In loco parentis

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Ads by Google Ask a Lawyer Online Now A Lawyer Will Answer in Minutes! Questions Answered Every 9 Seconds. Law.JustAnswer.com [Latin, in the place of a parent.] The legal doctrine under which an individual assumes parental rights, duties, and obligations without going through the formalities of legal Adoption. In loco parentis is a legal doctrine describing a relationship similar to that of a parent to a child. It refers to an individual who assumes parental status and responsibilities for another individual, usually a young person, without formally adopting that person. For example, legal guardians are said to stand in loco parentis with respect to their wards, creating a relationship that has special implications for insurance and Workers' Compensation law. By far the most common usage of in loco parentis relates to teachers and students. For hundreds of years, the English common-law concept shaped the rights and responsibilities of public school teachers: until the late nineteenth century, their legal authority over students was as broad as that of parents. Changes in U.S. education, concurrent with a broader reading by courts of the rights of students, began bringing the concept into disrepute by the 1960s. Cultural changes, however, brought a resurgence of the doctrine in the twenty-first century. Taking root in colonial American schools, in loco parentis was an idea derived from English Common Law. The colonists borrowed it from the English ideal of schools having not only educational but also moral responsibility for students. The idea especially suited the puritanical values of the colonists, and after the American Revolution, it persisted in elementary and high schools, colleges, and universities. The judiciary respected it: like their English counterparts, U.S. courts in the nineteenth century were unwilling to interfere when students brought grievances, particularly in the area of rules, discipline, and expulsion. In 1866, for instance, one court stated, "A discretionary power has been given, … [and] we have no more authority to interfere than we have to control the domestic discipline of a father in his family" (People ex rel. Pratt v. Wheaton College, 40 Ill. 186). Well into the twentieth century, courts permitted broad authority to schools and showed hostility to the claims of student plaintiffs. In dismissing a claim by a restaurant owner against a college, the Kentucky Supreme Court found that a college's duties under in loco parentis gave it the power to forbid students to patronize the restaurant (Gott v. Berea College, 156 Ky. 376, 161 S.W. 204 [1913]). Two important shifts in society and law diminished the effect of the doctrine. One was the evolution of educational standards. Beginning in the late 1800s and advancing rapidly during the mid-1900s, the increasing secularization of schools brought an emphasis on practical education over moral instruction. At a slower rate, courts adapted to this change, according greater rights to students than were previously recognized. The first to benefit were students in higher education, through rulings such as the landmark Dixon v. Alabama State Board of Education, 294 F.2d 150 (5th Cir. 1961). In Dixon, the U.S. Court of Appeals for the Fifth Circuit extended due process rights to students at tax-supported colleges, ruling that the Constitution "requires notice and some opportunity for hearing" before students can be expelled for misconduct. After Dixon, courts largely turned to contract law for adjudicating disputes between students and their institutions. Other changes came as well. Partly in reaction to free speech movements, courts began to recognize that students at public Colleges and Universities, as well as public secondary schools, were entitled to full enjoyment of their First andFourth Amendment rights. For example, in ruling that high school students could not be expelled for wearing black armbands to protest the Vietnam War, the U.S. Supreme Court held, in 1969, that students do not "shed their constitutional rights … at the schoolhouse gate" (tinker v. des moines independent community school district, 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731). In 1975, the Court held in Goss v. Lopez, 419 U.S. 565, 95 S. Ct. 729, 42 L. Ed. 2d 725, that the suspension of high school students for alleged disruptive or disobedient conduct required some sort of notice of charges and a prior hearing. But the underlying premise of in loco parentis did not disappear completely from public schools. For example, in 1977, the Supreme Court held that the disciplinary paddling of public school students was not a Cruel and Unusual Punishment prohibited by the Eighth Amendment (Ingraham v. Wright, 430 U.S. 651, 97 S. Ct. 1401, 51 L. Ed. 2d 711), and that students who were disciplined in a school setting were not denied due process under the Fourteenth Amendment. Since then, several cases have challenged this ruling, and U.S. district courts have attempted to clarify the rights of students regarding Corporal Punishment (Hall v. Tawney, 621 F. 2d 607, 613 [4th Cir. 1980]; Garcia v. Miera, 817 F. 2d 650, 653 [10th Cir. 1987]; Neal ex real. Neal v. Fulton County Board of Education 229 F. 3d 1069 [11th Cir. 2000]). In the 1980s, new issues involving the in loco parentis doctrine arose at public schools, colleges, and universities. The Reagan administration's war on drugs led to the passage of the Drug-Free Schools and Campuses Act of 1989 (Pub.L. 101-226, December 12, 1989, 103 Stat. 1928). The act bans the unlawful use, possession, or distribution of drugs and alcohol by students and employees on school grounds and college campuses. As a result, most campuses began to enforce Zero Tolerance drug polices. In 1995, the Supreme Court ruled that high schools were permitted to conduct random drug testing of student athletes (Vernonia School District v. Acton, 515 U.S. 646, 115 S. Ct. 2386, 132 L. Ed. 2d 564). According to the Court, such testing does not violate the reasonable Search and Seizure clause of the Fourth Amendment because students in school are under state supervision, and as such, the state (and the school) is responsible for their well-being. The Court extended permissable drug testing to any student who wishes to participate in extracurricular activities in Board of Education, Pottawatomie County v. Earls, 536 U. S. 822, 122 S. Ct. 2559, 153 L. Ed. 2d 735 (2002). By the 1990s, and into the 2000s, the loco parentis doctrine seemed to be in full force as schools attempted to safeguard students. Many institutions enacted controversial rules governing dress codes and so-called hate speech, all in the name of protecting students. Violence on campuses, however, became a very real threat. In 1994, Congress enacted a federal policy toward weapons on school grounds when it passed the Gun-Free Schools Act of 1994 (Pub. L. 103-382, Title I, § 101, October 20, 1994, 198 Stat. 3907). According to the act, schools are required to expel students who are found in possession of a gun. After the 1999 Columbine, Colorado, shootings, reinforcement of this act escalated, and schools enforced zero tolerance policies toward the possession of any article that may pose a potential threat. As a result, students have been expelled from school for having such items as nail files, plastic knives, and model rockets. Although many students and parents filed lawsuits in protest, most cases were denied since, according to the courts, school authorities have the right to maintain school safety. Further readings Bickel, Robert D., and Peter F. Lake. 1999. The Rights and Responsibilities of Modern Universities: Who Assumes the Risk of College Life? Durham: Carolina Academic Press. "Corporal Punishment in Schools." 2003. Journal of Adolescent Health 32. Hirshberg, Philip M. 1994 "The College's Emerging Duty to Supervise Students: In Loco Parentis." Washington University Journal of Urban and Contemporary Law 46 (summer). Jackson, Brian. 1991. "The Lingering Legacy of In Loco Parentis: An Historical Survey and Proposal for Reform." Vanderbilt Law Review 44 (October). Lake, Peter F. 2001. "The Special Relationship(s): Between a College and a Student: Law and Policy Ramifications for the Post In Loco Parentis College." Idaho Law Review 37 (summer): 531–55. ——. 1999."The Rise of Duty and the Fall of In Loco Parentis and Other Protective Tort Doctrines in Higher Education Law." Missouri Law Review 64 (winter): 1–2. Walton, Spring, J. 1992."In Loco Parentis for the 1990s: New Liabilities." Ohio Northern University Law Review 19. Cross-references Children's Rights; Colleges and Universities; Guardian and Ward; Infants; Juvenile Law; Schools and School Districts. West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved. Ads by Google Brain Exercises Improve Memory and Attention with Brain Games by Scientists www.lumosity.com in loco parentis prep. (in loh-coh pah-rent-iss) Latin for "instead of a parent" or "in place of a parent," this phrase identifies a foster parent, a county custodial agency or a boarding school which is taking care of a minor, including protecting his/her rights. Thus, Boys' Town is legally in loco parentis to Johnny Boarder, aged 15, if and when he needs legal help. Copyright © 1981-2005 by Gerald N. Hill and Kathleen T. Hill. All Right reserved. Ads by Google High School Online Earn your Diploma, Finish High School Online. www.aiuhs.org IN LOCO PARENTIS. In the place of a parent; as, the master stands towards his apprentice in loco parentis. A Law Dictionary, Adapted to the Constitution and Laws of the United States. By John Bouvier. Published 1856. Ads by Google myreplyis.com ask... the world answers! www.myreplyis.com/ Want to thank TFD for its existence? Tell a friend about us, add a link to this page, add the site to iGoogle, or visit the webmaster's page for free fun content. Link to this page: Please bookmark with social media, your votes are noticed and appreciated: Ads by Google Dental Handpieces & Parts

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The Doctrine of Parens Patriae

The doctrine of parens patriae “is a concept of standing utilized to protect . . . quasi-sovereign interests, such as ‘health, comfort, and welfare’ of the people,” when such interests are threatened and state government intervention may be needed. Gibbs v. Titelman, 369 F. Supp. 38, 54 (E.D. Pa. 1973), rev’d on other grounds, 502 F.2d 1107 (3d Cir. 1974).The parens patriae doctrine differs from the in loco parentis doctrine, the later involving care that is “temporary in character and not to be likened to [the permanent situation of] adoption.” Griego v. Hogan, 377 P.2d 953, 955-56 (N.M. 1963). The in loco parentis doctrine can be applied to both governmental and non-governmental entities, and is implicated “when a person [or legal entity] undertakes the care and control of another [person of legal incapacity] in the absence of such supervision by the latter’s natural parents and in the absence of formal legal approval.” Id.
One of the more common situations where there may be threatened interests requiring state intervention involves the interests of minors and others of legal incapacity. Blackstone noted that under early English common law, the English sovereign was “'general guardian of all infants, lunatics, idiots.’” Fontain v. Ravenel, 58 U.S. 369 392-93 (1854) (Taney, J. concurring)(citing 3 W. Blackstone, Commentaries on the Laws of England 48 (1769)). English royalty originally enjoyed virtually unlimited power over the minors of their subjects. Over time, however, the Crown’s power became circumscribed by the rule of law, through the Magna Carta, the Writ of Habeas Corpus, and the continual evolution of the common law.
The United States Constitutional system of Ordered Liberty included additional safeguards. Article I, Section 9, guaranteed access to the Writ of Habeas Corpus. The Tenth Amendment created a vertical system of checks and balances, thereby distributing some powers to federal government, some to state government, and the remainder to the People. Parens patriae power of standing was reserved to the state governments, and could not properly be exercised by the federal government. See Fontain, 58 U.S. at 379, 384, 393; Mormon Church v. United States, 136 U.S. 1, 57-58 (1890)(parens patriae authority of Crown devolved upon the state legislatures); American Loan & Trust Co. v. Grand Rivers Co., 159 F. 775, 782 (W.D. Ky. 1908). The First, Third, Fourth, Fifth, Sixth, Seventh, Eighth, and Ninth Amendments afforded affirmative protections of individual liberty, which further constrained the practical reach of parens patriae.
State government exercises of parens patriae power are also subject to the United States Constitutional system of Ordered Liberty. See Meyer v. Nebraska, 262 U.S. 390, 290 (1923)("Determination by the Legislature of what constitutes proper exercise of police power is not final or conclusive but is subject to supervision by the courts."). Particularly after the enactment of the Thirteenth and Fourteenth Amendments, the Supreme Court applied due process principles and strict scrutiny analysis to limit state invocations of its parens patriae power. Liberty in “matters relating to marriage, procreation, . . . family relationships, and child rearing and education” are “’fundamental’” and “'implicit in the concept of ordered liberty’ as described in Palko v. Connecticut, 302 U.S. 319 (1937).” Paul v. Davis, 424 U.S. 693, 713 (1976). “In these areas . . . there are limits on the state’s power to substantively regulate conduct.” Id.
“[T]he admonition to function in a ‘parental’ relationship [of standing] is not an invitation to procedural arbitrariness.” Kent v. United States, 383 U.S. 541, 555 (1965). States may not exercise such power in a manner that has “all-encompassing scope and . . . sweeping potential for broad and unforeseeable application.” Wisconsin v. Yoder, 406 U.S. 205, 234 (1972). With respect to school teachers, they have only such portion of parental authority as a parent may choose to temporarily commit to the teacher's charge, in order to answer the purposes for which the parent has initiated the employment. Vernonia School District 47J v. Action, 515 U.S. 646, 654-55 (1995)(quoting 1 W. Blackstone, Commentaries on the Laws of England 441 (1769)).
State governments may not properly override parental decisions or terminate custody, unless 1) parents delegate their authority to the state voluntarily and knowingly, or 2) the state demonstrates through appropriate due process that there is clear and convincing evidence that the parents have triggered state parens patriae interests by placing their children in clear and present danger. C.f. Croft v. Westmoreland County Children & Youth Servs., 103 F.3d 1123 (3d. Cir. 1997).

Fundamental Right to Direct
the Upbringing of One's Child

The Right to Direct the Upbringing of One's Own Child, otherwise known as the Parental Liberty Doctrine, is a crucial civil liberty. It includes direction of a child's education, health care, lifestyle, regimen, religious observance, and discipline. The characterization of the liberty as "fundamental" under the substantive due process of the Fourteenth Amendment of the United States Constitution makes an enormous practical difference to home educators and court litigants."Fundamental" Liberties
In the parlance of United States constitutional jurisprudence, a "fundamental" right is a civil liberty of paramount importance. Whenever an individual can show that the government is interfering with an exercise of a "fundamental" civil liberty, the government has the burden to prove to a court that the government action can survive the "strict scrutiny" standard of court review.
The strict-scrutiny test upholds state intervention as proper only if (1) an authorizing state regulation exists that can be justified by a compelling state interest, (2) the means chosen are essential to furthering that interest, (3) there is a clear and present danger to the interest the state may lawfully protect, and (4) the tactic used is narrowly tailored and the least restrictive means of discharging the government's compelling interest.
"Non-Fundamental" Rights
In contrast to a "fundamental" liberty, other rights are entitled to very limited protection. Whenever an individual can show that the government is interfering with an exercise of a "non-fundamental" civil liberty, the individual has the burden to prove to a court that the government action fails the "rational basis" standard.
The rational-basis test stops state intervention as improper only if (1) the governmental action does not represent a reasonable means to a legitimate state interest, and (2) the relationship between the reasonable means and the legitimate state interest is not at least debatable. The test does not require the government to use the least intrusive or most creative regulatory scheme to achieve legitimate state ends.
Typically, the "rational-basis" test is used as a constitutional justification for the application of the "best interest of the child" statutory (or regulatory) test. The "best interest" test allows government agencies, and judges, to supplant parental decisions about child raising with their own subjective determinations about what is in a child's "best interest."
The "best interest" test is almost totally arbitrary, and in practice it allows virtually unlimited government interference with families. Additionally, governmental agencies often have structural conflicts-of-interest, often related to budgetary incentives, which cause them to systematically act contrary to a child's bona fide best interest. For these reasons, the "best interest" test is only appropriate in divorce cases, or in an adoption placement decision where the consent of a biological parent and any other blood relative are not feasibly available even after the performance of due diligence. "Best interest" is an inappropriate review in other situations where the biological parents are united in their opposition to the government's proposed disposition of a child.
Contrary to the common assumption, children in government care are not in a safe environment. Thousands of children every year are abused, murdered, or developmentally retarded while under government supervision. Often this suffering is because of systemic, multi-party incompetence, corruption, and neglect. In many cases, financial or political incentives built into state and federal law create conflicts-of-interest which compromise the objective judgment of intervening professionals and adjudicators. Often such incidents represent violations of constitutional protections. See Tumey v. Ohio, 273 U.S. 510 (1927); Ward v. Village of Monroeville, 409 U.S. 57 (1972); Gibson v. Berryhill, 411 U.S. 564 (1973); Connally v. Georgia, 429 U.S. 245 (1977); Young v. United States ex rel. Vuitton et Fils S. A., 481 U.S. 787 (1987).
Due to "shield laws," information about specific incidents of government child abuse are withheld from the public. Mistreated children who are removed often suffer far greater abuse while in government custody. This dynamic is true for government schools, government foster care, government mental health facilities, government prisons, and government child care.
Government officials and majoritarian populations simply do not have interests which are as closely aligned to a seized child as the interests of that child's parent (who is often a member of a demographic minority). Native Americans and Aborigines, as two examples, have suffered terribly as a result of the "best interest" standard, which was historically invoked to abduct, forcibly educate, and ethnically cleanse many thousands of their children.
The United States Congress realized that the "best interest" standard could be easily abused against large numbers of demographic-minority families, and enacted a higher statutory standard pioneered by Native American advocates to provide an extra layer of legal protection. Ironically, many Native American families on Reservations now enjoy a higher level of practical protection for parental liberty than many white American state residents. See Indian Child Welfare Act Subchapter I, 25 U.S.C. 1912.
Attendant Evidentiary Protections
For temporary or preliminary court orders, such as home searches or child seizures, except for termination of parental custody or visitation, the Fourth Amendment of the Constitution of the United States requires probable cause.
For final court orders, or for permanent termination of parental custody or visitation, clear and convincing evidence is typically required under United States law. Procedural due process is also required for the parents and child. At minimum, the government must make an initial showing, by clear and convincing evidence, that a parent has inflicted harm by placing the child in clear, present, and grave danger.
The fundamental right to physical liberty is implicated with any restraint of a child's physical body or sensory faculties in a captive informational environment which occurs without consent of the minor's parents, regardless of whether the government restraint is achieved through compulsory school attendance, government assumption of child custody, involuntary hospital admission, containment in a mental health facility, confinement in a concentration camp, forced national "service" to the community, or incarceration in a criminal correction facility.
Irreparable harm is caused even by temporary derogations of First Amendment familial association, or of other fundamental rights such as Fourteenth Amendment family liberty. Such violations may be stopped by injunction or stay. Elrod v. Burns, 427 U.S. 347 (1976).
Proponents of the "best interest" standard often attempt to trump or entirely sidestep these evidentiary and procedural protections.
Convergence of Parent's Rights and Interests with the Child's Rights and Interests
State interference with the parent-child bond is often framed as a "parental rights" issue. However, the same issue could also be framed as one of state interference with the right of a child. Courts have noted that children have a concomitant fundamental right to the state of well-being which derives from "'the continuity of affectionate care from those to whom [they are] attached through bonds of love."' Roe v. Conn, 417 F. Supp. 769, 776 (M.D. Ala. 1976)(cite omitted); see also In re J.P., 648 P.2d 1364, 1369, 1377 n.13 (Utah 1982)(citation omitted)(“‘prior and fundamental right of a parent to rear his child; and concomitantly, of the right of the child to be reared by his natural parent’”); In re Perales, 369 N.E.2d 1047, 1051 (Ohio 1977). The right described in Roe is sometimes called the Child Liberty Doctrine, for it is a right describing a child's right to be free from harmful and arbitrary state confinement.
A child cannot represent him or herself, and thus has a right to be represented by those who have the most similar alignment of familial, biological, property, and economic interests. When the state interferes with the parent-child bond, it imposes a disinterested caretaker upon the child. Over a long period of time, the service rendered by a caretaker who is motivated by the bonds of affection and/or a close alignment of interests with the child is likely to be quite different than the service rendered over the long term by a disinterested party. Caretakers with professional expertise in some specialty may have a more refined clinical approach to some facet of a child's development, but professionals have no special systemic motivation to apply their services to obtain the maximum benefit for a particular child when assistance requires a significant personal, emotional, or financial investment or risk.
The same concept applies to other concerns that are de facto concerns when parental rights are litigated. For example, parents who are forced to defend against improper state interference often must expend tremendous quantities of time, money, and emotional energy in the effort. Yet if parents' financial resources are depleted defending against state interference, the children of those traumatized parents are also likely to have a lower standard of living and a depleted inheritance.
Consequently, "while there is still reason to believe that positive, nurturing parent-child relationships exist, the parens patriae interest favors preservation, not severance, of natural familial bonds." In re J.P., 648 P.2d at 1377 n.13 (quoting Santosky v. Kramer, 455 U.S. 745, 766 (1982)); see also Parham v. J.R., 442 U.S. 584, 600-03, 610-11 (1979); Dickson v. Lascaris, 423 N.E.2d 361, 363 (N.Y. 1981) ("rule fosters both [parents' and child's] interests by recognizing that they ordinarily converge").
The Parental Liberty Doctrine is really a component of the much broader Family Liberty Doctrine (which overlaps with the Right to Family Autonomy, a facet of liberty oriented towards familial privacy and association). Jurists, journalists, and politicians have tended to focus on "parental rights" or "parental liberty," because parents are often in a better position to assert family prerogatives in protection of the children. Often the public does not understand any term other than the widely-used colloquial expression parental rights. But to be technically precise, the Child Liberty Doctrine protecting the interests of children, as well as the state's interests in general health and safety, are similarly intertwined with and served by the Family Liberty Doctrine. Children and society are better off when children are not treated as creatures or property of the state.





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V. Allocation of the Burden of Proof

Not only judicial tests and the essence/application dichotomy but also the allocation of the burden of proof affect the strictness of AB&P's review vis-à-vis ETMs. In the following, we analyze whether the AB&P's findings regarding the allocation of the burden of proof are appropriate from an economic viewpoint, i.e. the minimization of the costs involved in the WTO adjudication.

A. Burden of Proof

According to Hay, there are two kinds of costs involved in the allocation of the burden of proof: "process costs" and "error costs".²¹⁵ Process costs are those which are spent by each party in order to obtain favorable results for themselves in the case. If the case is resolved through litigation, the costs for presenting evidence are regarded as process costs. If the case is settled through negotiation, the costs for bargaining constitute process costs. "Error costs" are those which are derived from erroneous results by courts, for example, underdeterrence of harmful behavior for the society.
If we assume that parties have perfect information about whether the plaintiff's claim is meritorious and there is no possibility of settlement, the burden of proof should be assigned to the defendant since the plaintiff has no incentives to bring a meritless claim and, if the plaintiff bears the burden of proof, he has to suffer the costs for presenting evidence.²¹⁶ However, since parties are not always sure about the results of the cases and there are possibilities of out-of-court settlement, we have to reconsider which party should bear the burden of proof from the viewpoint of the minimizing the total of process and error costs.²¹⁷According to Hay, the following five factors affecting a defendant and a plaintiff should be compared in order to optimally allocate the burden of proof: 1) the party's costs of presenting evidence to support its position, 2) the probability that the party's position is correct, 3) the party's estimate of its chance of success, 4) the amount at stake for the party, and 5) the social costs of an erroneous decision against the party.²¹⁸ As a general proposition, the initial burden of proof should be allocated to plaintiffs because, in normal cases, the probability that plaintiffs make meritorious claims is relatively minor (assuming that the threat of liability normally induces defendants to comply with laws), while both plaintiffs and defendants are usually in a similar position with respect to the four other factors (for example, the amounts at stake for defendants and plaintiffs are usually the same).²¹⁹ If we allocate the burden of proof to defendants in the cases where the probability that plaintiffs' claims are meritorious is low, two things would happen: the plaintiffs would tend to sue even if the legal grounds of their claims are so weak that their chances of success would be very small; the plaintiffs would tend to sue even if they know that their claims are meritless, hoping that they could extract compensation from the defendants in their out-of-court settlements. (If the amount of compensation is less than the defendants' costs for presenting the evidence which shows that the claims are meritless, the defendants have incentives to agree with an out-of-court settlement.) As a result, the total of process and error costs is likely to be greater when the defendants bear the burden of proof than when the plaintiffs bear it.²²⁰
Hay maintains that it might be optimal to allocate the initial burden of proof to defendants in the following four cases: 1) when, based on the information available to the court, it is likely that plaintiffs have meritorious claims, 2) when the plaintiffs' costs of presenting evidence are higher, 3) when the plaintiffs have more at stake, and 4) when errors in the defendants' favor are more socially costly than errors in the plaintiff's favor because such errors dilute the deterrence of harmful behaviors by the defendants.²²¹
From this perspective, it would make sense to allocate the initial burden for establishing a prima facie case to a defending party in the context of GATT Article XX for two reasons: 1) the probability that the defending party has a meritorious claim is relatively low, 2) the defending party's costs of presenting evidence to support its position is normally lower than those of the plaintiffs. The defending parties have motivations to invoke Article XX even if the chance that they can prevail is low because the invocation of Article XX is almost their only way to avoid losing the case under the situation where the complaining parties successfully prove the GATT violations by the defending parties, assuming that additional costs for presenting arguments regarding GATT Article XX justification are low. Therefore, based on the information the AB&P normally have, the probability that defending parties have meritorious cases would be low. Furthermore, in the process of an Article XX analysis, the parties have to adduce evidence regarding the details of the measures in dispute including the information about how the measures have been enforced by the authorities of the defending parties. It would be difficult for complaining parties to present evidence regarding the details of the measures contested.²²² As a result, it would be better to allocate the initial burden of establishing a prima facie case to defending parties in the context of Article XX of the GATT.
It is sometimes pointed out that allocating the initial burden of Art. XX justification to ETM-invoking countries means that the WTO puts higher value on free trade than on environmental protection. However, as explained above, the low likelihood of meritorious Article XX claims and the informational asymmetry between complaining and defending parties, not the preference for trade values, may be the reasons why the defending parties should bear the initial burden.
With regard to Article 5 of the SPS Agreement, the initial burden of establishing a prima facie case of the violation of the SPS Agreement is imposed on the complaining country. At first glance, allocating the burden of proof to complaining parties looks odd because both the SPS Agreement and Article XX of the GATT deal with the same kind of ETMs (at the very least, a measure which falls under the scope of GATT might be also subject to the SPS Agreement). However, if we take into account the economic considerations discussed above, it makes sense that a complainant should bear the initial burden, in the context of Article 5 of the SPS Agreement. In this context, the probability that a complaining party makes a meritorious claim is not high because to some extent there exists uncertainty regarding the result of the case. Imposing the initial burden of establishing a prima facie case of consistency with the SPS Agreement to a defending party would provoke an increase in meritless complaints of violations of the SPS Agreement since, if a defending party bears the initial burden and fails to prove the compatibility of its ETM with the SPS Agreement, the AB&P decide in favor of the complaining party. That is, exporting countries would be tempted to bring complaints to the DSB, hoping that the defending countries fail to satisfy the threshold for establishing the prima facie case of non-violation or that the defending countries agree on a settlement prior to the establishment of the Panel in order to avoid losing in the DSB, even if the grounds of the complaining parties' argument are not strong.²²³ Therefore, it makes sense that, in Hormones, the AB found that a complaining party bears the initial burden of establishing a prima facie case of inconsistency with the SPS Agreement.
However, it should be noted that a defending party has better access to evidence on the details of the SPS measures in dispute. It would be difficult for a complaining party to adduce sufficient evidence to support their argument if the threshold for shifting the burden of proof is too high. Because of this asymmetrical access to the information regarding the SPS measure concerned, the threshold for establishing a prima facie case of inconsistency with the SPS Agreement should be relatively low. In this regard, it makes sense that, in Apple, the AB found that the initial burden of a complaining party can be satisfied merely by showing the non-existence of relevant studies or researches in the contexts of Article 2.2 and Article 5.1 of the SPS Agreement. Article 5.8 obliges SPS-imposing countries to offer information regarding the scientific justification of their SPS measures when exporting countries request it to do so. The AB attempted to lower the level of the threshold for Article 2.2 to the level which can be accomplished by the evidence obtained through an Article 5.8 request. It could be said that the likelihood that a contested measure is based on sufficient scientific evidence is low, provided that the measure-imposing country fails to offer information about the scientific justification of the measure. Therefore, the burden of proof should shift to the measure-imposing country.
Furthermore, this low threshold could be applied for Article 5.6, the LTRA standard. If we assign complaining parties the initial burden of establishing a prima facie case of defending parties' failure to satisfy the LTRA test, the burden would be very difficult to be satisfied since the complaining parties have to show all of the following three things: 1) there is at least one alternative which is reasonably available, taking into account technical and economic feasibility; 2) the alternatives can achieve the Member's appropriate level of protection; and 3) the alternatives are significantly less restrictive to trade than the SPS measure in dispute.²²⁴ As a matter of fact, there have been no cases where the complaining parties were able to show all of these factors. It could be said that this very high threshold for showing the violation of Article 5.6 almost emasculates the LTRA requirement under the SPS Agreement. Therefore, the burden of showing consistency with the SPS Agreement should shift to defending parities if complaining parties are able to show the non-existence of relevant studies or researches. By so doing, the AB&P can reduce error costs. That is, it is unlikely that the defending parties have deliberated on whether the measures concerned are the least trade restrictive among available ones in the situation where the measure-imposing countries fail to show relevant studies and researches to countries which make Article 5.8 requests. The defending parties should bear the burden of proof because they have better access to relevant information, and because the possibility that their measures are the least trade restrictive among reasonably available ones is low.
In conclusion, in the contexts of GATT Article XX and the SPS Agreement, the allocation of the burden of proof by the AB&P has been generally appropriate. However, the threshold for shifting the burden of proof to defending countries in the context of Article 5.6 of the SPS Agreement is too high. The threshold should be lowered by shifting the burden of proof to defendants when complaining parties are able to show that there are no relevant studies or researches.

B. Burden of Pleading

The burden-of-pleading rule defines "the set of issues that each party must assert in order to put those issues into play."²²⁵ That is, unless the party who bears the burden of pleading for an issue asserts the availability of the issue in the case, the court does not have to examine the issue. In most cases, the party who bears the burden of proof about an issue has to bear the burden of pleading about the issue.²²⁶ However, that is not always the case. For example, under U.S. tort law, although defendants must plead contributory negligence, some states impose the burden of proof on plaintiffs.²²⁷ According to Lee, the "divergence" of allocation between the pleading of proof and the burden of proof can be economically justified. Lee maintains that the burden-of-pleading rule functions as a device for reducing process costs in two ways. First, process costs could be saved by placing the burden of pleading to defendants about those issues which are unlikely to arise. Otherwise, process costs increase since plaintiffs have to raise every possible issue including the ones which arise infrequently. Second, through imposing the burden of pleading on the party to whose "version of the issue in question is more discrete", the process costs could be saved.²²⁸ By so doing, the other party does not have to anticipate and produce evidence contravening the indefinite number of possible claims and arguments.²²⁹ For example, in the context of contributory negligence in the U.S. tort law, the allegations of defendants would be more "focused" on certain elements of the case than the allegations of plaintiffs. In other words, if plaintiffs have to bear the burden of pleading, they have to assert that they were not negligent in all the aspects of their behavior in the case. Therefore, the burden of pleading is imposed on defendants in the context of the U.S. tort law. However, because plaintiffs have better access to the information with regard to the level of care of themselves at the time that the case (for example, a traffic accident) occurred, some courts impose the burden of proof on plaintiffs.²³⁰ In sum, since the burden-of-proof and burden-of-pleading rules reduce process and error costs in different ways, allocating burdens to different parties under burden-of-proof and burden-of-pleading rules could be justified.
In the context of the WTO, the AB&P have seemed to be aware of the issue of the divergence between burden-of-proof and burden-of-pleading rules. For example, in Asbestos, in applying the LTRA test and the chapeau test, the Panel seemed to allocate the burden of pleading to Canada, the complaining country, even though the Panel clearly pronounced that the EC, the respondent, bore the burden of proof. That is, in applying the LTRA test in its GATT Article XX (b) analysis, the Panel only examined the alternative courses of action which were asserted by Canada in spite of the possible availability of other alternatives. ²³¹ Furthermore, in its chapeau analysis, the Panel found that the application of the French measure did not result in "unjustifiable discrimination", "arbitrary discrimination", or "disguised restrictions on trade" since Canada did not argue that the application of the French measure amounted to according less favorable treatment to foreign products.²³² These allocations of the burden of pleading under the LTRA test and the chapeau test make sense economically. In applying these tests, it is the complaining countries that can "narrow" the scope of their claims. If the AB&P impose on defending countries the burden of pleading, the defending countries would have to anticipate all possible claims and produce evidence refuting all of them. The AB&P would also have to examine all the points. On the other hand, if the burden of pleading is imposed on the complaining countries, the defending countries merely have to refute the arguments made by the complainants; in addition, the issues which the AB&P have to examine are also limited to these points. In sum, process costs can be saved by imposing the burden of pleading onto the plaintiffs. On the other hand, as we discussed above, the burden of proof should be assigned to defending countries in the context of GATT Article XX analysis since it is unlikely that the arguments of the defending countries are meritorious and the costs of obtaining evidence regarding the issue involving GATT Article XX by defending countries would be less than those of the complaining countries. In this way, allocating the burden-of-proof and the burden-of-pleading on different parties could be justified in the context of GATT Article XX analysis.

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215 See Bruce L. Hay, Allocating the Burden of Proof, 72 Ind. L. J. 651, 654 (1997). See also Lee, supra note 91,at 4-5 (1997).
216 See Hay, supra note 215, at 657-8.
217 See id. at 659-60.
218 See id. at 660-73
219 See id. at 676-7. See also Bruce L. Hay & Kathryn E. Spier, Burdens of Proof in Civil Litigation: An Economic Perspective, 26 J. Legal Stud. 413, 425 (1997).
220 See Hay, supra note 215, at 677-8. Lee points out another possible reason why the default rule is to impose the burden of proof on a plaintiff. He points out that a judgment for the plaintiff provokes the increase in process costs which does not occur when the judgment is for the defendant; the court has to calculate the amount of damages and enforce the judgment. Therefore, he argues that the defendant should bear the burden of proof only when the decrease in error costs outweighs the increase in process costs when courts impose the burden on the plaintiff. See Lee, supra note 91, at 12-14. See also William Chris. Sanchirico, The Burden of Proof in Civil Litigation: A Simple Model of Mechanism Design, 17 Int'l Rev. L. & Econ. 431 (1997) (arguing that the burden-of-proof rule functions as a single by which all potential plaintiffs, who have superior information regarding their cases, self-select to bring the only cases worth hearing for the society).
221 See Hay supra note 215, at 677. See also Lee, supra note 91, at 15-27.
222 Lee notes that `there are at least two categories of issues where defendant's access to proof is likely to be superior. First are issues involving conduct of the defendant where the plaintiff may not have been involved. ... The second category of issues for which defendant has greater access to proof involves interactions between the two parties for which the defendant has superior incentives to keep records of the transaction." ETMs normally fall into the first category. See Lee, supra note 91, at 16-17.
223 For example, imagine a case where Country A estimates that it can increase the amount of its exportation to Country B by $10 million if Country A successfully strikes down one of Country B's SPS measures. The probability that Country A prevails before the AB&P is 10 percent and that the amount at stake is $10 million. Country A is willing to complain about Country B's SPS measure to the DSB if the cost for the "litigation" is less than $1 million ($10 million x 10%). Furthermore, if Country B also estimates that the probability that they lose is 10 percent and the costs of Country B for presenting evidence which shows the consistency of its measure with the SPS Agreement is more than $1 million, Country B has an incentive to settle the case prior to the establishment of the Panel. This shows that a Member might have motivation to bring a complaint to the WTO even if its claim is not so meritorious.
224 See Salmon AB Report, supra note 107, at para. 192.
225 See Lee, supra note 91, at 6.
226 See id. at 28.
227 See id. at 28-29. See also Hay and Spier supra note 219, at 428
228 See Lee, supra note 91, at 7.
229 See id. at 7.
230 According to Hay and Spier, the reason why courts are divided on the issue of who should bear the burden of proof in the context of contributory negligence would be the "timing" of scrutinizing plaintiffs' level of care. If the courts examine both the plaintiffs' and defendants' levels of care simultaneously, there is no reason to assume that the plaintiff took due care. However, if the courts should examine the parties' levels of care sequentially (first, the defendants' levels, then the plaintiffs' levels), it could be assumed that the plaintiffs took due care when the incidents happened. For it is unlikely that the plaintiff was not careful, given that the courts find that the defendants were negligent. See Hay and Spier, supra note 219, at 428-9.
231 See Asbestos Panel Report, supra note 28, at para.8.204-8.222.
232 Id. at para.8.228.

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