ARTICLE III. PRESUMPTIONS IN CIVIL ACTIONS AND PROCEEDINGS

FEDERAL RULES OF EVIDENCE

NOTES TO RULE 302

HISTORY: (Jan. 2, 1975, P.L. 93-595, § 1, 88 Stat. 1931.)

Notes of Advisory Committee on Rules.

A series of Supreme Court decisions in diversity cases leaves no doubt of the
relevance of Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188
(1938), to questions of burden of proof. These decisions are Cities Service Oil Co. v.
Dunlap, 308 U.S. 208, 60 S.Ct. 201, 84 L.Ed. 196 (1939), Palmer v. Hoffman, 318
U.S. 109, 63 S.Ct. 477, 87 L.Ed. 645 (1943), and Dick v. New York Life Ins. Co., 359
U.S. 437, 79 S.Ct. 921, 3 L.Ed.2d 935 (1959). They involved burden of proof,
respectively, as to status as bona fide purchasers, contributory negligence, and
non-accidental death (suicide) of an insured. In each instance the state rule was held
to be applicable. It does not follow, however, that all presumptions in diversity cases
are governed by state law. In each case cited, the burden of proof question had to do
with a substantive element of the claim or defense. Application of the state law is
called for only when the presumption operates upon such an element. Accordingly
the rule does not apply state law when the presumption operates upon a lesser
aspect of the case, i.e. "tactical" presumptions.

The situations in which the state law is applied have been tagged for convenience in
the preceding discussion as "diversity cases." The designation is not a completely
accurate one since Erie applies to any claim or issue having its source in state law,
regardless of the basis of federal jurisdiction, and does not apply to a federal claim or
issue, even though jurisdiction is based on diversity. Vestal, Erie R.R. v. Tompkins: A
Projection, 48 Iowa L.Rev. 248, 257 (1963); Hart and Wechsler, The Federal Courts
and the Federal System, 697 (1953); 1A Moore, Federal Practice para. 0.305 [3] (2d
ed. 1965); Wright, Federal Courts, 217-218 (1963). Hence the rule employs, as
appropriately descriptive, the phrase "as to which state law supplies the rule of
decision." See A.L.I. Study of the Division of Jurisdiction Between State and Federal
Courts, § 2344(c), p. 40, P.F.D. No. 1 (1965).

Rule 302. Applicability of State Law in Civil Actions and Proceedings
 

Rule 301. Presumptions in General Civil Actions and Proceedings
Rule 302. Applicability of State Law in Civil Actions and Proceedings