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A Primary-Activity Approach to Proof Burdens

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  • Chris William Sanchirico

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.

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  • Chris William Sanchirico, 2008. "A Primary-Activity Approach to Proof Burdens," The Journal of Legal Studies, University of Chicago Press, vol. 37(1), pages 273-313, January.
    • Handle: RePEc:ucp:jlstud:v:37:y:2008:i:1:p:273-313
    DOI: 10.1086/588267
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    Cited by:

    1. Horn, Henrik, 2011. "The burden of proof in trade disputes and the environment," Journal of Environmental Economics and Management, Elsevier, vol. 62(1), pages 15-29, July.
    2. Mongrain, Steeve & Roberts, Joanne, 2009. "Plea bargaining with budgetary constraints," International Review of Law and Economics, Elsevier, vol. 29(1), pages 8-12, March.
    3. Louis Kaplow, 2012. "On the Optimal Burden of Proof," NBER Working Papers 17765, National Bureau of Economic Research, Inc.
    4. Jeong-Yoo Kim, 2021. "Burdens of Proof and Judicial Errors in Civil Litigation," Korean Economic Review, Korean Economic Association, vol. 37, pages 5-35.
    5. Karl Wärneryd, 2012. "Nine points of the law: evidentiary rules and the costs of litigation," Public Choice, Springer, vol. 153(3), pages 279-285, December.
    6. Horn, Henrik, 2009. "The Burden of Proof in National Treatment Disputes and the Environment," Working Paper Series 791, Research Institute of Industrial Economics.
    7. Szalai, Ákos, 2013. "A bizonyítási teher megfordításának hatása kártérítési ügyekben [Reverse burden of proof in tort law]," Közgazdasági Szemle (Economic Review - monthly of the Hungarian Academy of Sciences), Közgazdasági Szemle Alapítvány (Economic Review Foundation), vol. 0(11), pages 1208-1233.
    8. Eyal Zamir & Ilana Ritov, 2012. "Loss Aversion, Omission Bias, and the Burden of Proof in Civil Litigation," The Journal of Legal Studies, University of Chicago Press, vol. 41(1), pages 165-207.
    9. Alice Guerra & Barbara Luppi & Francesco Parisi, 2022. "Do presumptions of negligence incentivize optimal precautions?," European Journal of Law and Economics, Springer, vol. 54(3), pages 349-368, December.
    10. Bond Philip, 2009. "Contracting in the Presence of Judicial Agency," The B.E. Journal of Theoretical Economics, De Gruyter, vol. 9(1), pages 1-34, November.

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