burden

A burden is a generic term referring to a restriction on a use or activity. Often, the term arises in property law. For instance, real property may carry an intangible burden in the form of covenants or easements. These burdens generally prohibit certain activities, impose building restrictions, and obligate owners to perform certain duties like ensuring certain areas are exposed to sunlight or keeping a road in usable condition. 

In the realm of constitutional law, governments are not allowed to unduly burden the rights of the populace. Whether a law unduly burdens a right or not is generally determined by a categorical scrutiny test. 

Furthermore, the doctrine of preclusion prevents state governments from burdening federal policy on certain issues. For example, the Dormant Commerce Clause precludes states from burdening interstate commerce. In this context, a burden is generally a state law that unduly restricts the free flow of goods and services between states.

In the field of civil procedure, a burden refers not to a restriction but to a procedural requirement a party must meet. For example, a plaintiff hoping to recover in a tort action must meet their burden of proof by establishing by a preponderance of the evidence that the defendant 1. Caused harm to the plaintiff, 2. Owned the plaintiff a duty, and 3. Breached that duty. 

[Last updated in June of 2022 by the Wex Definitions Team]