Abstract
This Article analyzes the interaction between the burden of proof and evidentiary discovery rules. Both sets of rules can affect incentives for prospective injurers to invest in evidence technology (i.e., ex ante investments that increase the quantity and quality of evidence in case an accident occurs). This interaction becomes acutely important in the private international law setting, where jurisdictions are split on the question whether the burden of proof should be treated as a substantive or procedural matter. When a tort occurs in Europe, but the case is litigated in American courts, treating the burden of proof as a procedural matter preserves the complementarity of incentives created by the burden of proof and evidentiary rules. Conversely, treating the burden of proof as a substantive matter creates a mismatch in incentives created by the burden of proof and evidentiary rules
Department
Law
Subject
Evidence--Burden of Proof
Publication Date
1-2022
Journal Title
Theoretical Inquiries in Law
Publisher
Tel Aviv University
Document Type
Article
Recommended Citation
Francesco Parisi, Daniel Pi & Alice Guerra, Access to Evidence in Private International Law, 23 THEORETICAL INQ. L. 77 (Jan. 2022).