A Primary Activity Approach to Proof Burdens

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.