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The Public Face of Presumptions

Published online by Cambridge University Press:  03 January 2012

Karen Petroski
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Abstract

We commonly think of presumptions as second-best inferential tools allowing us to reach conclusions, if we must, under conditions of limited information. Scholarship on the topic across the disciplines has espoused a common conception of presumptions that defines them according to their function within the decisionmaking process. This focus on the “private” face of presumptions has generated a predominantly critical and grudging view of them, perpetuated certain conceptual ambiguities, and, most important, neglected the fact that what we refer to as “presumptions” have distinguishing features other than the defeasibility and burden-shifting effects associated with their use as inferential tools. When a decisionmaker gives reasons for a conclusion, the decisionmaker often cites a presumption among the reasons for that conclusion; in this guise–their “public” face–presumptions display different, and uniquely valuable, features that remain hidden if we understand them only as aids to inference. This essay both surveys recent approaches to the critical analysis of presumptions in law, philosophy, and discourse studies, and offers an account of how we might begin to think about this other, public face of presumptions.

Type
Research Article
Information
Episteme , Volume 5 , Issue 3 , October 2008 , pp. 388 - 401
Copyright
Copyright © Cambridge University Press 2008

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References

REFERENCES

Allen, Ronald J. 1981. “Presumptions in Civil Actions Reconsidered.” Iowa Law Review 66: 843–67.Google Scholar
Allen, Ronald J. & Callen, Craig R.. 2003. “The Juridical Management of Factual Uncertainty.” International Journal of Evidence & Proof 7: 1–30.Google Scholar
Allen, Ronald J. & Pardo, Michael S.. 2003. “The Myth of the Law-Fact Distinction.” Northwestern University Law Review 97(4): 1769–1807.Google Scholar
American Banana Co v. United Fruit Co., 213 U.S. 347 (1909).Google Scholar
Friedman, Richard D. 1992. “Standards of Persuasion and the Distinction Between Fact and Law.” Northwestern University Law Review 86(4): 916–42.Google Scholar
Gaskins, Richard H. 1992. Burdens of Proof in Modern Discourse. New Haven, CT: Yale University Press.Google Scholar
Goldman, Alvin I. 1999. Knowledge in a Social World. Oxford: Oxford University Press.CrossRefGoogle Scholar
Hecht, Neil S. & Pinzler, William M.. 1978. “Rebutting Presumptions: Order out of Chaos.” Boston University Law Review 58: 527–58.Google Scholar
Kaiser, David. 1955. “Presumptions of Law and of Fact.” Marquette Law Review 38: 253–61.Google Scholar
Leibniz, Gottfried W. 1702/1887. “Letter to M. Jacquelot.” In Philosophische Schriften, Vol. 3. Gerhardt, C. I. (ed.). Berlin: Weidmannsche Buchhandlung.Google Scholar
McBaine, John P. 1938. “Presumptions: Are They Evidence?” California Law Review 26: 519–63.CrossRefGoogle Scholar
Morgan, Edmund M. 1930. “Some Observations Concerning Presumptions.” Harvard Law Review 44: 906–34.CrossRefGoogle Scholar
Morgan, Edmund M. 1937. “Presumptions.” Washington State Law Review & State Bar Journal 12: 255–81.Google Scholar
Morgan, Edmund M. 1955. “Presumptions.” Rutgers Law Review 10: 512–22.Google Scholar
Nance, Dale A. 1994. “Civility and the Burden of Proof.” Harvard Journal of Law & Public Policy 17: 647–90.Google Scholar
Olshausen, George C. 1943. “Evidence: Presumptions as Evidence –A Reply.” California Law Review 31: 316–25.CrossRefGoogle Scholar
Rescher, Nicholas. 2006. Presumption and the Practices of Tentative Cognition. Cambridge: Cambridge University Press.CrossRefGoogle Scholar
Schauer, Frederick. 1991. Playing by the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and in Life. Oxford: Clarendon Press.Google Scholar
Schauer, Frederick. 1995. “Giving Reasons.” Stanford Law Review 47: 633–59.CrossRefGoogle Scholar
Thayer, James B. 1898. A Preliminary Treatise on Evidence at the Common Law. Boston: Little, Brown.Google Scholar
Walton, Douglas. 1996. Argumentation Schemes for Presumptive Reasoning. Mahwah, NJ: Laurence Erlbaum Associates.Google Scholar
Whately, Richard. 1828/1852. Elements of Rhetoric. Boston: James Monroe & Co.Google Scholar