Problems with Presumptions: A Case Study of the “Structural Presumption” of Anticompetitiveness

• DOI: 10.1177/0003603X0204700401
• Published date: 01 December 2002
• Date: 01 December 2002
• Subject Matter: Domestic Antitrust

The Antitrust BulletinlWinter 2002 557

Problems with presumptions: acase

study

of

the "structural presumption"

of

anticompetitiveness

BY PAUL R. RICE* and SLADE S. CUTTER**

Presumptions are among the most commonly misunderstood and

misapplied concepts in the field

of

evidence. While the term "pre-

sumption" is a technical rule of evidence with specific conditions

and

consequences,

it

is often used as a synonym for the logical

inference

upon

which

the

presumption

is premised.

Without

a

complete understanding

of

the parameters

of

the evidentiary con-

cept, the term has been used too freely by too many courts, inject-

ing an unacceptable level

of

uncertainty into the law.'

*

Professor

of

Law, American University Washington College

of

Law, Washington, DC.

** Judicial clerk to Judge H. Dale Cook in the U.S. District Court for

the Northern District

of

Oklahoma.

AUTHORS' NOTE: We would like to thank Professor Jon Baker, American

University Washington College

of

Law,

for

his guidance.

Unfortunately, this imprecise use of evidentiary terminology is not

unique to presumptions. Courts frequently use the term "burden of

proof'

to refer to both the burden of production (the burden of going forward

with evidence) and the burden of persuasion (the ultimate burden

of

con-

vincing the finder of facts that a particular contention is true), Since these

burdens are not necessarily assigned to the same party, precisely what a

court refers to when it uses the phrase "burden of

proof'

remains unclear,

© 2003 by Federal Legal Publications, Inc.