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

“Silly girls” and “nice young lads”: vilification and vindication in the perceptions of medico-legal practitioners in rape cases

In this article, we explore perceptions and presumptions in relation to rape, raped women, and rapists, among medico-legal professionals who perform forensic medical examinations in rape cases. We draw upon data from in-depth interviews conducted with forensic medical examiners and forensic nurse practitioners in one area of England. Findings reveal that many of these personnel hold particular views centered broadly on the vilification of victims and the vindication of perpetrators. We conclude that these perceptions and presumptions may hold concerning implications for both victim experiences and evidentiary and judicial outcomes. </jats:p

An Enquiry Meet for the Case: Decision Theory, Presumptions, and Evidentiary Burdens in Formulating Antitrust Legal Standards

Presumptions have an important role in antitrust jurisprudence. This article suggests that a careful formulation of the relevant presumptions and associated evidentiary rebuttal burdens can provide the “enquiry meet for the case” across a large array of narrow categories of conduct confronted in antitrust to create a type of “meta” rule of reason. The article begins this project by using decision theory to analyze the types and properties of antitrust presumptions and evidentiary rebuttal burdens and the relationship between them. Depending on the category of conduct and market structure conditions, antitrust presumptions lie along a continuum from conclusive (irrebuttable) anticompetitive, to rebuttable anticompetitive, to competitively neutral, and on to rebuttable procompetitive and conclusive (irrebuttable) procompetitive presumptions. A key source of these presumptions is the likely competitive effects inferred from market conditions. Other sources are policy-based -- deterrence policy concerns and overarching policies involving the goals and premises of antitrust jurisprudence. Rebuttal evidence can either undermine the facts on which the presumptions are based or can provide other evidence to offset the competitive effects likely implied by the presumption. The evidentiary burden to rebut a presumption depends on the strength of the presumption and the availability and reliability of further case-specific evidence. These twin determinants can be combined and understood through the lens of Bayesian decision theory to explain how “the quality of proof required should vary with the circumstances.” The stronger the presumption and less reliable the case-specific evidence in signaling whether the conduct is anticompetitive versus procompetitive, the more difficult it will be for the disfavored party to satisfy the evidentiary burden to rebut the presumption. The evidentiary rebuttal burden generally is a burden of production, but also can involve the burden of persuasion, as with the original Philadelphia National Bank structural presumption, or typical procompetitive presumptions. If a presumption is rebutted with sufficient offsetting evidence to avoid an initial judgment, the presumption generally continues to carry some weakened weight in the post-rebuttal phase of the decision process. That is, a thumb remains on the scale. However, if the presumption is undermined, it is discredited and it carries no weight in the post-rebuttal decision process. The article uses this methodology to analyze various antitrust presumptions. It also analyzes the, burden-shifting rule of reason and suggests that the elements should not be rigidly sequenced in the decision process. The article also begins the project of reviewing, revising and refining existing antitrust presumptions with proposed revisions and refinements in a number of areas. The article invites other commentators to join the project by criticizing these proposals and suggesting others. These presumptions then could be applied by appellate courts and relied upon by lower court, litigants and business planners

Spelling Guilt out of a Record? Harmless Error Review of Conclusive Mandatory Presumptions and Elemental Misdescriptions

Part I of this Article summarizes the history of harmless-error review. Part II explains more fully the constitutional infirmities generated by conclusive mandatory presumptions and elemental misdescriptions, and demonstrates that the unique nature of these infirmities complicates the question of how courts should review them for harmlessness. It also examines the Supreme Court\u27s attempts to answer the questions of whether, and how, conclusive mandatory presumptions and elemental misdescriptions should be reviewed for harmlessness. In so doing, it focuses particularly on how these attempts have been undermined by the Court\u27s failure to take account of the structural rights undermined by these errors. Finally, Part III argues that the Constitution, relevant Supreme Court precedent, and policy considerations require application of the test specified in Justice Scalia\u27s opinion concurring in the judgment in Carella v. California when courts confront challenges to conclusive mandatory presumptions and elemental misdescriptions. It also contends that this test should apply on direct and collateral review

Ten years on: consent under the Sexual Offences Act 2003

As the clock ticked over from 30th April to 1st May 2004 the Sexual Offences Act 20031 came into force and the Sexual Offences Act 19562 was repealed, fundamentally changing the law on sexual offences in England and Wales. Perhaps the most major changes were in respect of consent. This article examines on the changes the Act made to three aspects of consent: the provision of a statutory definition, the effect of deception of C on the validity of C’s consent and the role of D’s belief in C’s consent. To this end the article considers the pre-SOA 2003 law on consent, the impetus and proposals for reform, the Act and how it has been implemented by the courts and finally how the Act could be improved to provide greater clarity substantively and procedurally to achieve the aims which lay behind the reform of consent in the first place

The posssibilities of railway transport utilizing as a backbone network of integrated passenger transport systems

The aspects of utilizing of railway transport as a backbone network of integrated passenger transport systems are solved in the contribution. The basic requirements on this railway transport service are specified in the contribution. The main attention is focused on creating of line structure of the integrated transport systems. The location of interchange points is also accented in the contribution. The theoretical presumptions are also illustrated in the way of convenient practical examples