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SSRN Electronic Journal
Article . 2016 . Peer-reviewed
Data sources: Crossref
https://doi.org/10.31228/osf.i...
Article . 2018 . Peer-reviewed
Data sources: Crossref
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The Constitutional Accuracy of Legal Presumptions

Authors: Pandya, Sachin;

The Constitutional Accuracy of Legal Presumptions

Abstract

This paper is about a century-old yet durably-opaque constitutional doctrine that has the potential to disrupt every field of US law that uses legal presumptions. That doctrine demands, for any legal presumption, at least “some rational connection between the fact proved and the ultimate fact presumed.” The paper shows how that doctrine is best read to require likely-accurate presumptions, i.e., in the run of cases in which the presumption can apply, the probability of the presumed fact, given the proven fact, must provably exceed fifty percent. If so, however, lawyers and judges applying this doctrine face distinctive selection bias and reference class problems. The paper illustrates these and other issues with five 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; the tort law doctrine of res ipsa loquitor; a presumed damages amount for emotional distress; and presumptions about whether a worker is an “employee” or “independent contractor.” In so doing, this paper contributes to the legal and philosophical literature on presumptions in adjudication, as well as ongoing controversies in the US law of tort, work, damages, and bail.

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bepress|Law|Constitutional Law, LawArXiv|Law|Criminal Procedure, LawArXiv|Law|Labor and Employment Law, LawArXiv|Law|Torts, bepress|Law|Evidence, LawArXiv|Law|Evidence, LawArXiv|Law|Constitutional Law, bepress|Law|Criminal Procedure, LawArXiv|Law, bepress|Law, bepress|Law|Torts, bepress|Law|Labor and Employment Law

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selected citations
These citations are derived from selected sources.
This is an alternative to the "Influence" indicator, which also reflects the overall/total impact of an article in the research community at large, based on the underlying citation network (diachronically).
BIP!Citations provided by BIP!
popularity
This indicator reflects the "current" impact/attention (the "hype") of an article in the research community at large, based on the underlying citation network.
BIP!Popularity provided by BIP!
influence
This indicator reflects the overall/total impact of an article in the research community at large, based on the underlying citation network (diachronically).
BIP!Influence provided by BIP!
impulse
This indicator reflects the initial momentum of an article directly after its publication, based on the underlying citation network.
BIP!Impulse provided by BIP!
0
Average
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