This paper defines the preponderance of the evidence standard and establishes it as a benchmark, optimal under certain idealized conditions. The main conditions are: only efficiency matters (not fairness); people are risk-neutral; sanctions are socially costless; and a suit may be brought even if no violation of the law has occurred. Concerning the definition of preponderance of the evidence, a distinction is made between standards based on probability of guilt and standards based on the

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... e. It is stressed that the latter does not include ex-ante information concerning the offender's type, and should hence not be associated with a probability of guilt in a Bayesian sense.