such as over-deterrence and larger legal expenses.

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