Civil Procedure Commons^™

Pleading And Proof: The Economics Of Legal Burdens, Thomas R. Lee

BYU Law Review

Courts have traditionally assigned burdens of pleading and burdens of proof by mechanically applying any of a number of meaningless "tests." Conventional doctrine assigns these burdens to the party to whose case the issue in question is "essential," or to the party who must establish the "affirmative proposition." Neither of these tests provides a coherent methodology for making such allocations. The first is circular-an issue is "essential" by virtue of the fact that the party has been assigned the burden. The latter is unworkable; it depends on accidents of syntax and may be easily manipulated. This Article attempts to fill …