By: Emile J. Katz*
Abstract
Federal courts periodically create and apply new evidentiary presumptions—inferential rules that conclude a particular fact exists— the application of which are frequently outcome determinative. Although presumptions have been the topic of academic literature, little attention has been paid to what authority federal courts have to create new presumptions in the first instance. Accordingly, this Article analyzes whether federal courts are authorized under the U.S. Constitution or other law to create new evidentiary presumptions. It concludes that federal courts have no inherent power to create new evidentiary presumptions. Rather, federal courts may create presumptions only pursuant to congressional delegation of rulemaking authority and consistent with the procedures delineated in the Rules Enabling Act. Consequently, when courts create new presumptions in individual cases, they violate both the constitutional separation of powers and the Rules Enabling Act. This Article continues by discussing the implications of new judicially created presumptions for procedural fairness and confidence in the judicial system. Lastly, this Article discusses how and when new presumptions may be created by the judiciary.
* Assistant Professor of Law, New England Law | Boston. For helpful comments and suggestions, I thank Lila Englander, Alan Spellberg, and Catherine Cole.