Legal Presumption Research Articles

Reexamining the Seventh Amendment Argument Against Issue Certification

Issue certification does not run afoul of the Seventh Amendment because of the constitutional doctrines of standing and ripeness. Part II(A) and II(B) examines FRCP 23 and the history of class actions and issue certifications. Next, Part II(C) analyzes Rhone Poulenc and its Seventh Amendment analysis. Part III(A) argues that ripeness and standing undermine Seventh Amendment arguments concerning reexamination. First, as to ripeness, the reexamination argument relies on a series of speculations: that the class plaintiffs will prevail on the trial of the common issues; and that a second jury would—contrary to legal presumptions — ignore the trial judge’s instructions, and then reexamine some part of the class decision. These multiple suppositions should not preclude issue classes. Second, even if the matter becomes ripe, the defendant will still lack standing: it is only when the issue-class plaintiff prevails on the first round that a second jury could exist. If the second jury spurns the trial court’s instructions by revisiting issues decided in the first trial, that reexamination would likely redound to the defendant’s benefit, diminishing in some manner the common issue finding favoring the class plaintiffs. Thus, the defendants would lack standing to advance a Seventh Amendment claim because the defendants would suffer no harm. Finally, Part III(B) notes that the class plaintiffs—the likely potential victims of any jury reexamination—can avoid a Seventh Amendment complaint by voluntarily and knowingly waiving violations, just as American citizens can for any of their constitutional rights.

Article 101 TFEU and the EU Courts: Adapting legal form to the realities of modernization?

The modernization of EU competition law directly invited classic interpretations of Article 101TFEU to be attuned to the realities of a more economically sound effects-focused assessment framework. More economics-inspired analysis did not however imply the end of formal legal reasoning in EU competition law. In their recent case law, the European Court of Justice and General Court rather developed or restructured particular form-based legal arguments and presumptions into essential supporting instruments for an administrable and effective effects-focused application and enforcement of Article 101 TFEU. This contribution outlines those restructured arguments and presumptions and identifies the newly developing balance between legal form and effects-focused analysis taking shape in that regard.

National Tax Law Presumptions and EU Law

Legal presumptions serve essential and legitimate needs in national legal orders, where they are introduced for the purpose of simplifying the assessment and the recovery of tax or for tackling tax avoidance or evasion. Nowadays, however, the national choices concerning the use of tax law presumptions must be tested against European Union (EU) law, both in uniform or harmonized sectors and, albeit to a different extent, in non-harmonized ones. In this article, after a brief discussion of the meaning and relevance of the concept on the basis of national juridical traditions, the case law of the Court of Justice of the European Union (CJEU) concerning the repayment of taxes unduly levied is analysed, so as to highlight the core scheme adopted when it evaluates the national tax law presumption's compatibility with EU law. Afterwards, an examination of the most relevant CJEU case law on legal presumptions in different tax matters (customs law, VAT, direct taxation) is carried out. This, with a view to catching some interpretative trends peculiar to specific domains of taxation which should guide national legislators. Finally, some general conclusions are developed on the overall approach to national tax law presumptions in the context of EU law, with an eye to national experiences.

Plan B morning after pill.

The decision to make available over the counter Plan B morning after pills to girls of any age by Federal Judge Edward Korman is not only imprudent but dangerous for young girls. There have been fe...

From the Rule of One to Shared Parenting: Custody Presumptions in Law and Policy

Child custody presumptions have formed part of Anglo‐American law for centuries. Both the paternal preference rule at common law and the tender years doctrine that supplanted it in the nineteenth century signaled the law's conviction that custody was indivisible: after a marital breakup, children could be entrusted to only one parent, with the other an infrequent visitor. This “rule of one” began to weaken in the last third of the twentieth century, as the movement toward gender equality called attention to the importance of both parents in the care and nurturance of children and loosened the link between gender and parenting role. Left without a presumption to direct their custody deliberations, courts turned—often by legislative fiat—to the more inclusive but less definitive best interests standard. Although sole custody decrees were still the norm, some courts began to see in joint custody an opportunity for a child to continue a strong and meaningful relationship with both parents. Courts, legislatures, and commentators are changing the vocabulary of child custody to reflect the evolving reality of twenty‐first century family life. Parental responsibilities after separation or divorce are increasingly referred to as “decision‐making” instead of “legal custody” and as “parenting time” in lieu of “physical custody.” Calls for a 50/50 joint parenting time/physical custody presumption have sparked controversy. In some states, legislation already aims to ensure frequent and continuing parent–child contact with no specific temporal sharing formula. But putting any of these presumptions into effect in light of the statutory “best interests” concerns make the court's task—absent parental agreement—extremely complex. The interplay of domestic violence and “friendly parent” provisions with joint custody presumptions pose another array of complicating factors. Context is critical in assessing these statutory choices, on which no consensus currently exists. The task now is to avoid using the hard edge of legal presumptions to undermine the lived experience of children, while at the same time circumventing the perils of unpredictable case‐by‐case determinations unguided by presumptions or preferences. The most promising efforts chart a third course: nudging separating and divorcing parents into a framework that encourages them to implement shared parenting. Shifting the parental focus from litigating custody to jointly crafting a parenting plan also may serve to alleviate the worst aspects of the trauma children often experience when their parents break up. Key Points for the Family Court Community: Until recently, child custody presumptions adhered to a “rule of one”: courts generally insisted that only one parent could properly be awarded child custody. Child custody law is moving toward a norm of shared parenting, with frequent and continuing contact provided for each parent. Legal terminology is also shifting to encourage collaborative parenting. “Decision‐making” is replacing “legal custody,” and “physical custody” is giving way to “parenting time.” A legal presumption of joint custody may mean no more than a generalized shared parenting arrangement, but applying the emerging statutes and case law to award joint custody can involve a quite complex determination process. Shifting the parental focus from litigating custody to implementing a shared parenting plan may avoid the pitfalls of litigating under the “best interests” standard either with or without a legal presumption.

Joint Legal Custody Presumptions: A Troubling Legal Shortcut

This article examines the legal operation and impact of legal custody presumptions. We compare the nature of joint legal and joint physical custody and explore common misunderstandings about how presumptions work and their practical repercussions for children and parents. We conclude that legal custody presumptions are not suited to the task of promoting quality decision making and healthy parent–child relationships and they recommend alternative approaches. Key Points for the Family Court Community: The operation and impact of legal custody presumptions are often misunderstood by practitioners. The goal of quality decision making on behalf of children is more realistically achieved through other approaches.

Perspectives on Joint Custody Presumptions as Applied to Domestic Violence Cases

Despite the trend toward statutory presumptions in favor of joint legal and physical custody, practitioners increasingly recognize that domestic violence has serious implications for the efficacy and safety of parenting and shared care. This article explores the implications of domestic violence for shared parenting and for the statutory legal and physical custody presumptions and exceptions which are triggered by or are applicable to domestic violence. This article proposes that a better framework for addressing intimate partner violence–related custody cases is one that guides practitioners toward fact‐based determinations of the implications of the violence for parenting and co‐parenting in individual cases.Key Points for the Family Court Community:Parents who are coercive controlling abusers frequently exhibit the types of problematic parenting behaviors which make shared parenting unrealistic.Instead of applying blanket joint custody presumptions, all family court practitioners, including judges, should: (1) be alert to signs that domestic violence may be an issue; (2) understand the nature and context of any abuse; (3) determine the implications, if any, of the abuse for parenting and co‐parenting; and (4) account for the violence and its implications in their handling of cases.Exceptions for domestic violence cases fail to prevent the inappropriate application of joint custody presumptions to many families for whom domestic violence is a significant issue because: (1) abuse is often not detected by the system, (2) victims have problems proving that the abuse occurred, and (3) many practitioners are disinclined to believe that the abuse occurred.

A Presumptively Better Approach to Arbitrability

One of the most complex problems in the arbitration field is the question of who decides disputes over the scope of an arbitrator’s purported authority. Courts in Canada and the United States have taken different approaches to this fundamental question of “arbitrability” that necessarily arises when one party disputes the contractual validity of the underlying “container” contract carrying the arbitration clause. If arbitration is a creature of contract, and contract is a product of consensual agreement, then any dispute that impugns the underlying consent of the parties to the container contract implicates the arbitration agreement itself (i.e., no contract, no arbitration agreement). The U.S. approach of “separability” dates back a half-century to a Supreme Court case that was controversial when it was decided and remains so today. The Supreme Court has added several more decisions trying to clarify its arbitrability rules within just the past few years. The Canadians too have tried to sort out this mess, seizing upon the hoary legal distinction between law and fact, also offering recent Supreme Court pronouncements. Neither country’s approach is normatively or functionally satisfying.After discussing and critiquing the two approaches comparatively, we offer our own proposal. We too deploy legal presumptions, but in our case we focus on what we contend are the two most relevant criteria: (1) the nature of the legal challenge to the underlying container contract, and (2) the type of contract at issue. Challenges to consent in contract formation and contracts involving adhesion should be specially scrutinized by the courts before carting parties off to arbitration, whereas commercial agreements between sophisticated actors should presumptively be for arbitral resolution, even for “constitutive” challenges to the underlying contract.

The Evolution and Vitality of Merger Presumptions: A Decision-Theoretic Approach

This article reviews the formulation and evolution of the Philadelphia National Bank anticompetitive presumption through the lens of decision theory and Bayes Law. It explains how the economic theory, empirical evidence and experience are used to determine a presumption and how that presumption interacts with the reliability of relevant evidence to rationally set the appropriate burden of production and burden of persuasion to rebut the presumption. The article applies this reasoning to merger presumptions. It also sketches out a number of non-market share structural factors that might be used to supplement or replace the current legal and enforcement presumptions for mergers. It also discusses the potential for conflicting presumptions and how such conflicts might best be resolved.

Understanding the Nature of the Presumption of Resulting Trusts

The nature of the presumption of a resulting trust has generated a controversy, which has created two schools of thoughts. Both schools of thoughts claim that resulting trusts give effect to the presumed intention, positive or negative. But in this paper, I take on a quite different view of point that whether a lack of intent to benefit or a positive intent to create a trust is not related with the presumption of the resulting trusts, which, I believe, will make it interesting to general readers. Further, this paper thinks the presumption of a resulting trust as circumstances or facts based on presumption, legal presumption and thinks that it can be rebutted by evidential circumstances, which are helpful to ascertain the grounds for imposing a resulting trust. In a word, exploring the nature of the presumption of resulting trusts will aid in the understanding the grounds upon which a resulting trust is imposed. This article proceeds under four parts: the role of intention in the presumption of the resulting trusts; the circumstances or facts based on presumption; a legal presumption; rebutting by evidential circumstances.

The Private Effect of the Free Movement of Goods: Examining Private-Law Bodies’ Activities under the Scope of Article 34 of the Treaty of the Functioning of the European Union

This case concerned a dispute between private bodies Fra.bo SpA and the DVGW. The question was whether Article 34 TFEU must be interpreted as meaning that it applies to standardization and certification activities by a private-law body recognized by national law, where national legislation considers the products certified by that body to be compliant with national law, having the effect of restricting the marketing of products which are not certified by that body. The Court determined that, Article 34 TFEU had been infringed. It emphasized the presumption of legality with German national law and the fact that there exist no real alternatives to obtain the required certificate. This case note establishes that the Court did not grant horizontal effect to Article 34 TFEU, but that it merely extended the application of the Article. Further, it examines some issues and possibilities with regard to the application of the competition law doctrine.

Who’s My Real Daddy?

False paternity occurs when a man is incorrectly presumed, acknowledged, or adjudicated to be the father of a child even though, contrary to his own belief, he has no biological relationship to the child. In Texas, over 85% of cases of false paternity result when paternity is initially established by a legal presumption or voluntary acknowledgement. However, instead of amending the laws on how paternity is initially established, Texas attempts to remedy false paternity merely by determining the situations in which paternity may be disestablished. The effects of disestablishing paternity vary wildly and can be devastating to the child, the alleged father, and the biological father. In Part II, this Comment will examine the prevalence of false paternity in Texas, the causes of false paternity, and the consequences of false paternity. In Part III, this Comment will propose proactive solutions that aim to deter incidents of false paternity while balancing the interests of the child against the interests of alleged fathers, biological fathers, and the state. Finally, in Part IV, this Comment proposes a solution that aims to remedy specific incidents of false paternity without destroying nurtured father-child relationships.

Assessing Market Efficiency for Reliance on the Fraud-on-the Market Doctrine After Wal-Mart and Amgen

Following the Supreme Court’s 1988 decision in Basic, securities class plaintiffs can invoke the “rebuttable presumption of reliance on public, material misrepresentations regarding securities traded in an efficient market” [the “fraud-on-the market” doctrine] to prove class-wide reliance. Although this requires plaintiffs to prove that the security traded in an informationally efficient market throughout the class period, Basic did not identify what constituted adequate proof of efficiency for reliance purposes. Market efficiency cannot be presumed without proof because even large publicly-traded stocks do not always trade in efficient markets, as documented in the economic literature that has grown significantly since Basic. For instance, during the recent global financial crisis, lack of liquidity limited arbitrage (the mechanism that renders markets efficient) and led to significant price distortions in many asset markets. Yet, lower courts following Basic have frequently granted class certification based on a mechanical review of some factors that are considered intuitive “proxies” of market efficiency (albeit incorrectly, according to recent studies and our own analysis). Such factors have little probative value and their review does not constitute the rigorous analysis demanded by the Supreme Court. Instead, to invoke fraud-on-the market, plaintiffs must first establish that the security traded in a weak-form efficient market (absent which a security cannot, as a logical matter, trade in a “semi-strong form” efficient market, the standard required for reliance purposes) using well-accepted tests. Only then do event study results, which are commonly used to demonstrate “cause and effect” (i.e., prove that the security’s price reacted quickly to news --- a hallmark of a semi-strong form efficient market) have any merit. Even then, to claim class wide reliance, plaintiffs must prove such cause and effect relationship throughout the class period, not simply on selected disclosure dates identified in the complaint as plaintiffs often do. These issues have policy implications because, once a class is certified, defendants frequently settle to avoid the magnified costs and risks associated with a trial, and the merits of the case (including the proper application of legal presumptions) are rarely examined at a trial.

Suspicionless DNA Collection from Arrestees Violates the Fourth Amendment, But Easier Expunction of DNA Records Can Help Mitigate the Harm

Suspicionless DNA collection from pre-conviction arrestees should be treated as a violation of the Fourth Amendment when it is conducted without a valid search warrant. The predominant policy justifications for that DNA collection (1) as a crime-fighting tool and/or (2) a modern identification tool, like high-tech versions of fingerprints, are not compelling enough to justify treating the process as comporting with the Fourth Amendment. Arrestees do not have the same low expectation of privacy as prisoners or convicts, and treating them as if they do violates their legal presumption of innocence. The public interest in fighting crime and identifying arrestees also fits within the ordinary role of law enforcement, meaning that those activities do not qualify for the special needs exception to the individualized suspicion required for most Fourth Amendment searches and seizures. However, since the Supreme Court upheld suspicionless arrestee DNA collection, analysis, and aggregation in a nationwide DNA database (in Maryland v. King, 133 S. Ct. 1958 (2013)), participating states should adopt measures requiring automatic expunction of the DNA records of any arrestees who are not convicted within a reasonable amount of time from when they were arrested for the crime that led to the collection of their DNA.

Who is Presumed Innocent of What by Whom?

The article analyses the components of the presumption of innocence and tries to clarify some of the conceptual and logical difficulties surrounding the notion of ‘innocence’ and the structure of legal presumptions. It is argued that all conceivable literal interpretations of the maxim make little or no sense, and that the presumptions form is, as such, devoid of original content: presumptions do not explain nor justify anything but are auxiliary norms which refer to the legal consequences spelled out in other norms. Therefore, the presumption of innocence can be used to express any kind of requirement and standard for the criminal process and the treatment of suspect citizens only in a tautological, albeit rhetorically forceful, way. This instrumental use of the presumption of innocence is theoretically without merit but can be practically beneficial as long as there is no developed system of fundamental rights and protections of individual freedoms in a given legal order. Finally, a functional understanding of the presumption of innocence is proposed which gives it an original, though limited field of application as a guarantee of the procedure itself, in particular of the openness of the outcome.

Problems of our own making: A view from both sides of the coin

Problems of our own making: A view from both sides of the coin

Presumptions in Legal Argumentation

AbstractIn this paper a theoretical definition that helps to explain how the logical structure of legal presumptions is constructed by applying the Carneades model of argumentation developed in artificial intelligence. Using this model, it is shown how presumptions work as devices used in evidentiary reasoning in law in the event of a lack of evidence to assist a chain of reasoning to move forward to prove or disprove a claim. It is shown how presumptions work as practical devices that may be useful in cases in which there is insufficient evidence to prove the claim to an appropriate standard of proof.

CONTROLE JUDICIAL DO ATO ADMINISTRATIVO AMBIENTAL

Este trabalho visa avaliar o controle judicial atual dos atos administrativos ambientais, considerando a evolução da doutrina jurídica pós Constituição Federal de 1988, cuja concepção vem, paulatinamente, sendo alterada a partir de então. A inserção, no texto constitucional, de princípios norteadores da administração pública, aliada aos mandamentos específicos da tutela ambiental, vem levando os estudiosos do direito a modificarem a visão tradicionalista do princípio da presunção de legalidade do ato administrativo, quando este puder causar significativo dano ambiental à biodiversidade. Tal posicionamento da doutrina jurídica tem levado alguns tribunais a apreciarem, com maior rigor, os princípios norteadores do ato administrativo ambiental, analisando não só seus aspectos formais, mas também sua motivação, razoabilidade, proporcionalidade e finalidade. Entretanto, a defesa dos doutrinadores do direito administrativo na ampliação do controle judicial do ato administrativo ambiental, não vem se traduzindo em uma sensível alteração na jurisprudência, que ainda reflete um posicionamento dos tribunais na análise exclusiva da parte formal do processo. O controle judicial ampliado, apesar de ainda não ser uma regra na análise judicial dos atos administrativos ambientais, demonstra um caminho a ser alcançado na preservação dos recursos ambientais, ampliando os mecanismos de controle hoje existentes.

YOUNG CHILDREN, ATTACHMENT SECURITY, AND PARENTING SCHEDULES

The focus of a recent Family Court Review Special Issue on attachment, separation, and divorce included perspectives primarily from researchers in the Bowlby/Ainsworth tradition. A number of the authors made recommendations against overnight visits for very young children. I review conceptualizations and measures of attachment security as well as empirical findings. Currently the foundation to make general recommendations regarding overnight visits is inadequate. Caution is needed in using attachment measures in court evaluations and regarding restrictive legal presumptions and theoretical orientations. Custody and access evaluations and decisions need to apply scientifically sound principles to the individual characteristics of each case.Key Points for the Family Court Community: Simple “yes” or “no” answers are inadequate regarding the question of overnight visits for young children. Attachment security can change and is influenced by multiple factors over the life span. There are important scientific, ethical, and cost factors when considering the possible use of attachment security measures in custody evaluation. Scientific findings about how overnight visits affect young children are mixed and seem best explained by differences in parental characteristics and interactions. Each case deserves decision‐making based on careful reasoning, informed by scientific findings and the relevant individual circumstances.

Consenting Under Stress

This article highlights a disturbing gap between what is currently known about stress across a range of disciplines and the way stress is treated at law. It does so by focusing on parties who seek relief from harmful contracts, on the grounds that they consented under stress. The article first exposes the leading legal view that stress is merely a subjective feeling and therefore merits no legal recognition. It then provides a pragmatic synthesis of the rich study of stress, in order to counter that misguided legal presumption and to offer a better understanding of the physical, social and psychological dimensions of stress. Exploring both scientifically accepted causes of stress (stressors) and its known outcomes, the article offers a new framing of stress and a set of analytic tools that allow better legal access to the problem. It argues that legal actors can and should use the non-legal scientific understanding of stress to evaluate the arguments of those who claim to have consented to an unwanted contract while under stress. The article concludes that informed evaluation of stress arguments is not only pragmatically necessary, but also conceptually required for any legal system that, like contract law, relies on the power of choice and consent.