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established, the existence of fact B must be assumed unless the presumed fact is rebutted. A presumption therefore operates to relieve a party of the burden of establishing facts that it would otherwise be required to prove in order to prevail on its claim. A presumption that cannot be rebutted is a rule of substantive law; it does not satisfy the definition of a presumption because fact B must be assumed conclusively rather than conditionally. It does not allow for the possibility that fact B can be disproved.

A legislature has numerous choices when drafting a presumption; there is no uniform terminology that must be employed. To ensure passage, presumptions are often couched in somewhat ambiguous terms, particularly when they deal with sensitive and controversial policy issues. The result may be a deliberate fuzziness and ambiguity in the language that governs a particular presumption that will ultimately require recourse to the courts (Allen, 1980). Consequently, it is not always simple to determine precisely why a particular presumption was adopted or how it should be interpreted.

Why Are Presumptions Created?

Presumptions are created for a number of reasons. They promote fairness by simplifying proceedings and by making it less burdensome for claimants to gather evidence that is more accessible to the party against whom the claim is asserted. When the probability of the presumed fact’s existence is high if the basic fact exists, presumptions eliminate the expense and time that would be required to establish the presumed fact by direct evidence. Sometimes presumptions are established for policy reasons because of a desire to make it easier for particular types of claimants to establish their claims. This may for instance be true for veterans’ claims when information needed for an epidemiologic assessment, such as exposure data, is unavailable because it was not collected at the relevant time. Gratitude and sympathy for those who served their country obviously also play an important role (Reagan, 1988).

What Does a Presumption Do?

A true presumption affects the burden of proof. This can, however, mean different things as legislators, administrators, and judges do not always use consistent terminology to express their intentions. Burden of proof is a term used to label two different concepts: the burden of production and the burden of persuasion (Director, Office of Workers’ Compensation Programs, Department of Labor v. Greenwich Collieries et al., 1994. 512 U.S. Supreme Court 267, Case No. 93-744). See 512 U.S. Supreme Court 267, Case No. 93-744, for an extensive discussion of the evolution



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