Francesco Parisi (Professor of Law at the University of Minnesota, Law School and a Professor of Economics at the University of Bologna), Daniel Pi (Assistant Professor at University of Maine School of Law) and Alice Guerra (Assistant Professor at the University of Bologna) wrote an interesting article using a law and economics approach to compare access to evidence in the US and EU. The article, entitled Access to Evidence in Private International Law, is forthcoming in 2022 in volume 23 of Theoretical Inquiries in Law.
The authors focus their analysis on how a misalignment of the burden of proof and evidentiary rules can frustrate the production of evidence and undermine care incentives when these are applied cross-border tort cases.
The abstract reads as follows:
This Article analyzes the interaction between the burden of proof and evidentiary discovery rules. Both sets of rules can affect incentives for prospective injurers to invest in evidence technology (i.e., ex ante investments that increase the quantity and quality of evidence in case an accident occurs). This interaction becomes acutely important in the private international law setting, where jurisdictions are split on the question whether the burden of proof should be treated as a substantive or procedural matter. When a tort occurs in Europe, but the case is litigated in American courts, treating the burden of proof as a procedural matter preserves the complementarity of incentives created by the burden of proof and evidentiary rules. Conversely, treating the burden of proof as a substantive matter creates a mismatch in incentives created by the burden of proof and evidentiary rules.
The article is structured in three parts. The first part of the article provides a theoretical insight into the interaction of presumptions and discovery rules using an economic approach. The second part offers a short overview of the way American and European law deal with the burden of proof and evidentiary discovery. In the third part the authors discuss how dissonant incentives can arise when tort cases are adjudicated in American courts using European legal rules. The various case law of American jurisdictions are split on the question whether the burden of proof should be regarded as substantive or procedural. The authors ultimately suggest that the US should treat presumption of negligence as a procedural rule to promote efficient incentives. They conclude that such a rule counterintuitively results in better outcomes in cases of private international law tort cases where, with a proper alignment of presumptions and discoverability rules, defendants would face incentives to invest in evidence technology even when knowing that the evidence could be used against them.