Burdens of Proof in Civil Litigation: An Economic Perspective

Abstract

Burden of proof rules, which require a specified party to produce evidence on a contested issue, are central to the adversary system. In this article, we model burden of proof rules as a device for minimizing the costs of litigation. The central point to emerge from the model is that, properly assigned, a burden of proof rule economizes on the transmission of information to the court. We use the model to explain characteristic practices of courts in assigning the burden of proof.