§ 5.05 FEDERAL RULE 301

• Jurisdiction: North Carolina

§ 5.05. FEDERAL RULE 301

As originally proposed by the Supreme Court, Rule 301 embraced the Morgan view of presumptions.²⁸ Congress, however, amended this rule. Although it is clear that Rule 301, as enacted, rejected the Morgan view, it was not as clear that it adopted the Thayer view.²⁹ Nevertheless, courts³⁰ and commentators believe that Congress "settled in Rule 301 on what is essentially the Thayer view."³¹

Yet, the rule does not specify the standard for determining the sufficiency of rebuttal evidence. Under caselaw, the presumption is rebutted if sufficient evidence is introduced from which a reasonable jury could find the nonexistence of the presumed fact.³²

Exceptions. Congress has the authority to adopt a Morgan presumption. For example, in Microsoft Corp. v. i4i Ltd. Partnership,³³ the Supreme Court had to interpret a statutory presumption regarding the validity of a patent. The Court observed: "[B]y its express terms, § 282 establishes a presumption of patent validity, and it provides that a challenger must overcome that presumption to prevail on an invalidity defense. But, while the statute explicitly specifies the burden of proof, it includes no express articulation of the standard of proof."³⁴ Based on the legislative history, the Court concluded that the presumption of validity can be rebutted only by "clear and cogent evidence." Note that this presumption shifts not only the burden of persuasion but elevates the requisite standard of proof.³⁵

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Notes:

^[28] "In all cases not otherwise provided for by Act of Congress or by these rules a presumption imposes on the party against whom it is directed the burden of proving that the nonexistence of the presumed fact is more probable than its existence." 56 F.R.D. 208 (1973).

^[29] The source of the confusion stems from the Conference Report, which reads in part: "[i]f the adverse party offers no evidence contradicting the presumed fact, the court will instruct the jury that if it finds the basic facts, it may presume the existence of the presumed fact." H. Rep. No. 1597, 93d Cong., 2d Sess., reprinted in [1974] U.S.C.C.A.N. 7098, 7099 (emphasis added). Under the Thayer view, if "no evidence contradicting the presumed fact" is offered, the adverse party has not satisfied its burden of production and suffers a directed verdict on the issue. In short, there is no reason to instruct the jury that it "may presume" anything. See 21 Wright & Graham, Federal Practice and Procedure § 5122, at 570-73...