Standards of proof and the limits of legal analysis

Abstract

Generally speaking, three burdens can be imposed upon a party at trial: the burden of pleading, the burden of producing evidence, and the burden of persuasion. Burdens of pleading specify the conditions under which factual/legal issues will be deemed to be included within a litigated case. They can be distributed any way the law maker prefers, although usually they are allocated to the party asking for a change in the status quo. There are exceptions to this general rule designed to respond to this or that policy concern, such as the requirement that criminal defendants plead specifically an alibi even though an 'alibi' is nothing but a general denial. Burdens of pleading are significant in that they create the scaffold of the trial; but they pose no interesting conceptual challenge, and thus they can be put aside