The House Committee on the Judiciary recently 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.

This episode 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.