ASYMMETRIC ERROR COSTS IN CIVIL LAW.

Most lawyers and legal scholars are familiar with the Blackstone ratio- "better that ten guilty persons escape, than one innocent suffer." That ratio recognizes that erroneous judicial decisions impose costs on society. The need to reduce error costs explains many aspects of criminal law, including the reasonable doubt standard of proof, which reflects the assumption that erroneous convictions are far more costly than erroneous acquittals. In the civil law context, however, error costs have received much less attention. Scholars generally assume that error costs are symmetrical. In other words, an erroneous finding of liability is no more costly than an erroneous denial of liability. But it turns out that, as with criminal law, many areas of civil law involve asymmetric error costs, including antitrust, civil fraud, defamation, patent challenges, and cases involving liberty interests and other constitutional rights. This article provides the first in-depth analysis of asymmetric error costs in civil law. It shows that courts frequently identify asymmetric error costs in civil law. Courts seek to address those costs with familiar doctrines, including raising the standard of proof from a preponderance of the evidence to clear and convincing evidence, shifting the burden of proof, and imposing scienter requirements similar to those in criminal law. Courts take asymmetric error costs seriously, and they possess the necessary tools to address them. However, they have a mixed record of doing so, and they rely too heavily on the least reliable of the available tools: raising the standard of proof. Using examples from disparate areas of civil law, I identify the most effective tools to address asymmetric error costs and explain why courts use these tools infrequently. I also illustrate the inconsistent judicial treatment of asymmetric error costs, especially in cases involving reputational harms. [ABSTRACT FROM AUTHOR]