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The Allocation of the Burden of Proof

Michelle T Grando

in Evidence, Proof, and Fact-Finding in WTO Dispute Settlement

Taking into account the fact that the question of the allocation of the burden of proof has not been addressed in the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), ... More

Taking into account the fact that the question of the allocation of the burden of proof has not been addressed in the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), this chapter is a critical analysis of the rules that panels and the Appellate Body have developed to allocate the burden of proof between the parties. Section I reviews the case law and sets out the questions which will be further discussed in the following sections. Section II argues that panels and the Appellate Body have not adopted a coherent approach and that this has resulted in arbitrary allocations of the burden of proof. Section III then searches for solutions outside the realm of WTO jurisprudence. It explains that domestic law and general principles of law can provide only limited guidance. An alternative analytical framework is then developed on the basis of the law and economics literature on the burden of proof. The last part of the chapter addresses the question of whether the burden of proof should be allocated differently in compliance proceedings under Article 21.5 of the DSU.Less

Functioning of the Burden of Proof

Michelle T Grando

in Evidence, Proof, and Fact-Finding in WTO Dispute Settlement

The previous chapter introduced some basic concepts related to the process of fact-finding and briefly outlined how those concepts are applied in international dispute settlement proceedings, ... More

The previous chapter introduced some basic concepts related to the process of fact-finding and briefly outlined how those concepts are applied in international dispute settlement proceedings, including WTO dispute settlement. This chapter examines in more detail how panels and the Appellate Body manage the concept of the burden of proof and determine when the burden of proof has been discharged. In other words, the main issue discussed regards the functioning of the burden of proof in WTO dispute settlement. The chapter also discusses the related question of the degree of persuasion that panels must reach in order to determine that the burden of proof has been discharged: that is, it addresses the question of the standard of proof.Less

The Problem of Enforcement Error

Randy E. Barnett

in The Structure of Liberty: Justice and the Rule of Law

The problem of enforcement error arises when using power to achieve compliance with justice and the rule of law increases the costs imposed by erroneous judgements on the innocent. Because the use of ... More

The problem of enforcement error arises when using power to achieve compliance with justice and the rule of law increases the costs imposed by erroneous judgements on the innocent. Because the use of power imposes costs on the innocent, and rights legitimate the use of power, we need to limit the number and kind of rights we recognize to those which address pervasive social problems that cannot be dealt with adequately by any other means. So too, the use of force to prevent previous offenders from committing further crimes should be limited to those who have demonstrated by their past criminality or other conduct, their intention to violate rights in the future. This showing should be subjected to a standard of proof beyond a reasonable doubt.Less

Precaution and the SPS Agreement

Lukasz Gruszczynski

in Regulating Health and Environmental Risks under WTO Law: A Critical Analysis of the SPS Agreement

This chapter analyzes the relevance of the precautionary principle in the context of the SPS Agreement. The first part addresses the principle as such and attempts to assess its impact on the ... More

This chapter analyzes the relevance of the precautionary principle in the context of the SPS Agreement. The first part addresses the principle as such and attempts to assess its impact on the interpretation of various SPS provisions. The second part concentrates on Article 5.7, which is recognized as a specific SPS formulation of the principle. A separate analysis is conducted with respect to systemic (i.e. the applicability of Article 5.7, allocation of burden of proof) and substantive (i.e. the normative content of its obligations) issues. In this context, the chapter identifies a number of limitations in the earlier jurisprudence, including the conceptualization of insufficient scientific evidence as an absolute category independent from normative considerations. Nevertheless, it concludes that more recent case law appears to properly address the major points of concern, leaving WTO Members with a considerable degree of regulatory freedom.Less

Aspects of Evidence in International Adjudication

Chester Brown

in A Common Law of International Adjudication

This chapter examines whether commonalities exist in the rules of evidence applied by different international courts and tribunals. It begins by considering the sources of rules of evidence in ... More

This chapter examines whether commonalities exist in the rules of evidence applied by different international courts and tribunals. It begins by considering the sources of rules of evidence in international law. These are the constitutive instruments of international courts, rules of procedure, general principles of law, and inherent powers. It then selects a number of evidential issues, being the admission of evidence, the burden of proof, and the standard of proof, and reviews whether international courts adopt similar approaches. The chapter then turns to an examination of the evidence-gathering powers of international courts, such as taking judicial notice of facts, ordering the production of evidence, making site visits, and ordering expert reports. The practice of international courts generally indicates a common approach to these issues, although the application of the rules is not completely consistent.Less

Scientific Evidence in the Tort Law

Kristin Shrader-frechette General

in Regulating Toxic Substances: A Philosophy of Science and the Law

This chapter argues against the shift in paradigm in favor of scientific evidence in tort law cases. Recent proposals, seeking to require more demanding scientific evidence in toxic tort (and other) ... More

This chapter argues against the shift in paradigm in favor of scientific evidence in tort law cases. Recent proposals, seeking to require more demanding scientific evidence in toxic tort (and other) suits, are mistaken because these seem to impose a universal standard of evidence for quite different institutions—with the risk of distorting existing reasonable tort law relationships, and erring on the side of exclusion rather than admission of evidence. Since the plaintiff bears the burden of production, requiring that this be met by proof equivalent to the criminal law's “beyond a reasonable doubt,” requirement, as some have argued, this substantially distorts the balance of interests between plaintiff and defendant. The appropriate paradigm is not that for scientific practice but the traditional tort law standard of evidence articulated in Ferebee v. Chevron Chemical Co., which said that the appropriate standard is not scientific certainty but “legal sufficiency.” The paradigm of choice in torts is in a sense inclined to retain much of the status quo.Less

Detection of Prohibited Communications

Louis Kaplow

in Competition Policy and Price Fixing

This chapter considers the communications-based prohibition, which requires demonstration of particular behavior that not only is hard to identify but also is not well correlated with high deterrence ... More

This chapter considers the communications-based prohibition, which requires demonstration of particular behavior that not only is hard to identify but also is not well correlated with high deterrence benefits and low chilling costs—indeed, in certain ranges, it may be negatively correlated with both. If one attempts to optimize the proof burdens (adjust the liability/no liability boundaries) under this circumscribed prohibition, one is led to reshape it into the direct approach. The chapter explains that, if one calibrates the burden of proof under the direct approach to find liability in the same number of situations as under the communications-based prohibition, then the direct approach dominates. The cases it targets involve both greater social danger and less risk of chilling desirable behavior than those most likely to generate liability under commentators' favored rule.Less

Proving Constitutional Facts: Sources and Burdens of Proof for Doctrinal, Reviewable, and Case-Specific Facts

David L. Faigman

in Constitutional Fictions: A Unified Theory of Constitutional Facts

Until now, no scholar has attempted to bring procedural order to the subject of fact-finding in constitutional cases. In ordinary cases, a vast array of procedural and evidentiary rules applies to ... More

Until now, no scholar has attempted to bring procedural order to the subject of fact-finding in constitutional cases. In ordinary cases, a vast array of procedural and evidentiary rules applies to fact-finding. The ordinary rules of procedure and evidence do not apply straightforwardly in constitutional cases. Constitutional facts come in three basic varieties: doctrinal, reviewable, and case-specific. In practice, rules of discovery and evidence rules are sometimes applied to constitutional facts, sometimes not, and sometimes applied and not applied at the same time. This chapter considers in detail two basic procedural issues that arise in connection with the three types of constitutional facts. First, it explores the sources of proof—or what evidence scholars would call “admissibility standards”—for each type. Second, it considers the fundamental trial consideration of how burdens of proof should be allocated for constitutional facts.Less

Internal Constraints on Criminalization

Douglas Husak

in Overcriminalization: The Limits of the Criminal Law

This chapter argues that the criminal law itself, and especially its so‐called “general part,” is the source of four internal constraints on the authority of the state to enact and enforce penal ... More

This chapter argues that the criminal law itself, and especially its so‐called “general part,” is the source of four internal constraints on the authority of the state to enact and enforce penal offenses: crimes must be designed to proscribe a harm or evil; criminal conduct must be wrongful; persons may only be punished according to their desert; and the state must bear the burden of proof to justify a penal offense. These constraints are derived from an understanding of what the criminal law is: that body of law that subjects persons to punishment and thus implicates valuable rights. Each constraint is given a novel defense and applied to a handful of examples. In particular, these constraints create difficulties in attempts to justify many of the mala prohibita offenses that have been enacted recently.Less

Defences

Renato Nazzini

in The Foundations of European Union Competition Law: The Objective and Principles of Article 102

This chapter starts by examining the burden of proof and the standard of anti-competitive effects. The burden of proof and the standard of anti-competitive effects determine the boundaries between ... More

This chapter starts by examining the burden of proof and the standard of anti-competitive effects. The burden of proof and the standard of anti-competitive effects determine the boundaries between what must be proved by a competition authority or claimant to establish a prima facie case and the point at which defences become relevant. Next, proportionality defences are discussed, with a focus on the meeting of competition defence. The chapter goes on to examine the proportionality framework of the objective justification defence, distinguishing between the efficiency defence and the social welfare defence. Finally, conclusions are drawn.Less

Similarities and Differences in Common Law Forum Non Conveniens Doctrine

Ronald A. Brand and Scott R. Jablonski

in Forum Non Conveniens: History, Global Practice, and Future under the Hague Convention on Choice of Court Agreements

This chapter provides a detailed comparison of the doctrines of forum non conveniens as applied in the four common law jurisdictions considered in Chapters 2-5. It reviews the basic requirements of ... More

This chapter provides a detailed comparison of the doctrines of forum non conveniens as applied in the four common law jurisdictions considered in Chapters 2-5. It reviews the basic requirements of the doctrine in each country and catalogues similarities and differences dealing with the requirement of an available alternative forum, allocation of the burden of proof, consideration of private interest factors, levels of trail court discretion, the ability to impose conditions on a stay or dismissal, and the treatment of foreign plaintiffs.Less

Strict Liability, Legal Presumptions, and the Presumption of Innocence

R. A. Duff

in Appraising Strict Liability

This chapter begins with a discussion of the four varieties of strict liability. These are that liability can be both legally and morally non-strict; liability can be both legally and morally strict; ... More

This chapter begins with a discussion of the four varieties of strict liability. These are that liability can be both legally and morally non-strict; liability can be both legally and morally strict; liability can be legally non-strict but morally strict, if the legally defined mens rea does not constitute an appropriate kind of moral fault; and liability can be legally strict but morally non-strict, if conviction does not require proof of any legally recognized mens rea as to an aspect of the offence, but proof of legal guilt also constitutes proof of an appropriate moral fault in relation to the complete offence. The chapter then discusses morally strict liability, presumptions and burdens of proof, the presumption of innocence and its implications, justifying rebuttable legal presumptions, and justifying formally strict liability.Less

Defences and the Burden of Proof in International Law

Joost Pauwelyn

in Exceptions in International Law

The burden of proving a defence is said to be on the party invoking it. As trite as this proposition may sound, in international law it hides a far more complex litigation reality. Distinctions must ... More

The burden of proving a defence is said to be on the party invoking it. As trite as this proposition may sound, in international law it hides a far more complex litigation reality. Distinctions must be made both in terms of types of claims in defence, and types of burdens this may impose on the respondent. This chapter distinguishes six different claims in defence: (i) objections to jurisdiction, (ii) objections to admissibility, (iii) exemptions, (iv) absence of breach, (v) exceptions, and (vi) defences under secondary rules. For each of these six claims in defence, five types of burdens are identified: (i) burden of raising a claim in defence, (ii) burden of production of evidence, (iii) burden of persuasion, (iv) quantum of proof, and (v) standard of review. Although for some claims in defence some types of burden are on the defendant, this is certainly not the case for all.Less

From Altercation to Adversary Trial

John H. Langbein

in The Origins of Adversary Criminal Trial

The judges attempted to admit defense counsel at trial for the limited purpose of assisting the defendant to probe accusing evidence, expecting that the defendant would otherwise continue to speak in ... More

The judges attempted to admit defense counsel at trial for the limited purpose of assisting the defendant to probe accusing evidence, expecting that the defendant would otherwise continue to speak in his or her own defense. By articulating and pressing for the enforcement of the prosecutorial burdens of production and proof, defense counsel largely silenced the defendant, leading to the beyond-reasonable-doubt standard of proof, and the privilege against self-incrimination. The adversary dynamic changed the very theory of the criminal trial. Whereas the old altercation trial had been understood as an opportunity for the accused to speak in person to the charges and the evidence against him, adversary criminal trial became an opportunity for defense counsel to test the prosecution case.Less

Exceptions and the Burden of Proof

Luís Duarte d’Almeida

in Allowing for Exceptions: A Theory of Defences and Defeasibility in Law

The proof-based account of legal exceptions faces a set of objections based on what many see as a distinctive feature of exceptions: their typical association to a particular allocation of burdens of ... More

The proof-based account of legal exceptions faces a set of objections based on what many see as a distinctive feature of exceptions: their typical association to a particular allocation of burdens of proof. This chapter distinguishes and discusses three such objections. The first is that the proof-based account cannot accommodate the fact that when a defendant successfully brings the occurrence of an exception into issue it falls to the plaintiff or prosecutor to disprove it. The second is that the proof-based account ignores the distinction between the evidential burden and the burden of proof proper. The third is that the proof-based account appears to match only one of two possible ways the burden of proof relative to exceptions can be allocated. But these objections are grounded on a popular but mistaken understanding of the notion of the burden of proof. This chapter offers a new account of this notion.Less

Understanding Indeterminacy

Gary Lawson

in Evidence of the Law: Proving Legal Claims

This chapter shows how applying principles of proof to legal propositions clarifies the nature of legal indeterminacy. Legal though often assumes that interpretative uncertainty resulting from ... More

This chapter shows how applying principles of proof to legal propositions clarifies the nature of legal indeterminacy. Legal though often assumes that interpretative uncertainty resulting from application of a theory leads to indeterminacy in the theory’s ability to resolve disputes. That is not necessarily true. The extent to which any theory generates indeterminacy depends both upon the degree of uncertainty that it generates and on how the theory allocates burdens of proof. A theory with a lot of uncertainty can nonetheless be highly determinate if it specifies how the risk of uncertainty should be borne among the contending parties. Indeed, a legal system can be entirely determinate – can prescribe a unique outcome for every instance of adjudication – even if the legal norms are significantly uncertain. Using burdens of proof to resolve legal uncertainty has consequences. Doctrines as seemingly diverse as the rule of lenity in statutory interpretation and the non-delegation doctrine in federal constitutional law all turn out to be special cases of very basic observations about legal proof.Less

The Formal Structure of Proof

Gary Lawson

in Evidence of the Law: Proving Legal Claims

This chapter describes the formal structure of proof for facts in the law as involving principles of admissibility (what counts toward establishing a claim), principles of weight or significance (how ... More

This chapter describes the formal structure of proof for facts in the law as involving principles of admissibility (what counts toward establishing a claim), principles of weight or significance (how much the admissible evidence counts toward establishing a claim), standards of proof (how much total admissible evidence one must have in order to establish a claim), burdens of proof (how one makes decisions in the face of uncertainty), and principles of closure (when one can stop looking for more information and declare the evidence set closed). It suggests that this formal structure for proof of facts – not the particular determinations that American law has chosen to make but the formal structure itself -- is a special case of a broader truth about the nature of proof. That is, the questions that the law asks in connection with proof of claims that are conventionally classified as factual are questions that must be asked with respect to proof of any claim in any discipline. The chapter also demonstrates that any distinction that is drawn between propositions of fact and propositions of law is purely conventional and is ungrounded in anything metaphysically or epistemologically significant.Less

Allocation of the Risk of Error in Criminal Trials

Alex Stein

in Foundations of Evidence Law

This chapter discusses risk of error allocation in criminal trials. Topics covered include the ‘equal best’ standard, the burden of proof, exclusion, pre-emption, corroboration, and discretion.

Religious Experience and the Burden of Proof

Herman Philipse

in God in the Age of Science?: A Critique of Religious Reason

An analysis of three problems for Richard Swinburne’s Bayesian cumulative case strategy in natural theology shows why he needs to shift the burden of proof to the unbeliever. Allegedly, this shift is ... More

An analysis of three problems for Richard Swinburne’s Bayesian cumulative case strategy in natural theology shows why he needs to shift the burden of proof to the unbeliever. Allegedly, this shift is accomplished by the argument from religious experience, which is based upon the Principle of Credulity and the Principle of Testimony. However, the Principle of Credulity does not apply to religious experiences, and genuine perceptual of-God experiences are impossible. Furthermore, if monotheism were true, most religious experiences (of other gods than God) would be deceptive, so that religious experience in general would be highly unreliable. Swinburne does not succeed to neutralize other defeaters of the argument from religious experience either, so that one cannot shift the burden of proof to unbelievers. It is concluded that Swinburne’s cumulative case for the existence of God fails, and that it is unlikely that anyone else will succeed in arguing convincingly that God exists.Less

Allocation of the Risk of Error in Civil Litigation

Alex Stein

in Foundations of Evidence Law

This chapter discusses risk of error allocation in civil litigation. Topics covered include fairness vs efficiency, burden of proof and equality, exclusion of evidence as corrective equality, ... More

This chapter discusses risk of error allocation in civil litigation. Topics covered include fairness vs efficiency, burden of proof and equality, exclusion of evidence as corrective equality, equality and pre-emption, corroboration as corrective equality, and equality and discretion.Less