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Full-Text Articles in Law
"Presumptions And Burdens Of Proof As Tools For Legal Stability And Change, Tamar Frankel
"Presumptions And Burdens Of Proof As Tools For Legal Stability And Change, Tamar Frankel
Faculty Scholarship
Presumptions and burdens of proof are used, among other purposes, to maintain legal stability and at the same time effect change. By imposing the burden of proof on the party asserting a certain outcome, courts can calibrate burdens of proof and substantive rules until experience points to rule retention or amendment. As agents of change, presumptions and burdens of proof are far more flexible and less brittle than rules.1
This Article tells the story of presumptions and burdens of proof in litigation between corporate shareholders and managements. This litigation is replete with volatile presumptions and innovative burdens of proof, …
Decoupling Sales Law From The Acceptance-Rejection Fulcrum, Jody S. Kraus
Decoupling Sales Law From The Acceptance-Rejection Fulcrum, Jody S. Kraus
Faculty Scholarship
The determination of whether the buyer has accepted or rejected goods provides the sales law solution to the problems of allocating burden of proof, assigning duties to salvage goods in failed transactions, and reducing systematic undercompensation. But one doctrine is unlikely to provide the best solution to each of these distinct problems. Decoupling the rules addressing burden of proof, salvage, and undercompensation from the doctrines of acceptance and rejection, and thus from one another, would significantly improve sales law.
This strategy has a distinguished precedent in the history of sales law. Karl Llewellyn based his objection to the doctrine of …