The Constitutional Accuracy of Legal Presumptions
48 Pages Posted: 20 Feb 2016
Date Written: February 18, 2016
This paper identifies the general analytic structure of the US constitutional doctrine that demands, for any legal presumption, at least “some rational connection between the fact proved and the ultimate fact presumed.” Although presumptions pervade every legal domain, and despite over a century’s worth of case law, this doctrine’s rationale and structure remain obscure. The paper shows how the doctrine might be justified as requiring likely-accurate presumptions, as well as how lawyers and judges applying this doctrine face distinctive selection bias and reference class problems. The paper illustrates these issues with four examples: the McDonnell-Douglas presumption in employment discrimination law; the Bail Reform Act’s presumption about a bail applicant’s level of danger to others based on being charged with certain drug-sale crimes; res ipsa loquitor; and a presumed damages amount for emotional distress. In so doing, this paper contributes to the legal and philosophical literatures on presumptions in legal argumentation.
Keywords: presumption, due process, constitution, discrimination, bail
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