Download this Paper Open PDF in Browser

A Primary Activity Approach to Proof Burdens

46 Pages Posted: 30 Jan 2006 Last revised: 10 Apr 2012

Chris William Sanchirico

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

Date Written: January 1, 2006

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.

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

JEL Classification: K40, K41, K11, K13

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: https://ssrn.com/abstract=878551 or http://dx.doi.org/10.2139/ssrn.878551

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

Paper statistics

Downloads
344
Rank
72,300
Abstract Views
2,116