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  • Ashley Baker

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

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 inte