TOWARD A JURISPRUDENCE OF PRESUMPTIONS

There are two contemporary theories on how judges should go about applying the law. One is a rules-based approach, which holds that even factually compelling claims should be rejected if accepting them would conflict with strict application of the legal rule in question. The other is an equity-based approach, which holds that judges should decide cases according to standards of ''enlightened decency'' even if the result is the creation of numerous exceptions to a rule's plain meaning. In this Article, Judge Wilkinson proposes a practical third alternative: a jurisprudence of presumptions. This approach recognizes the inherent value of rules, but proposes that the strict dictates of rules be understood as susceptible to rebuttal under extraordinary circumstances. A presumptions analysis mitigates the harsher applications of the rules-based approach yet maintains the integrity of the rule of law that may be lost in a pure equity-based jurisprudence.