Burden Of Proof Research Articles

Interstate Air Pollution Governance in the United States: Exploring Clean Air Act Section 126

Air pollution is arguably the most pressing human health concern today, accounting for approximately 7–9 million premature deaths worldwide. In the United States, more than 40% of early deaths caused by air pollution are assessed to be caused by emissions produced by neighboring states. This article examines one of the governance mechanisms used by the U.S. to address this issue: section 126 of the Clean Air Act. Critical factors including case length, evidence used, and case outcome are compiled for the population of section 126 petitions submitted from 2000–2022. This evidence is assessed using comparative case analysis. The findings reinforce two issues with the petition process already identified in the literature–the use of cost as a proxy for significance and the excessive and unclear burden of proof placed on downwind states–adding texture to the latter issue by examining the modeling techniques used by downwind states. This analysis identifies lengthy response timelines as an additional issue and calls to attention the infrequency with which the EPA has formally accepted petitions. Collectively, these issues increase the cost, complexity, and unpredictability of filing a section 126 petition.

What is wrong with exclusivism? Religious exclusivism between epistemic overconfidence and epistemic humility

I compare the discussion on exclusivism in religion to the discussion on exclusivism in general. With defenders of religious exclusivism, such as Plantinga, I argue that it is a subset of general exclusivism and is as little blameworthy as the latter is. This explains why defenders of religious exclusivism are right in assuming that the burden of proof is on the shoulders of the critics of exclusivism. Yet, this answer solves only part of the problem. It answers only the first order question of whether it is legitimate to hold exclusivist truth claims in religion. It does not answer the second order question of how, in what spirit, they should be held. I argue that there are contexts in which exclusivist truth claims should be held in a humble fashion, for example contexts in which (cognitive) ambiguity reigns. If they are held in those contexts in an overconfident fashion, they are epistemically and/or morally blameworthy. Since religion is characterized by a measure of (cognitive) ambiguity, exclusivist religious truth claims should be held in a humble fashion. They are thus blameworthy if held in an overconfident fashion. Yet, if held in a modest spirit, there is nothing wrong with religious exclusivism.

Uncertainty and precaution in hunting wolves twice in a year: Reanalysis of Treves and Louchouarn.

Management of wolves is controversial in many jurisdictions where wolves live, which underscores the importance of rigor, transparency, and reproducibility when evaluating outcomes of management actions. Treves and Louchouarn 2022 (hereafter TL) predicted outcomes for various fall 2021 hunting scenarios following Wisconsin's judicially mandated hunting and trapping season in spring 2021, and concluded that even a zero harvest scenario could result in the wolf population declining below the population goal of 350 wolves specified in the 1999 Wisconsin wolf management plan. TL further concluded that with a fall harvest of > 16 wolves there was a "better than average possibility" that the wolf population size would decline below that 350-wolf threshold. We show that these conclusions are incorrect and that they resulted from mathematical errors and selected parameterizations that were consistently biased in the direction that maximized mortality and minimized reproduction (i.e., positively biased adult mortality, negatively biased pup survival, further halving pup survival to November, negatively biased number of breeding packs, and counting harvested wolves twice among the dead). These errors systematically exaggerated declines in predicted population size and resulted in erroneous conclusions that were not based on the best available or unbiased science. Corrected mathematical calculations and more rigorous parameterization resulted in predicted outcomes for the zero harvest scenario that more closely coincided with the empirical population estimates in 2022 following a judicially prevented fall hunt in 2021. Only in scenarios with simulated harvest of 300 or more wolves did probability of crossing the 350-wolf population threshold exceed zero. TL suggested that proponents of some policy positions bear a greater burden of proof than proponents of other positions to show that "their estimates are accurate, precise, and reproducible". In their analysis, TL failed to meet this standard that they demanded of others.

An appraisal of contemporary issues in proof of medical negligence in Nigeria

Medical negligence as a tort is not materially different in law from other forms of negligence. However, an oft-overlooked proposition holds that the process of proving medical negligence is the most difficult of all proves in the law of tort. Indeed, in medical practice, the existence of a legal duty of care is of the very essence and presents no difficulty. Also, that there has been a breach of that duty, may be presumed or inferred from the plaintiff injury or harm. What is however considered extremely difficult is the process of proving that the injury or harm suffered was a direct consequence of the breach of the duty owed to a patient. Litigants and their lawyers are suddenly confronted by a mirage of challenges, described as "fortress of Jericho walls" and which they must overcome if their case is to succeed. This research therefore examines issues relating to the difficulties experienced in the process of proving medical negligence in Nigeria and the mitigating options. The study adopts a doctrinal method of study. The primary and secondary sources of the material relied on were analysed through a descriptive and analytical method. The study observes that the fault-based litigating system appears to be unduly protective of the medical practitioners, to the detriment of the injured patients. Consequently, it is recommended that Nigeria should adopt approaches that can help ease the burden of proof placed on an already burden-laden patient.

The Burden of Proof on Gang-related Property: Defunctionalization and Regulation

The Burden of Proof on Gang-related Property: Defunctionalization and Regulation

Responsible migrants: rights-claiming, risks and costs at the shelter

ABSTRACT Spaces of migration comprise multiple processes of knowledge-production operating at the nexus of state, non-state actors and individuals. Looking at a domestic migrant shelter in Singapore reveals how it acts as an alternative site of knowledge-production. Interviews with migrant workers at the shelter describe how they learn to ‘stand up’ for themselves by learning about laws, rights and job alternatives. At the same time, they reveal how risks and costs lie on the other side of rights-claiming; similarly, while jobseeking is an empowering act, opportunities for entrepreneurship fuel the neoliberal subjectification of migrant workers and distances the state from its duty of care. Using ‘responsibilisation’ as a lens helps make sense of the overlaps between systemic constraints and forms of agency that co-exist within the migration regime. Where the shelter offers opportunities for change, it also problematically reproduces a status quo where rights-claiming, burden of proof and jobseeking are constructed as the responsibility of migrants and NGOs, and beyond the remit of the state.

Standards for Determining Materiality in Securities Misrepresentations and Suggestions for Improving Price Sensitivity Standards

With the development of the securities market, cases of false statements are increasing day by day. Since the criteria for determining "materiality" have not yet been unified, there are disputes in academia and judicial practice. These controversies primarily revolve around three theoretical approaches: monism, which focuses solely on price sensitivity; dualism, which considers both price sensitivity and investment sensitivity; and ternary theory, which introduces additional criteria. This paper undertakes a comprehensive analysis of international standards for determining "materiality" and suggests that China should not only emphasize price-sensitive criteria but also incorporate investment-sensitive assessments to adequately reflect the complexities of modern financial markets. The paper also critiques the reliance on the price sensitivity standard as overly simplistic and potentially insufficient for capturing the full impact of false statements on market behavior. To address these shortcomings, the paper advocates for the involvement of professional institutions to independently verify the impact of false statements on stock prices, thereby ensuring more objective and reliable assessments. Furthermore, it is recommended that the burden of proof be shifted more heavily onto defendants in securities litigation, requiring them to substantiate their claims more rigorously.

EVIDENTIARY STANDARDS OF THE UN COMPENSATION COMMISSION: TAKEAWAYS FOR UKRAINE

Background: According to international law, a state responsible for internationally wrongful acts is obliged to fully compensate for the damage caused by such acts (Responsibility of States for Internationally Wrongful Acts, Art. 31). Accordingly, victims who suffered losses as a result of such actions are entitled to compensation. To implement these fundamental principles, the Committee of Ministers of the Council of Europe established the Register of Damages Caused by the Aggression of the Russian Federation against Ukraine. It is just the first of three elements of the future compensation mechanism for Ukraine (the other two, yet to be created, are the compensation commission and the compensation fund). However, to get compensation, every victim of the war will have to prove his or her case before the future commission. In this regard, the evidentiary standards will become critical. To understand how future compensation mechanism for Ukraine could operate, it is useful to study the practice of similar institutions. The UN Compensation Commission deserves special attention, as it could provide valuable insights into how war-related damage must be proven to warrant compensation. Methods: The article’s primary purpose is to explore the approach adopted by the UN Compensation Commission with respect to evidentiary standards. To this end, the article will first outline the general framework of the Commission's work, its purpose and organisational structure. It is then necessary to describe the categories of claims reviewed by the Commission, since - as will be shown later - the Commission applied a diversified approach: different categories of claims were subject to different evidentiary standards with varying degrees of exactingness. This differentiation was necessitated by the prioritisation of claims and the use of an expedited procedure for reviewing first-priority claims. This main part of the study will focus on the Commission's documents that illustrate its approach to evidentiary standards. First, the three evidentiary standards applied by the Commission will be outlined and explained: proving the incident alone with no need to establish the extent of the damage; proving damage on the basis of a "reasonable minimum" of evidence appropriate in the circumstances; and proving damage on the basis of documentary and other evidence sufficient to establish the extent of the damage. The article will then analyse how these three standards were applied in practice to the selected categories of personal injury claims. Finally, the conclusions will consider what takeaways can be drawn from the Commission's case law for the Ukrainian case. Results and Conclusions: In times of armed conflict and occupation, gathering evidence of harm is notably challenging for victims due to various reasons. This fact calls for special consideration from international compensation mechanisms, which cannot adhere to the rigid formalities used in regular court proceedings. That is why the international law of evidence is adaptable and seeks to adjust to claimants' unique situations. This adaptability is exemplified by the relaxed and diversified standards of proof utilised by the UN Compensation Commission. Diversifying the standards of proof in the practice of the UN Compensation Commission consisted of applying three different approaches to different categories of claims. In addition, the burden placed on claimants was eased by presumptions developed in the Commission's case law. The pioneering approaches of the UN Compensation Commission should be applied and refined within an international compensation mechanism for Ukraine. This entails prioritising individual claims, introducing both regular and expedited tracks for processing claims, and ensuring flexibility with regard to the burden of proof and evidentiary standards to accommodate the challenges of wartime evidence collection without overwhelming victims.

A Scoping Review of Causal Associations between Occupation and Cancer Occurrence and Legal Burden of Proof.

Occupational diseases, characterized by the gradual accumulation of work-related harmful effects over extended periods, often lack a distinct, identifiable incident causative of the disease. This ambiguity in pinpointing the work-relatedness of such diseases stems from the intricate interplay between occupational risks, workers' pathophysiological predispositions, and pre-existing health conditions, all of which evolve slowly over time. Consequently, establishing a definitive causal relationship between occupational exposure and disease manifestation becomes a pivotal, yet challenging, aspect in securing industrial accident insurance benefits. In contrast to occupational accidents, where causality is relatively more discernible, the complexity escalates in the context of occupational diseases. Typically, employers maintain the majority of data pertinent to establishing causality, but this data is frequently inadequate. Furthermore, the onus of proving the work-relatedness of a disease falls on the worker, a process that necessitates specialized medical knowledge, thereby compounding the difficulty. Imposing the burden of proof on workers in occupational disease litigation could lead to a lapse in worker protection. This paper critically explores methodologies to safeguard workers, focusing specifically on the burden of proof concerning causality in occupational diseases. This analysis aims to highlight the challenges workers face in establishing a connection between their work and disease, proposing potential legal and policy solutions to ensure more equitable and just outcomes in occupational disease claims.

Значение exceptio non adimpletu contractus при понуждении к исполнению встречного обязательства в натуре

The article addresses topical issues of regulation of counter-performance of obligations, formation of exceptio non adimpleti contractus in Roman private law in different periods, comparison of synallagmatic obligations with contractus innominati, burden of proof to seek specific performance under a mutual obligation, the formation of doctrinal positions of German scientists regarding the independence of each of the obligations that arise from the synallagmatic agreement. The court practice of applying paragraph 3 of Art. 328 of the Russian Civil Code and doctrinal positions on the substance of the requirements from the synallagmatic contract are studied. The author proposes a possible alternative model for regulating claims for the fulfilment of counter-obligation (de lege ferenda) and criticises the current model of the absence of claim before the fulfilment of one’s own obligation, which follows from a literal constriction reading of paragraph 3 of Art. 328.

Can there be responsible AI without AI liability? Incentivizing generative AI safety through ex-post tort liability under the EU AI liability directive

Abstract In Europe, the governance discourse surrounding artificial intelligence (AI) has been predominantly centred on the AI Act, with a proliferation of books, certification courses, and discussions emerging even before its adoption. This narrow focus has overshadowed other crucial regulatory interventions that promise to fundamentally shape AI. This article highlights the proposed EU AI liability directive (AILD), the first attempt to harmonize general tort law in response to AI-related threats, addressing critical issues such as evidence discovery and causal links. As AI risks proliferate, this article argues for the necessity of a responsive system to adequately address AI harms as they arise. AI safety and responsible AI, central themes in current regulatory discussions, must be prioritized, with ex-post liability in tort playing a crucial role in achieving these objectives. This is particularly pertinent as AI systems become more autonomous and unpredictable, rendering the ex-ante risk assessments mandated by the AI Act insufficient. The AILD’s focus on fault and its limited scope is also inadequate. The proposed easing of the burden of proof for victims of AI, through enhanced discovery rules and presumptions of causal links, is insufficient in a context where Large Language Models exhibit unpredictable behaviours and humans increasingly rely on autonomous agents for complex tasks. Moreover, the AILD’s reliance on the concept of risk, inherited from the AI Act, is misplaced, as tort liability intervenes after the risk has materialized. However, the inherent risks in AI systems could justify EU harmonization of AI torts in the direction of strict liability. Bridging the liability gap will enhance AI safety and responsibility, better protect individuals from AI harms, and ensure that tort law remains a vital regulatory tool.

Burden of proof: The erosion of and ancient rule

The ancient rule of the burden of proof contained in Article 2697 of the Italian Civil Code has experienced a significant erosion in recent years due to case law. The judge often creates presumptions and distributes the burden by asking the party that has the greatest possibility or facility to provide evidence. The rule of the burden of proof, moreover, was traditionally understood to mean that the burdened party had to provide full evidence, only in such cases the burden could be considered to have been met. But even this rule, in many areas, is no longer respected, as case law uses quite different standards of proof, even settling for the so-called prevailing probability. Lastly, a further erosion factor is related to the increasingly frequent use of court-appointed expert witnesses to provide the judge with elements useful for the decision, so that the reference to the party responsible for providing the evidence is disregarded.

Proof in Administrative Law: the German Perspective

German administrative law is characterized by the idea that the authorities and, in the case of a lawsuit, the administrative judges have sovereignty over the investigation of the facts ‐ the so-called principle of ex officio inquiry (Section 1). In the relationship between the official and judicial investigation of the facts, it is striking that the judicial duty to investigate is not limited by the official duty to clarify the facts. This shift in the direction of a judicial right of final decision, also with regard to the factual basis of administrative decisions, derived from the German Constitution (Article 19(4) Grundgesetz) can probably only be explained by the historical background of National Socialist despotism. The article reveals that the instruments of evidence collection (Section 2), the consideration of evidence (Section 3), the evidential standard (Section 4) and the burden of proof (Section 5) are based on the principle of ex officio inquiry. This principle is based on the assumption that only a perceivable set of facts can be established. Therefore, practice and sectoral administrative laws show that in areas where obtaining knowledge is particularly difficult, the principle of ex officio investigation and the law of evidence based on it must be modified and, in particular, strong participation of the parties in obtaining the facts must be made possible. At the same time, the German law of evidence is based on theories and instruments of civil procedural law, which is characterized by the principle of production of evidence. Against this background, the article aims to illustrate that, contrary to the first impression, German administrative law does not implement the principle of official investigation in its pure form, but it is understood in a refined open and area-specific manner.

Proof of the Facts in Belgian Administrative Law: An Analysis of the Case Law of the Belgian Council of State

This text discusses proof of the facts in Belgian Administrative Law. In Belgium a general comprehensive theory on proof of the facts in administrative law is currently missing. There is no general Belgian legislative framework on evidence or proof of the facts as such. Monographs or academic studies that discuss proof in administrative law as such are lacking too. Therefore, the analysis in this article is based on the case law of the general and highest administrative court, the Belgian Council of State. This text discusses questions concerning the division of the burden of proof, the object of proof, the degree of certainty on the facts required, the means of evidence and the determination of their value.

Negative legal facts as a subject of proof in administrative and civil proceedings

The authors of the article investigate the problems of dividing legal facts into positive and negative and prove that this division should be carried out only according to the criterion of the form of manifestation of the relevant circumstances. It is inappropriate to divide legal facts into positive and negative according to the criterion of the consequences they cause. Positive and negative legal facts are categories of the science of procedural (evidential) law. They are important in both civil and administrative proceedings. A negative legal fact denotes a circumstance that does not exist in reality and its absence has specific legal consequences. A negative legal fact is a circumstance that does not exist, so it is difficult to prove it in court. In judicial practice, an approach has developed, according to which the proof of a negative legal fact is connected with the proof of its opposite positive legal fact. The authors of the article demonstrate the process of proving a negative legal fact using the example of proving in court the fact of concluding a civil deed, in respect of which the requirement for a mandatory written form has not been met. If the interested party provides adequate evidence that proves a positive legal fact (the existence of a deed), then the opposite negative legal fact (the absence of a deed) is refuted. If the interested party does not prove the existence of a positive legal fact, then the opposite negative fact is considered proven. A similar approach is observed in administrative proceedings. The legislator places the burden of proof on the party interested in proving a positive legal fact. Thus, if the inaction of a public authority is contested, the burden of proof of the fact that the corresponding necessary actions have been taken rests with this authority. And the burden of proving the fact of the existence of damage caused by illegal individual acts of the relevant bodies rests with the plaintiff.

Reasonableness: a guiding light—A probe into the World Court’s landmark judgment on substantive standards of investment protection and its takeaways for investment treaty tribunals

Abstract In its recent Judgement on Certain Iranian Assets, the International Court of Justice (ICJ) extensively addressed various international investment law issues that arose from the interpretation and application of an FCN (Friendship, Commerce, and Navigation). This represents a rare instance of the World Court addressing such matters to such a great extent. Chief amongst the Court’s holdings was the test put forward by the ICJ for assessing the ‘reasonableness’ of state measures for the purpose of evaluating their compliance with international standards of investment protection such as ‘fair and equitable treatment’ and ‘non-expropriation’. Acknowledging a trend in investment treaty jurisprudence, the Court went on to introduce more concrete yardsticks for examining the ‘reasonableness’ of state measures. The ICJ’s holdings on this matter could contribute to the enhanced ‘certainty’ and ‘predictability’ in decisions concerning ‘fair and equitable treatment’ standard and ‘non-expropriation’ obligation. The application of the tests of ‘reasonableness’ formulated by the ICJ in the field of investment treaty law could provide states with a greater margin of appreciation when exercising their ‘right to regulate’. In practical terms, as opposed to a stringent ‘proportionality’ analysis, the ICJ’s formulation of ‘reasonableness’ would mean an alleviated burden of proof for states to justify the propriety of their measures towards foreign investors.

Burden of proof to attribute risk factor contributions to the global burden of disease

Burden of proof to attribute risk factor contributions to the global burden of disease

Mental Health Exemptions to Criminal Responsibility

Ill mental health is a key category for exempting individuals from criminal responsibility. Even in cases where a defendant has been found to have carried out the act, if mentally ‘ill enough’, the person could either be fully exempt from criminal responsibility and found not guilty – or be partially exempt and receive a reduced or special sentence on mental health grounds. Such outcomes might entail diversion into mental health treatment, sectioning – or release. In determining whether a mental health exemption is warranted in individual cases, ordinary practice is that psychologists or psychiatrists forensically assess the severity and nature of the accused’s impairment or disorder. While this might seem like a straightforward medical-juridical procedure of establishing evidence, this article uses a modified ‘genealogy of the present’ to show how mental health exemptions to criminal responsibility involve significantly more complexity. Looking to Norway and the UK, this article highlights differences in frameworks and implementation, including on matters of burden and nature of proof, and on causality. The article uses as an example the particular category of terrorism-related cases to bring out some of the contingencies involved. By doing so, the article shows the tensions inherent to the principle and practice of mental health exemptions, and its location between law, medicine, politics and security. Funding AcknowledgementThis research was made possible by a STAIRS grant from the Norwegian Institute of International Affairs (NUPI), as well as by funding from C-REX (Centre for Research on Extremism), University of Oslo.

Analysis of Paths to Effectively Safeguarding Property Owners Rights in Property Service Disputes from a Defensive Perspective

This paper begins by analyzing the current status of property service disputes, examining the complex legal relationships, widespread and voluminous disputes, and intense group struggles, revealing the true state of property service disputes. The article then focuses on introducing the main types of damage to property owners rights in property service disputes to demonstrate the necessity of safeguarding property owners rights from a defensive perspective. Simultaneously, it presents the concept, types, qualifications for exercising the right of defense, and the statute of limitations, comprehensively analyzing the real challenges faced by property owners in property service disputes, including issues such as the lack of legal provisions, the absence of clear standards for defining property service quality, obstacles to property owners exercising the right of defense due to internal and external factors, and jurisdictional attributes causing inconsistent judgments in similar cases. Finally, the paper proposes measures to improve the system for property owners right of defense and the protection of legitimate rights and interests in property service disputes, including the rational allocation of burden of proof, enhancing legal provisions for standardized discretion, refining the evaluation mechanism for the property service industry, and leveraging the primary role of the property owners committee and the supervisory role of property owners.

Research on Burden of Proof in Multinational Corporation Corruption Related to China

At present, the world economy is interconnected, and multinational corporation are developing rapidly. In line with the development trend of the world, China has continued to deepen its opening-up policy and attracted major multinational companies to enter the country. However, in addition to active foreign investment, it is accompanied by increasing corruption in multinational corporations. In recent years, China has also paid attention to the legislation and judiciary to prevent corruption, but there are still many problems in practice. Among all issues, the burden of proof is one of the most vital one, which profoundly affects the process and efficiency of the trial, but it has been unresolved, triggering heated discussions among scholars at home and abroad. The distribution of the burden of proof in the judicial process of anti-corruption presents two main issues: the excessive burden of proof of the plaintiff and the unclear jurisdiction of corruption in China. Then proposes to solve the above problems by appropriately introducing the inversion and transfer of the burden of proof and the case diversion before trial are put out. By further improving the evidence chain, it is committed to promoting the further advancement of China's anti-transnational-corruption cause.