Decision making in the absence of successful fact finding: theory and experimental evidence on adversarial versus inquisitorial systems of adjudication

In this paper, we use experimental data to test theoretical predictions concerning the differences in decisional treatment between adversarial and inquisitorial systems where the proceedings fail to achieve explicit revelation of decisive facts, and suggest new directions for future research. In particular, we use our data: ( 1) to test the hypothesis of Shin [RAND J. Econ. 26 (2) (1998) 3781 that adversarial versus inquisitorial decision systems will differ in their reaction to the case of non-revelation in a predictably systematic manner and (2) to test the predictions of Dewatripont and Tirole [J. Politic. Econ. 107 (1) (1999) 1] concerning the types of errors that are likely to result from both procedures. We find that our experimental subjects' decision-making pattern does not follow the inferential process postulated by Shin. However, it does appear, as predicted by Dewatripont and Tirole, that out-adversarial decision makers had a stronger tendency than inquisitorial decision makers toward an equal division of a contested stake, where revelation fails and formal burdens of proof are suppressed. Our results support the argument that formal burdens of proof, which provide default rules of decision where procedures fail to achieve revelation of decisive facts, are important to the efficient functioning of adversarial systems of adjudication. (C) 2004 Elsevier Inc. All rights reserved.