A Primary-Activity Approach to Proof Burdens

Chris Sanchirico

The Journal of Legal Studies, 2008, vol. 37, issue 1, 273-313

Abstract: The question of which party should bear the burden of proof on a given factual issue remains one of the most important and problematic in evidence and procedure. This paper approaches the question from a relatively unstudied perspective, viewing litigation as a device for influencing primary-activity behavior rather than as a stand-alone search for truth. Its main finding is as follows: when a given evidentiary contest concerns the primary-activity behavior of one of the parties, placing the burden of proof on the other party maximizes the incentive impact of that contest. Although counterintuitive, the finding accords with a striking regularity in existing law. The adversary of the incentive target typically does bear the burden of proof with regard to the target's primary-activity behavior. (c) 2008 by The University of Chicago. All rights reserved.

Date: 2008
References: View references in EconPapers View complete reference list from CitEc
Citations: View citations in EconPapers (11)

Downloads: (external link)
http://dx.doi.org/10.1086/588267 link to full text (text/html)
Access to the online full text or PDF requires a subscription.

Related works:
This item may be available elsewhere in EconPapers: Search for items with the same title.

Export reference: BibTeX RIS (EndNote, ProCite, RefMan) HTML/Text

Persistent link: https://EconPapers.repec.org/RePEc:ucp:jlstud:v:37:y:2008:i:1:p:273-313

Access Statistics for this article

More articles in The Journal of Legal Studies from University of Chicago Press
Bibliographic data for series maintained by Journals Division ().