[MUSIC] When learning the rules that govern a particular cause of action, it's important to learn not only the individual legal elements upon which liability is contingent. But also to pay attention to which litigant has the burden to establish the existence or nonexistence of each element. As a general matter, the moving party, the plaintiff or prosecutor will have the burden of establishing each of the elements. But often the defendant will have the burden with regard to affirmative defenses. And as we will see, the type of burden can vary in important ways for elements at different times of trial. To begin, it's helpful to keep in mind the difference between the burden of production and the burden of persuasion. A burden of production is the burden to come forward with some kind of evidence. A party fails to satisfy this burden if he or she fails to introduce any relevant evidence on the subject. In contrast there are traditionally three different burdens of persuasion. The most difficult burden to satisfy is proof beyond reasonable doubt. This of course is the standard in criminal cases. We place this heavy standard on prosecutors because our society would, to paraphrase William Blackstone, rather have 20 guilty people go free than have one innocent be convicted. Blackstone, BT dubs, was the first great legal treatise writer. An economist might similarly say, because the harms of false positives are far greater than the harms of false negatives, we make it harder to convict. Courts annoyingly have resolutely refused to express proof beyond reasonable doubt as a particular probability. But if you had to, you might think of this as requiring prosecutors to prove guilt by more than a 99 or 95% likelihood. The most lenient burden of persuasion is the preponderance of the evidence standard. Here the requisite element must be proven to be more probable than not. This can be quantified as a requirement of something more than 50% likelihood. In between the preponderance and reasonable doubt standard is the third and final burden of proof, the clear and convincing evidence standard. In many ways, we don't know much more than that this standard requires more than a preponderance and less than proof beyond reasonable doubt. It has been used in a handful of circumstances where the defendant might bear a stigma from being found civilly liable, or where there are irreversible consequences of a court action. For example, courts have sometimes required clear and convincing evidence from a plaintiff before finding the defendant civilly liable for fraud, or in paternity cases, and courts require clear and convincing evidence of intent before removing hospital life support. However, recently the Department of Education has required universities, in non-criminal disciplinary actions regarding allegations of sexual assault by students, to cease using a clear and convincing evidence standard and only require complainants to establish sexual assault by a preponderance of the evidence. Indeed this figure is taken from the University of Pennsylvania's Office of Student Conduct and says that clear and convincing evidence, quote, is when it is highly probable, substantially more likely than not, reasonably certain that the alleged incident occurred. It does not mean that there is not some other possible explanation. It means that the explanation put forth by the University is convincing, unquote. Let's now use stylized civil suit to think about how these burdens of production and persuasion play out. Even before discovery or introduction of evidence, the moving party usually has what might be called the burden of allegation. For example, if a civil cause of action has four elements, and the plaintiff's complaint fails to make an allegation that the fourth element is present, the defendant can demure, or in modern parlance, move to have the case dismissed for failure to state a claim. By the way be sure to pronounce demure with two syllables and without palatalizing the u. The legal term, demure, can be used as either a noun or verb. She filed a demure or he demurred. The non-legal word, demure, is an adjective which means modest or shy. Now, imagine that a civil plaintiff is satisfied what I think of as her burden of allegation. By satisfactorily making allegations with regard to the requisite elements in her complaint. Then at the close of discovery, but still before trial, the defendant can move for some re-judgement. If the defendant can show that the plaintiff has failed through discovery to produce sufficient evidence to show that a genuine issue of material fact exists with regard to one of the elements that the plaintiff has the burden of establishing at trail. It's important to remember that some re-judgement can also be brought by the plaintiffs, with regards to issues that it bears the burden of establishing at trial, and with regard to affirmative defenses that the defendant has the burden of persuasion of establishing at trial. These motions for summary judgment will analogously be granted if the plaintiff can show there exists no genuine issue of material fact with regard to the issue that the plaintiff is moving on. So then, during the civil trial, if the plaintiff, during it's case in chief, fails to introduce sufficient evidence so that a rational juror could conclude that the plaintiff had met it's burden of persuasion. Usually preponderance of the evidence. With regard to a particular element, then a court may direct a verdict for the defendant for such failure. Introducing sufficient evidence to preclude a directed verdict on each of the required elements is sometimes described as establishing a prima facie case. Sometimes this shifts the burden to the defendant to establish some affirmative defense. At other times, the burden of persuasion remains with the plaintiff, but the defendant is allowed by introducing its own evidence, to rebut or negative the persuasive power of the plaintiff's evidence. To give a more detailed example of how shifting burdens can play out, consider the McDonnell Douglas standard for establishing disparate treatment discrimination. The framework as currently applied by courts is as follows. In the first stage, the plaintiff must first establish a prima facie case by a preponderance of the evidence that the defendant discriminated against the plaintiff in some adverse employment decision, because of the defendant's race. Then in the second stage, the burden of production shifts to the employer to rebut this prima facie case by quote, articulating some legitimate nondiscriminatory reason, unquote, for the defendant's decision. This is not a burden of persuasion, but merely a burden to articulate and produce some evidence of non-discriminatory reason or reasons for the decision. At that point the plaintiff, and this is now stage three. The plaintiff employee may prevail only if he or she can show that the employer's non-discriminatory reason is merely a pretext for the behavior and that the behavior was actually motivated by race discrimination. Even though the employer bears a burden of production in the second step, courts say that the plaintiff bears burden of persuasion at all times. And now for discussion. In a university disciplinary setting for sexual assault, what are the relative harms to the complainant and accused of type one false positives and type two false negative adjudication errors? And do these justify a preponderance of the evidence standard? [MUSIC]
