A Shocking Truth for Law and Economics: Consumer Welfare Explains the Internal Market for Electricity Better Than Total Welfare

Esposito, Fabrizio; Almeida, Lucila de

doi:10.1007/978-3-319-74636-4_6

Cited by 4 publications

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“… 22. Elsewhere, we have argued at length that it is crucial for a sound economic approach to law to take seriously the search for economic concepts that fit with legal concepts. In general terms, see Esposito and Tuzet (2019, 2020) and Esposito (2019); on proportionality, see Esposito (2016) and Tuzet (2020); on the concept of allocative efficiency, see Esposito and de Almeida (2018) and Esposito (2022). …”

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confidence: 99%

Preponderance, proportionality, stepwise liability

Tuzet,

Esposito

2023

The International Journal of Evidence & Proof

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After comparing the preponderance and proportional approaches to adjudication by considering some cases susceptible to being decided in either way, the work develops an in-depth discussion of Lavie's stepwise approach, and points out some major concerns that it poses, namely concerns about conceptual resources, methodology and matters of principle. As to conceptual resources, the work addresses and clarifies what Lavie means by ‘probability’ and ‘gradually increasing steps’; on methodology, it observes that reliance on Beckerian deterrence in this context is not convincing due to its reductionist motivational focus, which has also been challenged empirically by behavioural studies, and to its dismissal of the institutional function of trials; on matters of principle, finally, the work claims that the fundamental changes in the jural positions of claimant and defendant raise very high concerns in terms of the right to a fair trial.

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