In Suport of the Thayer Theory of Presumptions

A learned judge once said to a young lawyer, “If you are ever a trial court judge, never give reasons for your decisions. Your rulings will probably be right, but your reasons will likely be wrong.” That statement may aptly apply to judicial pronouncements relating to the subject of presumptions. Decisions are largely free from criticism so far as concerns the results reached, but the reasoning processes by which they are reached appear to be in hopeless confusion. It is believed that a theory can be presented which will both reconcile these confusions of judicial techniques and explain the general consistency in the results of decided cases. In part II of this essay an effort is made to do this. In the presentation and development the Thayer theory, which has been criticized by much legal writing of late, is supported, but with qualifying explanations believed important. First, it is believed desirable to limit the concept of the term “presumption.”