Evidentiary Burden Research Articles

The Protections Offered to Non-Pregnant Plaintiffs by the Pregnancy Discrimination Act

This paper examines application of Pregnancy Discrimination Act of 1978 (hereafter, the Act) to a plaintiff who is not pregnant when adverse action occurs. The results vary greatly and depend on circuit in which she files her claim. Many courts recognize rights of non-pregnant plaintiffs in a number of situations. In general, however, courts likely interpret Act more narrowly than drafters intended. This paper will explain burden faced by a plaintiff suing under Act and explore a range of situations in which non-pregnant women have sued under Act, as well as challenges faced by these plaintiffs.The first section of this paper explains purpose of Act and stereotypes that it was designed to combat. The second section explains evidentiary burden of a plaintiff bringing a lawsuit under Act. The final section examines several scenarios in which a plaintiff who is not pregnant at time that she faces an adverse employment action might consider bringing a suit.

Breaking Basel: The elements of the Basel Convention and its application to toxic ships

Abstract Developing nations seeking to apply the Basel Convention on the Control of Transboundary Movements in Hazardous Wastes to prevent toxic ships from entering their waters for shipbreaking are faced with legal uncertainty. This paper responds to that uncertainty by adopting a definition of the offence of illegal traffic in end-of-life ships, and further proposing evidentiary burdens and potential sources of proof for that offence. While a shipowner's intention to scrap a ship for its value in steel was previously difficult to prove, recent market analysis of the shipbreaking industry provides potential proof sufficient to halt the importation of a toxic ship.

The US Food and Drug Administration and Probiotics: Regulatory Categorization

Probiotics are living microorganisms that, when consumed, have the potential to confer a beneficial health effect. Unfortunately for purveyors of probiotic products, the system of regulation delineated in the Food, Drug, and Cosmetic Act is anything but "one size fits all." How a probiotic product is used or is intended to be used will govern the regulatory category or categories that the US Food and Drug Administration (FDA) will assign to the product. The extent and nature of the restraints and data-collection requirements that may be imposed on the marketing of a product hinge on how a product is categorized under the Act. More specifically, the categorization of a product governs the respective regulatory burdens of an industry sponsor and the FDA. Premarket systems, such as those for new drugs and biologics, place a heavy evidentiary burden on the sponsor of a product. Postmarket systems, such as those for dietary supplements, place, at least initially, a higher regulatory evidentiary burden on the FDA than on the product sponsor. This article explains regulatory categorizations under the Food, Drug, and Cosmetic Act and their effects regarding the federal regulation of probiotic products.

Impeaching Finnigan and Realigning the Corroboration Standard for Uninterested Single Witness Testimony with Precedent and Policy

Thomson3 3 and Finnigan4 were decided by different panels of Federal Circuit judges with one judge in common,5 only four and a half months apart. Both panels addressed whether an uninterested witness’s testimony must be corroborated, and both panels reached different outcomes. Although the latter of the two cases, Finnigan, attempted to reconcile the apparent inconsistencies, its craftsmanship suggests a veiled attempt to overrule Thomson,6 rather than distinguish it.7 Even though most courts have followed Finnigan8 instead of Thomson,9 Thomson deserves special attention--not only because it has not been overruled,10 but also because its holding is a natural extension of legal precedent and patent policy that may prove to be the more contoured rule to the issue at hand. Namely, whether an uninterested witness’s testimony submitted to prove patent invalidity must be corroborated with other evidence as a bright-line rule or whether courts should have the option to evaluate this testimony on a case-by-case basis. In other words, the issue discussed in the conflicting holdings of Thomson and Finnigan is whether a single witness’s testimony is ever sufficient to meet the evidentiary burden of clear and convincing evidence to prove patent invalidity.

New rights for old

Employees have a statutory right to request a change to their working hours or conditions to enable them to care for children (so long as they meet certain criteria). The Sex Discrimination Act 1975 enables workers to claim that a requirement, such as to work on a full‐time basis, is discriminatory. There are no eligibility requirements for this argument although there is an evidentiary burden. The penalties for breach of the Sex Discrimination Act are greater than the new right. To what extent do the new Flexible Working Regulations provide a right to a change in working patterns, and what role remains for the Sex Discrimination Act?

On Proof of Preferential Effect

This Article presents a comprehensive analysis of the manner in which the trustee of a debtor's estate may satisfy his burden of proof to demonstrate the preferential effect of a prebankruptcy transfer from a debtor to a creditor. The proposed framework, if adhered to by courts, will create a uniformity that gives preference law its proper reach and thereby reinforces its primary goal: equal treatment of similarly situated creditors (the equality principle). After examining the historical developments that have made a trustee's evidentiary burden administratively less complex, the Article discusses the Ninth Circuit's decision in Batlan v. TransAmerica Commercial Finance Corp. (In re Smith's Home Furnishings, Inc.) to illustrate how a court impairs the avoidance of preferential transfers when it creates a rule that improperly construes a trustee's evidentiary burden. The Article rejects the court's rule on the basis that it neither comports with the Bankruptcy Code's test for preferential effect nor with the evolution of the trustee's burden of proof. The Article concludes that, although the ultimate burden of proof rests on the trustee as he presents his prima facie case for preference avoidance, courts must give effect to state law presumptions in favor of the trustee. Failure to do so gives certain creditors procedural advantages, and possibly substantive advantages, to which they would otherwise not be entitled, thus compromising the equality principle.

Congressional Power to Reenact Section 5 of the Voting Rights Act: The Evidentiary Quandary

Much of the current debate over the preclearance provisions contained in section 5 of the Voting Rights Act concerns the important policy question whether Congress should renew it. This paper turns to a question in the debate that logically precedes but in practical terms would follow (though court challenge) a congressional decision to reenact section 5: does Congress have the power to do so?Beginning with South Carolina v. Katzenbach (1966), the United States Supreme Court has repeatedly upheld section 5 and other provisions of the Act as permissible exercises of congressional enforcement power. These cases, however, predate the Supreme Court's New Federalism revolution. As part of that revolution, the Court, in a series of recent cases has greatly restricted the ability of Congress to pass laws regulating conduct of the states under its enforcement powers granted in Section Five of the Fourteenth Amendment, which the Court has read as coextensive with its enforcement powers under the Fifteenth Amendment. Moreover, in Board of Trustees v. Garrett (2001), the Court made clear that it will search for an adequate evidentiary record to support a congressional determination that states are engaging in unconstitutional conduct so as to justify congressional regulation of the states. Some of that clarity on the evidentiary question disappeared in the Court's 2003 decision, Nevada v. Hibbs.Part I of this chapter surveys the background legal landscape facing those who wish to defend anticipated preclearance reenactment as an appropriate exercise of congressional power under the Fourteenth or Fifteenth Amendments. Part II then turns to application of the new federalism cases to the question of congressional power to reenact the preclearance provisions. The evidentiary requirement imposed in these new federalism cases creates significant hurdles for a court to uphold a reenacted section 5, even though, under the recent Hibbs case, the evidentiary burden on Congress will be slightly alleviated because a renewed section 5 would combat racial discrimination. In 1965 and even in 1982 Congress could point to significant acts of intentional racial discrimination by covered states to support preclearance provisions. Today, Congress would be hard-pressed to find widespread evidence of such discrimination. Some commentators have looked to Department of Justice preclearance statistics to find sufficient evidence of a potential for constitutional violations to support section 5 reenactment by Congress. A closer look at the DOJ preclearance statistics, however, offers little support for those who wish to build an evidentiary record to support reenactment of section 5. Other commentators have looked to private acts of discrimination as supporting congressional power to reenact preclearance provisions. The argument, though creative, probably cannot bear the weight that commentators have put on it. Part III concludes in a more speculative vein with a look at an alternative basis for congressional power to reenact preclearance: the Guarantee Clause. Article IV of the Constitution provides that the United States shall guarantee to each state a Republican form of government. It is an open question whether Congress could reenact the preclearance provisions under the Guarantee Clause and, more provocatively, by doing so insulate the provisions from challenge in the courts under the theory that Guarantee Clause cases raise non-justiciable political questions.

Scientific Ignorance and Reliable Patterns of Evidence in Toxic Tort Causation: Is There a Need for Liability Reform?

CARL F. CRANOR [*] DAVID A. EASTMOND [**] I INTRODUCTION The U.S. Supreme Court, urged on by legal scholars, affected industries, a number of lower court decisions, and some in the scientific community, has instituted substantial evidentiary reform of admissibility requirements for scientific evidence in the law. [1] Evidentiary reform, however, is beginning to pose problems of its own, [2] and a growing number of scholars are concerned about its impact on tort law. [3] Courts appear to be struggling to find the right guidance for admitting and excluding evidence. Indeed, it appears that there will be intra- and inter-circuit disagreements about general causation for the same substance.[4] Some courts appear to have overreacted to the Supreme Court's gatekeeping mandate and have rejected evidence that was derived by the methods and procedures of science as revealed by scientific practice and highly regarded scientific bodies. Such consequences are not surprising due to the subtle tensions between science and law. Given the tension, then, how should the science/law interaction be addressed in order to retain fidelity to the principal goals and strengths of both fields? The legal picture is further complicated by the realities of toxicology. In general, little is known about the universe of approximately 100,000 chemical substances or their derivatives registered for commerce (with 800 to 1000 new substances added to the list each year).[5] Surprisingly, for seventy-five percent of the 3000 top-volume chemicals in commerce, the most basic toxicity results cannot be found in the public record.[6] Yet these knowledge gaps will be slow to close because both animal and human studies are costly and take years to conduct, interpret, and understand. It takes even longer to develop a scientific consensus about any toxic properties. For a significant subset of these substances, including carcinogens, chronic toxicants, and some reproductive toxicants- those with long latency periods or associated with erratic exposure patterns- these problems are exacerbated.[7] Lack of scientific knowledge about substances poses two significant problems. First, the way in which some courts have implemented evidentiary reform has, in all likelihood, precluded some litigants with reliable, but not ideal, scientific evidence from a jury trial. These litigants were prevented from using whatever good evidence might have been available.[8] This problem may arise in part from the fact that human beings become by certain ideas; in their admissibility decisions, some courts appear to have been captured by ideas about scientific evidence that are more restrictive than those utilized in the scientific community. Daubert evidentiary reform only has a chance of succeeding in the torts context if courts adopt conceptions of scientific evidence actually utilized in the scientific community. Much of this article addresses this issue. Second, scientific ignorance about the universe of substances may be so great that current tort law rules of liability are inadequate to address properly the problems they pose. Current tort law liability rules, combined with evidentiary burdens and standards of proof, function well when both sides have plausible fact scenarios about the likelihood of what happened. When there is considerable ignorance on one side, however, as is the case in many toxic tort suits, the party with the burden of proof will lose. To address widespread ignorance about substances, courts may need to consider different legal doctrines. To protect the public better and ensure the possibility of justice between parties, courts may need to tailor new standards of liability, or shift burdens of proof once a plaintiff has presented a prima fade case to induce better testing and safety investigations by firms that create and use potentially toxic substances. In addressing the first problem, courts need to recognize that scientific ignorance and the slow accumulation of knowledge make proving causation difficult. …

Rule of reason versus mechanical tests in the adjudication of price predation

There is considerable controversy surrounding the legal standards used to detect and prosecute cases involving predatory pricing. This paper recommends the use of a two tiered standard in predatory pricing litigation. The first part of the test is designed to determine whether the market is structurally predisposed toward predation. The second part of the test examines the issue of predatory intent. Flexibility is built into these guidelines by giving the plaintiff an option in terms of the evidentiary burden it must carry. The administrative feasibility of this two tiered proposal is demonstrated in a case study analysis. The case analysis shows that the application of a mechanical price-cost predation rule would have incorrectly resulted in a guilty verdict.

Lay Expectations of the Civil Justice System

In this paper we present results from a study of small claims litigants' expectations about the civil justice system. Interviews with plaintiffs at the time they file their cases reveal that many people come to court with profound misunderstandings about the authority of civil courts as well as the procedural and evidentiary burdens that the civil justice system imposes. These findings, based on the empirical investigation of litigants' beliefs about and understandings of civil justice, complement experimental studies of procedural justice conducted over the past two decades. We find that litigants are at least as concerned with issues of process as they are with the substantive questions that make up their cases. Yet litigants' preconceptions of procedure are frequently at variance with what the law requires and what will happen in the legal process. Such differences suggest that litigants' expectations and understandings deserve attention in the study of their attitudes toward the legal process.

RESALE PRICE MAINTENANCE AND DISTRIBUTIONAL EFFICIENCY: SOME LESSONS FROM THE PAST

Resale price maintenance (RPM) has had a history similar to that of a religious war, with the legal status shifting as the various sects have had more or less influence over the courts and the political arenas. Both the RPM and anti‐RPM missionaries have overstated their cases.In theory, RPM can have both procompetitive and anticompetitive effects. Unfortunately, most of the dispute has been theoretical (theological); both sides have provided minimal empirical support for their theological conclusions. The empirical evidence, though sketchy, shows both procompetitive and anticompetitive instances of RPM. In particular, history warns that strongly organized interest groups tend to use the political process to enforce abuses of a distributional restraint that theoretically might otherwise have primarily procompetitive effects.The theoretical and empirical record does not support either per se legality or illegality for RPM in all instances. In some situations, such as for small firms in unconcentrated wholesale and retail markets and for new entrants, the probability of anticompetitive effects is negligible. In other situations, the evidentiary burden of demonstrating either the likelihood of anticompetitive effects, or of their absence, would be practically insurmountable in a litigation context. Rule‐of‐reason litigation, then, also seems to be an unwise policy choice.On balance, considering the economic, political, and legal constraints, we recommend continuing the current per se illegal standard, but with exceptions for clearly defined instances in which the probability of anticompetitive effects is minimal.

Legal Perspectives on Sex Equity in Faculty Employment

Faculty women have had limited success in winning redress for employment discrimination in hiring, salary, promotion, and tenure. Courts have shown little consistency but have in general been unwilling to interfere in academic decision making. The narrowing of time periods for liability, the redefining of evidentiary burdens, the tightening of rules for class certification, and the subjecting of statistical evidence to detailed scrutiny have slowed even further any progress towards equality of opportunity. The burdens in time and money faced by those seeking remedies make litigation accessible to only a few, leaving internal institutional reform as the only means of moving towards sex equity.

Changing legal standards for proof of causation in hazardous waste tort cases. Plaintiffs' problems and congressional responses.

Increasing public awareness and concern over the possible dangers of exposure to toxic chemicals and hazardous wastes has resulted in a variety of lawsuits brought by plaintiffs claiming injury resulting from chemical exposure. The legal system and its traditional approach to tort cases demands that a plaintiff demonstrate that a particular chemical substance was the "cause in fact" of his injury. However, a plaintiff's inability to present credible scientific evidence sufficient to pinpoint conclusively the specific cause of his injury or disease, particularly in cancer cases, leads to defeat in courts of law. This article discusses the existing barriers to plaintiffs' recovery in toxic tort cases and reviews congressional proposals designed to ease plaintiffs' evidentiary burden and increase their chances of prevailing.