Pleading and Proof: The Economics of Legal Burdens

34 Pages Posted: 12 Sep 2008

See all articles by Thomas R. Lee

Thomas R. Lee

Brigham Young University - J. Reuben Clark Law School

Date Written: September 10, 2008


Courts have traditionally assigned burdens of pleading and burdens of proof by mechanically applying any of a number of meaningless "tests." Conventional doctrine assigns these burdens to the party to whose case the issue in question is "essential," or to the party who must establish the "affirmative proposition." Neither of these tests provides a coherent methodology for making such allocations. The first is circular-an issue is "essential" by virtue of the fact that the party has been assigned the burden. The latter is unworkable; it depends on accidents of syntax and may be easily manipulated.

This Article attempts to fill this analytical void by employing economic analysis to provide a framework for allocating burdens of pleading and proof. The Article analyzes procedural rules on burdens of pleading and burdens of proof under a framework of cost minimization; the goal is to explain the law's allocations of burdens as attempts to minimize social costs.

Part I introduces the economic framework to be employed throughout the Article. Part II utilizes the model to derive some economic justifications for the basic system of pleading under current law; it offers a rationale for the default rule that assigns the burden of pleading on most issues to plaintiffs and suggests two theories for the law's deviations from the default rule (i.e., affirmative defenses). Part III follows the same pattern in the context of burdens of proof-it first makes the economic case for the default rule and then outlines several economic justifications for affirmative defenses. Both sections illustrate the economic theory with specific applications under current law.

Part IV sharpens the distinction between the different economic functions performed by burdens of pleading and burdens of proof by analyzing two areas in which the law has departed from the traditional rule that the burden of proof follows the burden of pleading. Finally, Part V attempts to synthesize the analysis developed throughout the Article by returning to the issue of "business necessity" and applying the economic model to the decision of where to allocate the burden of pleading and burden of proof in Title VII disparate impact claims.

Keywords: Law & economics, allocating burdens of pleading and proof, cost minimization, burden of proof, affirmative defenses, business necessity, Title VII disparate impact claims,

Suggested Citation

Lee, Thomas R., Pleading and Proof: The Economics of Legal Burdens (September 10, 2008). Brigham Young University Law Review, Vol. 1997, pp. 1-34, 1997, Available at SSRN:

Thomas R. Lee (Contact Author)

Brigham Young University - J. Reuben Clark Law School ( email )

519 JRCB
Brigham Young University
Provo, UT 84602
United States

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