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Pepperdine University School of Law

Friday, November 18, 2011

Kaplow Presents The Burden of Proof Today at Virginia

Kaplow Tax Prof Louis Kaplow (Harvard) presents The Burden of Proof, 121 Yale L.J. ___ (2012), at Virginia today as part of its Faculty Workshop Series:

The burden of proof is a central feature of all systems of adjudication, yet one that has been subject to little normative analysis. This Article examines how strong evidence should have to be in order to assign liability when the objective is to maximize social welfare. In basic settings, there is a tradeoff between deterrence benefits and chilling costs, and the optimal proof requirement is determined by factors that are almost entirely distinct from those underlying the preponderance of the evidence rule and other traditional standards. As a consequence, these familiar burden of proof rules have some surprising properties, as do alternative criteria that have been advanced. The Article also considers how setting the proof burden interacts with other features of legal system design, such as the determination of enforcement effort and the degree of accuracy of adjudication. It compares and contrasts a variety of legal environments and methods of enforcement, explaining how the appropriate evidence requirements differ qualitatively across contexts. Most of the questions raised and answers presented differ in kind — as well as in result — from those in prior literature.

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The burden of proof is often misunderstood as the concept is composed of 2 separate elements ("burdens"): the burden of production and the burden of persuation. As a normative matter, should the amount of evidence differ for the burden of production and the burden of persuation?

It appears that this article is aimed at the burden of pursuation, and not the burden of proof, as it seems that the burden of production has been assumed to have been met. But as a part of the burden of proof, it should not be overlooked.

Posted by: tax guy | Nov 19, 2011 7:17:04 PM