A Primary‐Activity Approach to Proof Burdens
本文从影响主要活动行为的角度研究举证责任分配，发现将举证责任置于激励目标的对立方能最大化激励效果，这一反直觉结论与现有法律规律一致。
The question of which party should bear the burden of proof on a given factual issue remains one of the most important and problematic in evidence and procedure. This paper approaches the question from a relatively unstudied perspective, viewing litigation as a device for influencing primary‐activity behavior rather than as a stand‐alone search for truth. Its main finding is as follows: when a given evidentiary contest concerns the primary‐activity behavior of one of the parties, placing the burden of proof on the other party maximizes the incentive impact of that contest. Although counterintuitive, the finding accords with a striking regularity in existing law. The adversary of the incentive target typically does bear the burden of proof with regard to the target’s primary‐activity behavior.