Burdens of Proof in Establishing Negligence: A Comparative Law and Economic Analysis

24 Pages Posted: 16 Mar 2023

See all articles by Francesco Parisi

Francesco Parisi

University of Minnesota - Law School; University of Bologna

Giampaolo Frezza

University of Rome, LUMSA, Faculty of Law

Date Written: March 14, 2023

Abstract

Inherent in any judicial system is the need to allocate the burden of proof on one party. Within the realm of negligence torts, that burden is traditionally placed on the plaintiff, meaning that the plaintiff must bring forth sufficient evidence to establish negligence by the defendant. In effect, this is a legal presumption of non-negligence in favor of the defendant. In some jurisdictions for specific torts, defendants are, instead, presumed negligent, therefore requiring defendants to come forth with sufficient evidence to prove their due diligence. In this paper, we discuss the legal origins and effects of these differences in a comparative law and economics perspective. We explore the interesting interaction between evidence and substantive tort rules in the creation of care and activity level incentives and discuss the ideal scope of application of alternative legal presumptions under modern-age evidentiary technology.

Keywords: Legal presumptions, burden of proof, discovery, negative proof, tort incentives

JEL Classification: K13, K32

Suggested Citation

Parisi, Francesco and Frezza, Giampaolo, Burdens of Proof in Establishing Negligence: A Comparative Law and Economic Analysis (March 14, 2023). Minnesota Legal Studies Research Paper No. 23-05 Forthcoming, Available at SSRN: https://ssrn.com/abstract=4387826 or http://dx.doi.org/10.2139/ssrn.4387826

Francesco Parisi (Contact Author)

University of Minnesota - Law School ( email )

229 19th Avenue South
Minneapolis, MN 55455
United States

University of Bologna ( email )

Piazza Scaravilli 1
40126 Bologna, fc 47100
Italy

Giampaolo Frezza

University of Rome, LUMSA, Faculty of Law ( email )

Via della Traspontina
Roma, Rome 00192
Italy

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