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The Juridical Management of Factual Uncertainty

31 Pages Posted: 26 Aug 2003  

Ronald J. Allen

Northwestern University Law School

Craig R. Callen

Michigan State University-DCL College of Law (Deceased)

Abstract

Civil presumption doctrine in the United States is unnecessarily complex and essentially unnecessary. Evidence law affords a number of evidentiary devices for managing uncertainty, which civil presumptions, at best, merely replicate, but in a different vocabulary with the attendant unnecessary complexity. We survey the critical similarities of evidentiary devices, which can save time and expense, but seldom affect the final outcome of litigation, and demonstrate the manner in which civil presumptions are mere substitutes for other well known evidentiary devices. We further show the unnecessary complexity introduced by instructions on presumptions. The potential that presumption instructions have for harmful effects on jurors, and the effort required to master the intricate formalities of presumptions, suggest that the main reason for their continued existence is distrust of jurors, and perhaps appellate court distrust of trial courts, and that an appreciation of the extent to which presumptions duplicate other evidentiary devices can be the key to sorely needed reform.

Suggested Citation

Allen, Ronald J. and Callen, Craig R., The Juridical Management of Factual Uncertainty. International Journal of Evidence & Proof, Vol. 7, p. 1, 2003. Available at SSRN: https://ssrn.com/abstract=436701 or http://dx.doi.org/10.2139/ssrn.436701

Ronald Jay Allen

Northwestern University Law School ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States
312-503-8372 (Phone)
312-503-2035 (Fax)

Craig R. Callen (Contact Author)

Michigan State University-DCL College of Law (Deceased) ( email )

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