Abstract

http://ssrn.com/abstract=878551
 
 

References (21)



 
 

Citations (7)



 


 



A Primary Activity Approach to Proof Burdens


Chris William Sanchirico


University of Pennsylvania Law School; University of Pennsylvania Wharton School - Business Economics and Public Policy Department

January 1, 2006

Journal of Legal Studies, Vol. 37, 2008
U of Penn, Inst for Law & Econ Research Paper No. 06-03

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 standalone 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. Though 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. Thus, in tort, the plaintiff bears the burden on the defendant's negligence, but the defendant typically bears the burden on the defense that the plaintiff was contributorily negligent. And in contract the plaintiff bears the burden on the defendant's nonperformance, while the defendant bears the burden of proof on his defense that the plaintiff failed to perform.

Number of Pages in PDF File: 46

Keywords: Burden of Proof, Burden of Production, Burden of Persuasion, Procedure, Evidence, Litigation

JEL Classification: K40, K41, K11, K13

Accepted Paper Series


Download This Paper

Date posted: January 30, 2006 ; Last revised: April 10, 2012

Suggested Citation

Sanchirico, Chris William, A Primary Activity Approach to Proof Burdens (January 1, 2006). Journal of Legal Studies, Vol. 37, 2008; U of Penn, Inst for Law & Econ Research Paper No. 06-03. Available at SSRN: http://ssrn.com/abstract=878551 or http://dx.doi.org/10.2139/ssrn.878551

Contact Information

Chris William Sanchirico (Contact Author)
University of Pennsylvania Law School ( email )
3501 Sansom Street
Philadelphia, PA 19104
United States
215-898-4220 (Phone)
HOME PAGE: http://www.law.upenn.edu/faculty/csanchir/
University of Pennsylvania Wharton School - Business Economics and Public Policy Department
3641 Locust Walk
Philadelphia, PA 19104-6372
United States
Feedback to SSRN


Paper statistics
Abstract Views: 1,699
Downloads: 298
Download Rank: 57,212
References:  21
Citations:  7

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo2 in 0.266 seconds