Guilty Until Proven Innocent? Shifting the Burden of Proof in Competition Law

December 3, 2020



Federalist Society Explainer Podcast Episode:


Recently, the House Committee on the Judiciary released a report on the state of competition in the digital marketplace that was the result of a 16 month long investigation. The report describes itself as being “an attack on how America has approached antitrust for the past 40 years.” One of the recommendations in the report inverting the evidentiary burden of proof and shifting it away from the plaintiff to the defendant, particularly in civil mergers challenges.


Burden-shifting provisions that would require a company to prove it is not a monopoly would signify a return to the highly interventionist pre-1970s antitrust jurisprudence. Furthermore, many argue that shifting the burden to the defendant offends our sense of due process and fairness, and would diminish the role of the federal judiciary. 


In this episode, Ashley Baker lays out the current framework used in U.S. courts for meeting the burden of proof in competition law cases, the role of presumptions in antitrust litigation, and the implications of shifting the burden to the defendant. 




Ashley Baker, Director of Public Policy, Committee for Justice


View on the Federalist Society website



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