Presumptions: 350 years of confusion and it has come to this

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Authors
Fenner, G. Michael
Issue Date
1992
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Journal Article
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Abstract
The title of this article — Presumptions: 350 Years of Confusion and It Has come to This — is pretty much self-explanatory. The article begins with “the bottom line on presumptions. They are inextricably confused devices used to move burdens from one party to another and to allow judges to comment on the value of evidence.” Seventy years ago Judge Learned Hand said this about the law of presumptions: “Judges have mixed it up until nobody can tell what on earth it means and the important thing is to get something which is workable and which can be understood and I don’t much care what it is.” Scholars, judges, and legislatures “have written much and clarified little. Part of the confusion stems from the fact that lawyers and judges toss the word around carelessly to apply to many different things unrelated to true presumptions. There are presumptions in the Black’s Law Dictionary sense and presumptions in the Merriam-Webster Unabridged Dictionary sense. There are simple legally-permissible inferences, often incorrectly labeled presumptions, and rules of law, often incorrectly labeled “irrebuttable presumptions.” And there is the sense, pointed out by Professor Ron Allen, in which there really “is no such thing as a presumption.” This article is about the confusion and it attempts to bring clarity to the issue of the presumption as a rule of evidence and a procedural convenience.
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Citation
G. Michael Fenner, Presumptions: 350 Years of Confusion and It Has Come to This, 25 Creighton L. Rev. 383 (1992), reprinted in Evidence for the Nebraska Practitioner (Creighton Univ. Sch. of Law ed., 1994).
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0011-1155
2168-9261
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