§ 5.07 CHOICE OF LAW

• Jurisdiction: United States

§ 5.07. CHOICE OF LAW

Federal Rule 302 provides: "In a civil case, state law governs the effect of a presumption regarding a claim or defense for which state law supplies the rule of decision."³⁷ The rule is important in federal courts because the Supreme Court has held that, under the doctrine of Erie R.R. Co. v. Tompkins,³⁸ state law controls with respect to burdens of proof involving substantive elements of a claim or defense if state law determines the rule of decision.³⁹

An analogous issue may arise in state courts when the cause of action is based on federal law — for example, a claim arising under the Federal Employers' Liability Act.⁴⁰ Uniform Rule 302(c) provides: "In civil actions and proceedings, the effect of a presumption respecting a fact which is an element of a claim or defense as to which federal law supplies the rule of decision is determined in accordance with federal law."⁴¹ A similar "reverse Erie" issue arises with privileges.⁴²

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Notes:

^[37] See Wright v. Ford Motor Co., 508 F.3d 263, 273 (5th Cir. 2007) ("[U]nder Texas law presumptions are 'generally' treated as being of the so called 'Thayer' variety, namely presumptions which shift only the burden of production of evidence, which 'disappear' from the case once evidence is introduced sufficient to support a finding contrary to the presumed fact, and which do not shift the burden of persuasion. However other Texas presumptions — often referred to as 'Morgan' presumptions — do not so disappear and do operate to shift the burden of persuasion.") (citations omitted); Wood v. Valley Forge Life Ins. Co., 478 F.3d 941, 947 (8th Cir. 2007) ("The instruction incorporates the presumption against suicide that exists under Arkansas law. '[P]roof of death of an insured from injuries received by him raises a presumption of accidental death . . . and this presumption will continue until overcome by affirmative proof to the contrary.' ").

^[38] 304 U.S. 64 (1938).

^[39] See Dick v. New York Life Ins. Co., 359 U.S. 437 (1959); Palmer v. Hoffman, 318 U.S. 109 (1943); Cities Service Oil Co v. Dunlap, 308 U.S. 208 (1939).

^[40] 45 U.S.C. 51 et seq.

^[41] See St. Louis Southwestern Railway Co. v. Dickerson, 470 U.S. 409, 411 (1985) ("FELA cases adjudicated in state courts are subject to state procedural rules, but the substantive law governing them is federal.").

^[42] See...