Evidentiary Burden Research Articles

The improvement of judicial protection of marine environment in China: based on the analysis of 2,443 judicial cases

With the proliferation of human activities, a series of marine ecological and environmental problems have arisen. Judicial application is important to test legislative achievements, explore judicial difficulties, and examine the compliance with the law. There is no case law in China and the impact of judicial decisions on the protection of marine environment is therefore indirect. Judicial decisions can reflect the implementation of the Marine Environmental Protection Law and play a crucial role in improving the marine environmental protection. An analysis of 2,443 cases related to marine environmental protection heard by courts at all levels across China from 1 January 2019 to 31 December 2023 has been conducted. The findings indicate an overall downward trend in cases related to marine environmental protection, suggesting positive governance outcomes to some extent. However, certain problems remain in the judicial protection of marine environment. Therefore, legislative efficiency should be properly increased and an independent crime for marine environmental pollution should be introduced to further clarify the legal bases for marine environmental protection. The intelligent trial assistance technology should also be applied to shorten trial time, improve trial efficiency, and unify judicial rules. The People’s Courts should play an active role in the provision of evidence and specific evidentiary burden provisions for different types of marine environmental pollutions should be proposed. The data sharing channels between various systems should be facilitated and the functionality for case referral should be developed for the coordination of administrative enforcement and criminal justice within a unified administrative enforcement platform.

The ‘Manifest Injustice’ Clause in Article 4 of the Hague Convention on Private International Law: Applicability in International Commercial Contract Disputes

This paper critically examines the ‘manifest injustice’ clause in Article 4 of the Hague Convention on Choice of Court Agreements, focusing on its applicability in international commercial contract disputes. The clause serves as a safeguard to ensure fairness in choice of court agreements by allowing courts to set aside agreements that result in unjust outcomes for one of the parties. The paper explores various contexts in which this clause applies, such as situations involving unequal bargaining power, fraud, duress, coercion, procedural injustice, and unconscionable terms. It also discusses the significant legal challenges associated with its application, including the lack of a clear definition, variability in judicial interpretation, conflicts with the principle of party autonomy, and evidentiary burdens. The paper concludes that while the ‘manifest injustice’ clause is a critical tool for promoting fairness in international commerce, its effectiveness depends on the development of clearer guidelines and more consistent jurisprudence to harmonize its interpretation across jurisdictions, thereby enhancing its role in ensuring justice and equity in cross-border contractual relationships.

Navigating the legal complexities of telesurgery in China: An assessment of tort liability and the path forward.

This study investigates the legal challenges posed by telesurgery, an emergent healthcare modality facilitated by advancements in 5G and Artificial Intelligence. It highlights the urgent need for a comprehensive legal framework reconciling the complexities of healthcare delivery and technology integration. The paper examines the Chinese adjudication of negligence and the evidentiary hurdles in telesurgery, interrogating the application of the 'reasonable doctor' standard, the intricate causation-negligence nexus and the distribution of evidentiary burdens. The analysis contends that current statutes require revision to apportion telesurgery-induced damages fairly. Further, it proposes the formation of multidisciplinary committees to oversee medical technology, calls for systemic reforms, more reasonable liability differentiation and fortifying medical insurance frameworks.

Acquisitive Prescription of Artwork and Other High-Value Movables: A Comparative Case Study of Litigation and Legislation in Louisiana, Germany, and Russia

Abstract Using artwork and other valuables as a high-stakes case study, the Article discusses the law governing acquisitive prescription of movable property in Louisiana, Germany, and Russia. Rather than merely depicting what the law is from the perspective of a legal system’s respective silo, the Article develops a unique screen of test questions that have been intensely discussed by the courts and literature of the three sample jurisdictions when confronting prescription cases. What barriers, if any, does a jurisdiction erect with regard to the operations of prescription law? How are evidentiary burdens allocated with regard to good faith? Does the jurisdiction recognize tolling doctrines that do not reside in legislated law? What is the relationship between prescription and unjust enrichment? Controversies over art work and other high-value movables have inserted a powerful dose of drama into the discussion of these topics, which would have otherwise not received much attention in the public space. The Article concludes with the diagnosis that prescription law, one of property law’s core staples, is a fertile area of scholarly research with a particularly rich comparative yield. Louisiana, Germany and Russia differ widely as to the designs and operations of their prescription laws, which ultimately reflects distinct policies with regard to balancing the protection of ownership with the transformative effects of possession over time.

Antitrust Unchained: The EU’s Case Against Self-Preferencing

Abstract Self-preferencing is the symbol of the competition policy Zeitgeist in digital markets. Large online platforms acting as gatekeepers to their ecosystems and engaging in a dual mode intermediation are accused of taking advantage of their hybrid business model by granting preferential treatment to their own products and services. Alongside the recent legislative initiatives undertaken around the world to impose a neutrality regime over digital gatekeepers by targeting different forms of self-preferencing, this practice is also emerging in Europe as a new antitrust theory of harm advanced by courts and competition authorities. In the aftermath of the General Court’s decision in Google Shopping and against the risk that the new label may merely provide antitrust enforcers with the opportunity to skip the legal standards and evidentiary burdens required to prove traditional anticompetitive behavior, this paper investigates whether and to what extent self-preferencing could be considered a new standalone offence in EU competition law.

Ethics review and conversation analysis

In this case study, I address the procedural ethics of conversation analysis (CA) and the collection of naturally occurring mundane interactions. I draw from the challenges that emerged from the institutional ethics review of the HIV, health and interaction study (the H2I Study), a CA project that sought to identify the practices through which normative assumptions of HIV and other health conditions are produced in conversations. Consistent with CA’s preference for naturally occurring interactions, the H2I Study collected and analysed everyday telephone calls involving people living with HIV. This article offers practical strategies CA researchers might use to navigate two ethical concerns raised about the collection of naturally occurring mundane interactions. The first questions the merits of collecting naturally occurring mundane interactions. For those unfamiliar with CA, the specific advantages of analysing naturally occurring mundane interactions may not be self-evident. This places an evidentiary burden on CA researchers to warrant the collection of this type of data. To address this concern, I suggest demonstrating in ethics applications the analytic value of CA using publicly available interactions. The second concern questions the use of verbal consent necessary for the collection of naturally occurring mundane interactions. Like most CA research, the H2I Study required flexible informed consent protocols appropriate for spontaneous and unpredictable interactions. Drawing from within and outside the CA literature, I offer three rationales for the use of verbal consent. This article is written as a practical resource for conversation analysts seeking approval from their research ethics board (REB) and for REBs who might be unfamiliar with CA research. This article contributes to a small but growing body of literature that documents not only the kinds of challenges CA researchers encounter from institutional ethics review, but the specific procedural ethics they may employ to secure ethics approval.

Nowcasting towards sustainable SARS-CoV-2 endemicity

Nowcasting towards sustainable SARS-CoV-2 endemicity

Evidentiary Burden and Application of Sell v. United States

In United States v. James , 938 F.3d 719 (5th Cir. 2019), the U.S. Court of Appeals for the Fifth Circuit reviewed a district court's order to medicate a defendant involuntarily per Sell v. United States , 539 U.S. 166 (2003), and determined that the district court must meet the standard of clear

On the Status of Rights

On the Status of Rights

Prätorischer Vergleich and municipal mediation offices – the historic development of alternative dispute resolution schemes in Austria and what they mean for contemporary legislators?

The text aims to highlight certain alternative dispute resolution (ADR) methods existing in Austrian civil law since the 19th Century. Austrian law and legal tradition, closely linked to its Polish counterparts, serve as sources of inspiration for Polish scholars and legislators. Nowadays, possibly more than ever, the heavy caseload of modern courts combined with evidentiary and procedural burdens call for the increased importance of ADR. The EU actively promotes the development of ADR. Therefore, the evolution of the approach to out of court dispute resolution methods in Austria is depicted against a widely understood historical background, in connection with the German legal tradition. Furthermore, the text describes this evolution as related with the deep political changes in Austria (Constitution of 1867) and the enactment of a modern civil procedure code in 1895. The authors concentrate on two institutions: municipal mediation offices (Gemeindevermittlungsämter) and the special pre-court settlement before the District Court (prätorischer Vergleich), comparing the latter with the Polish regulation of court conciliation proceedings. This analysis leads to certain conclusions regarding the inspiration that the Austrian legislation may serve as in future.

Directors’ Duty of Care in China: Empirical and Comparative Perspective

The adoption of director’s duty of care in the 2005 revision of the PRC Company Law made significant progress in holding directors accountable for their wrongdoings. However, certain defects still exist, most importantly the lack of a specific standard for the duty of care in the legislation. Therefore, this article adopts an empirical and comparative approach in reviewing Chinese duty of care cases in comparison with major jurisdictions such as the United Kingdom and the United States. The 86 sample cases hand-collected from the ten-year period from 2011 to 2020 reveal that the number of duty of care litigation in China is still far lower than other types of company disputes, despite an increasing trend. This article finds a divergence in judicial practice concerning at least two different standards of the duty of care, with an array of non-uniform factors considered in the judgments. Accordingly, this article adopts a selective approach concerning best practices in major jurisdictions globally and proposes several solutions specifically catered to China’s legal and commercial context, including the unified adoption of the objective reasonable person standard, the suggestion that a wholesale transplant of the business judgment rule is undesirable while some of its elements could be borrowed for reference, the shifting of evidentiary burden to the defendants and the promotion of director’s liability insurance. By incorporating these changes, China’s company law stands to benefit from striking an appropriate balance between director’s authority to manage the companies and shareholder’s right to hold them accountable.

Race and Reasonable Suspicion

The current political moment requires us to rethink the ways that race impacts policing. Many of the solutions will be political in nature, but legal reform is necessary as well. Law enforcement officers have a long history of considering a suspect’s race when conducting criminal investigations. The civil rights movement and the progressive criminal justice decisions of the Warren Court mitigated the explicit use of race as a factor, but there is ample evidence that many modern police officers still openly or implicitly use race to guide their investigative decisions. This article examines and critiques how courts have historically analyzed the question of race in the context of determining reasonable suspicion or probable cause. There are two constitutional provisions that regulate whether and how the police can use race as a factor to meet the legal standards. Under the Fourth Amendment, police can only use race as a factor if race is relevant to the likelihood that the suspect is engaged in criminal activity. In theory, there could be a relationship between race and criminal activity in a narrow subset of cases. But in reality, police and courts rely on dubious anecdotal data to support this relationship, and conduct flawed statistical analysis to calculate the strength of the relationship. Also, much of the data that exists is tainted by decades of biased policing and prosecution practices. Because there are a small subset of cases in which a correlation between race and crime may exist; we need a legal reform that requires prosecutors to demonstrate the existence and strength of the correlation through empirical data rather than through the subjective experiences of law enforcement. Under the Equal Protection Clause, police officers may only explicitly use race to support individualized suspicion if the use of race is narrowly tailored to serve a compelling state interest and there is no race-neutral factor that would also satisfy that interest. Although one would expect this standard to severely limit the use of race in criminal investigations, courts have allowed police to use race in a surprising number of cases. In many cases, courts do not even find that the explicit use of race triggers strict scrutiny. In other cases, when so-called race neutral factors trigger disparate impact, the evidentiary burden shifts to criminal defendants to prove that the race-neutral factor was applied with discriminatory purpose, a standard which is nearly impossible to establish. Even when strict scrutiny is triggered, courts have often been willing to conclude that crime control is a compelling state interest and that the use of race is narrowly tailored to meet that interest. This article argues that courts in criminal cases must apply an Equal Protection test identical to the test used in civil cases in order to limit the use of race in criminal investigations, thereby limiting the practice to the rare instances when it is truly necessary.

Through the Anti-Monopoly Lens: What Constitutes ‘Unfairly High Patent Pricing’ in China?

Abstract This article proposes that a patentee’s unilateral pricing of proprietary technology should be presumed legal per se under Sec. 55 IPR immunity framework provided by the Anti-Monopoly Law, unless a plaintiff overcomes all three of the following hurdles with actual evidence: (i) the patentee enjoys a dominant market position; (ii) such pricing constitutes de facto refusal to deal with or significant ‘margin squeeze’ for subsequent or follow-on innovators; and (iii) the constructive refusal or ‘margin squeeze’ would likely foreclose dynamic competition. This seemingly high evidentiary burden is justified by three cumulative resources: (i) the very patent mechanism in facilitating innovation, including a solid promise of supra-competitive profit through the right to lawfully exclude competition by imitation, and thus the instigation of a virtuous circle of dynamic competition through pivoting on the critical link of competition by substitution; (ii) the prevalent cautious attitude in sister jurisdictions when dealing with the concept; and (iii) the inevitable limitations of antitrust law, manifested in the administrative and error costs due to lack of proper information and economic analysis methodologies on dynamic efficiency. Through a detailed illustration with six specific scenarios, we see in a quasi-quantitative way that the actual likelihood of unilateral foreclosure on dynamic competition, even in the case of a monopolist patentee, is extremely low despite the existence of a theoretical possibility. Facing this meager likelihood and information deficiency, it would be unwise for a Chinese court to incur enormous costs of searching for a possibility in every case, with the mere guidance of a vague rule-of-reason framework.

Secularism and the Citizenship Amendment Act

This paper examines the provisions of the Citizenship Amendment Act (CAA) against the backdrop of the citizenship provisions of the Indian Constitution. It argues that contrary to popular belief, the discrimination against Muslim immigrants which seems to form a part of the CAA is not a phenomenon of relatively recent vintage. However, this paper also argues that the CAA is unconstitutional by today’s standards because the conditions which existed during the days of India’s dominionship, between August 1947 and January 1950, no longer exist today. It posits that the CAA is discriminatory for several reasons though not for the insidious, mala fide reasons that are usually attributed to the government in popular discourse. However, this paper also argues that India’s citizenship laws amplify the problems with the CAA, by casting the evidentiary burden of proof on Indians to prove their citizenship, by abandoning the principle of citizenship by birth, by failing to give judges of foreigners tribunals security of tenure, and by omitting a safe harbor for Muslim “dreamers” who illegally came to India as minors with their parents, by no fault of their own, and who have only known India to be their homeland since childhood.

Asymmetric Stakes in Antitrust Litigation

Private antitrust litigation often involves a dominant firm being accused of exclusionary conduct by a smaller rival. In such cases, the defendant generally has a much larger financial stake in the outcome. We explore the implications of this asymmetry in a model of litigation with endogenous effort. Asymmetric stakes lead antitrust defendants to invest systematically more resources into litigation, causing a downward bias in the plaintiff's success probability---a distortion that carries over to ex ante settlements. Enhanced damages cannot prevent this systematic bias. We show that, in most private litigation contexts, asymmetric stakes do not create any distortion, because the prospect of ex post (post-judgment) settlement makes the litigants behave as if the stakes are symmetric. But this does not occur in antitrust, because it proscribes certain ex post settlements. We consider how courts might mitigate the distortion by altering the plaintiff's evidentiary burden.

Proving FTA Preferential Tariff Eligibility: The Evidentiary Burden in Canada

As is the case with most free trade agreements, importers simply claim preferential tariff eligibility at the time of import. This claim can later be subject to verification by the customs administration in view of determining if it was valid. Proving preferential tariff entitlement requires assembling and presenting relevant facts and documents that support the claim. But just how much evidence is necessary in order to discharge that burden? In Canada there has always been a disconnect between what the Canada Border Services Agency (CBSA) deems necessary in the course of an origin verification and what the courts find satisfactory in the course of a judicial review. What follows are certain illustrations of that disconnect and how it usually gets resolved by Canadian courts. Origin verification, judicial review, NAFTA, burden of proof, non-originating status, eligibility considerations, evidence

Probability, Presumptions and Evidentiary Burdens in Antitrust Analysis: Revitalizing the Rule of Reason for Exclusionary Conduct

The conservative critique of antitrust law has been highly influential and has facilitated a transformation of antitrust standards of conduct since the 1970s and led to increasingly more permissive standards of conduct. While these changes have taken many forms, all were influenced by the view that competition law was over-deterrent. Critics relied heavily on the assumption that the durability and costs of false positive errors far exceeded those of false negatives. Many of the assumptions that guided this retrenchment of antitrust rules were mistaken and advances in the law and in economic analysis have rendered them anachronistic, particularly with respect to exclusionary conduct. Continued reliance on what are now exaggerated fears of “false positives,” and failure adequately to consider the harm from “false negatives,” has led courts to impose excessive demands of proof on plaintiffs that belie both established procedural norms and sound economic analysis. The result is not better and more reasonable antitrust standards, but instead an embedded ideological preference for non-intervention that creates a tendency toward false negatives, particularly in modern markets characterized by economies of scale and network effects. In this article, we explain how these erroneous assumptions about markets, institutions, and conduct have distorted the antitrust decision-making process and produced an excessive risk of false negatives in exclusionary conduct cases involving firms attempting to achieve, maintain, or enhance dominance or substantial market power. To redress this imbalance, we integrate modern economic analysis and the teaching of decision theory with the foundational conventions of antitrust law, which has long relied on probability, presumptions, and reasonable inferences to provide more effective means for evaluating competitive effects and resolving antitrust claims.

Error Costs in Digital Markets

Legal decision-making and enforcement under uncertainty are always difficult and always potentially costly. The risk of error is always present given the limits of knowledge, but it is magnified by the precedential nature of judicial decisions: an erroneous outcome affects not only the parties to a particular case, but also all subsequent economic actors operating in “the shadow of the law.” The inherent uncertainty in judicial decision-making is further exacerbated in the antitrust context where liability turns on the difficult-to-discern economic effects of challenged conduct. And this difficulty is still further magnified when antitrust decisions are made in innovative, fast-moving, poorly-understood, or novel market settings—attributes that aptly describe today’s digital economy. Rational decision-makers will undertake enforcement and adjudication decisions with an eye toward maximizing social welfare (or, at the very least, ensuring that nominal benefits outweigh costs). But “[i]n many contexts, we simply do not know what the consequences of our choices will be. Smart people can make guesses based on the best science, data, and models, but they cannot eliminate the uncertainty.” Because uncertainty is pervasive, we have developed certain heuristics to help mitigate both the direct and indirect costs of decision-making under uncertainty, in order to increase the likelihood of reaching enforcement and judicial decisions that are on net beneficial for society. One of these is the error-cost framework. In simple terms, the objective of the error-cost framework is to ensure that regulatory rules, enforcement decisions, and judicial outcomes minimize the expected cost of (1) erroneous condemnation and deterrence of beneficial conduct (“false positives,” or “Type I errors”); (2) erroneous allowance and under-deterrence of harmful conduct (“false negatives,” or “Type II errors”); and (3) the costs of administering the system (including the cost of making and enforcing rules and judicial decisions, the costs of obtaining and evaluating information and evidence relevant to decision-making, and the costs of compliance). In the antitrust context, a further premise of the error-cost approach is commonly (although not uncontroversially) identified: the assumption that, all else equal, Type I errors are relatively more costly than Type II errors. “Mistaken inferences and the resulting false condemnations ‘are especially costly, because they chill the very conduct the antitrust laws are designed to protect.’” Thus the error-cost approach in antitrust typically takes on a more normative objective: a heightened concern with avoiding the over-deterrence of procompetitive activity through the erroneous condemnation of beneficial conduct in precedent-setting judicial decisions. Various aspects of antitrust doctrine—ranging from antitrust pleading standards to the market definition exercise to the assignment of evidentiary burdens—have evolved in significant part to constrain the discretion of judges (and thus to limit the incentives of antitrust enforcers) to condemn uncertain, unfamiliar, or nonstandard conduct, lest “uncertain” be erroneously identified as “anticompetitive.” The concern with avoiding Type I errors is even more significant in the enforcement of antitrust in the digital economy because the “twin problems of likelihood and costs of erroneous antitrust enforcement are magnified in the face of innovation.” Because erroneous interventions against innovation and the business models used to deploy it threaten to deter subsequent innovation and the deployment of innovation in novel settings, both the likelihood and social cost of false positives are increased in digital and other innovative markets. Thus the avoidance of error costs in these markets also raises the related question of the proper implementation of dynamic analysis in antitrust.

Facilitación Probatoria en el Procedimiento de Tutela Laboral

La llamada prueba de indicios, contenida en el art. 493 del Código del Trabajo, es una regla establecida con la finalidad de facilitar el esfuerzo probatorio de la parte denunciante. Sin embargo, existe controversia en cuanto a la forma en que la regla debe operar. Así, hay quienes señalan que estaríamos frente a una alteración a la carga de la prueba, cargas probatorias dinámicas o, incluso, un estándar de prueba diferenciado. En el presente estudio, se expondrán razones para descartar tales ideas y situar a la prueba indiciaria como una presunción.

Evidentiary Burden of Proof regarding Exclusion Grounds for Asylum: The Case of the Turkish Military Asylum Seekers in Greece

Abstract Relations between Turkey and Greece were recently put to the test by the case of eight Turkish military personnel who fled their country by helicopter, following an attempted coup d’état on 15 July 2016. They landed in Greek territory, where they claimed political asylum. The legal dimension of the complex asylum procedures turned out to be decisive to the final outcome of the case. The judgment by the Greek Council of State integrates the international perception of onus of proof in its review of the exclusion grounds for applicants for international protection.