E-commerce litigation will give rise to new evidentiary problems. While these contract actions will involve traditional issues of best evidence, hearsay, parol evidence and statute of frauds, authentication may pose a special challenge. Because there are no face-to-face contacts between the buyer and seller, or exchange of "hard-copy" letterhead bearing written signatures (holographic or "wet"), identifying the author and authenticating the content of the e-mail message will inevitably involve resort to presumptions similar to those that have been used with the common law for transactions conducted by postal mail or telephone.
 

What Is A Presumption?
 

The presumption is a mechanism for shifting burdens relative to particular evidentiary conclusions during a trial. It is a short-cut to proof. For example, if Facts A, B, C and D would inevitably give rise to Fact E, the law may presume the existence of E by proof of the first four facts. Clearly, the popularly-known presumption of innocence in criminal cases is not a presumption at all. It is nothing more than a characterization of the initial allocation of the burden of persuasion in criminal prosecutions.
 

With regard to the mail, the law has recognized a presumption concerning the receipt of a letter by the addressee. If the plaintiff offers evidence that he (A) wrote a letter, (B) properly addressed it to the defendant, (C) place the proper amount of postage on it, and (D) placed the letter in a mail receptacle, the law presumes that (E) the addressee received the letter and therefore had notice of its content.
 

A similar presumption operated with regard to telephone calls to business establishments: if an individual proves that he (A) dialed the telephone number of a business establishment, and (B) spoke with someone about a particular matter (C) that is normally dealt with over the telephone, it is presumed (D) the receiver of the call was the person who identified himself and that he had the authority to speak for the business enterprise on that matter.
 

Presumptions are usually created because of the high probability that the presumed facts are true after the foundation facts have been established. Some presumptions are based on social policy -- a desire to protect innocent people (presumptions about paternity) or to give relief or medical treatment even when there is doubt as to whether claimants have met qualification standards ("Black Lung" disease by coal miners). Many are based on a combination of probability, social policy and fairness. For instance, the presumption that the addressee received a properly mailed letter is based on probabilities (due to the reliability of our postal services) and fairness -- the addressee, not the sender, has superior access to proof that he didn't receive what should have been received.
 

Although the authentication of e-mail ("e-authentication") may employ a number of the methods that have been available since the common law, e.g., handwriting identification (there are special, and increasingly-inexpensive, devices that permit the attachment of digital forms of cursive signatures), psycholinguistics (the unique manner in which an individual expresses himself) and the message's content (if it reveals information that was uniquely within the knowledge of a particular individual -- like an account number, password, or a credit card number), those may not be sufficient in the eyes of jurors. Since most contacts on the Internet between buyers and sellers will be impersonal and abbreviated, many of the common law methods of authentication will, as a practical matter, be unavailable.
 

Technology, too, will be helpful. As a telephone may have a caller identification feature, the recipient of an e-mail message might be able to identify the network account from which a transmission originated. In both instances, however, the technology only identifies the "instrument" used (the telephone, account, perhaps even terminal), not the individual who used the instrument. While there may be a logical inference that the defendant was the one who used his own equipment, when many others have access to it, that inference may not be strong enough to convince a jury.
 

Ultimately, courts will come to use presumptions. However, with all of the problems that currently exist with the Federal Rules of Evidence, see Rice, The Evidence Project: Proposed Revisions to the Federal Rules of Evidence with Supporting Commentary, 171 F.R.D. 330 (1997); and Rice & Delker, Federal Rules of Evidence Advisory Committee A Short History of Too Little Consequence, 191 F.R.D. 187 (2000), presumptions are, perhaps, the most confused, misunderstood and neglected areas of evidence law.
 

The Federal Rules of Evidence address only the effect of a presumption. Rule 301 provides that "a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption . . ." This skeletal provision leaves many questions unanswered. To understand the significance of what has been left unattended, it is first essential to understand how the presumption works.
 

How Presumptions Work
 

Once the foundation facts are proven -- for instance, that the letter was written, properly addressed, stamped and posted -- the law requires the opposing side to come forward with evidence to disprove the presumed fact. If there is no evidence offered by the opposing party to disprove the presumed fact (receipt of the letter) -- for instance, if he only offers evidence to disprove one or more of the foundation facts (letter written, properly addressed, stamped and posted) -- the presiding judge would instruct the jury at the end of the trial, "If you find that the letter was written, properly addressed to the opposing party, properly stamped and placed in a mail box, you must find that the opposing party received it." The effect of the presumption is mandatory: if the jury finds the foundation facts, it must find the presumed fact.
 

If, on the other hand, the opposing side comes forward with evidence to contest the presumed fact (receipt of the letter), under Rule 301 of the Federal Rules of Evidence the presumption disappears. This has been dubbed the "bursting bubble" theory of presumptions. After it has served its purpose -- the presumed fact has been met with evidence -- nothing is said to the jury about the presumption because it no longer exists. Consequently, the jury must decide the case based on the logical inferences that can be drawn from the evidence of mailing, independent of the presumption. No instruction on the presumption is appropriate because there is nothing left to instruct about.
 

A Better Presumption
 

Because this "bursting bubble" theory only requires the opposing party to come forward with some evidence of the non-existence of the presumed fact (even a mere statement that "I didn't receive it."), an alternative theory of presumptions has been proposed. This theory gives the presumption more substance and a greater purpose. Under this alternative theory the party against whom the presumption operates must disprove the presumed fact -- in other words it shifts the burden of persuasion, rather than just the burden of producing evidence, to the opposing party. For instance, with the properly mailed letter (or perhaps a properly sent e-mail message), the court will instruct the jury that because of the presumption (through proof of the foundation facts) the jury must find that the addressee received the letter or message unless the addressee convinces them otherwise. In other words, if the jury is in doubt, the party sending the message wins. By contrast, under the "bursting bubble" theory, which does not shift the burden of persuasion from the sender to the addressee, if the jury is in doubt, the addressee wins.
 

What's Wrong with Bursting Bubbles?
 

Because the "bursting bubble" presumption only shifts the burden of going forward (or producing evidence) to the opposing side, many members of Congress and judges believe that the presumption is a tool with no meaningful purpose. Since the factors that determine the initial allocation of the burden of persuasion -- probability, fairness, access to proof, and social policy -- are the same factors that control the creation of presumptions, opponents of the "bursting bubble" theory believe that the presumption should influence the burden of persuasion. They argue that presumptions should reallocate that burden based on the factual circumstances (the demonstrated equities and needs) of each case.
 

As a consequence, in legislative schemes, Congress often explicitly makes the enacted presumption shift the burden of persuasion. For example, under the "Black Lung" legislation, if a claimant is proven to have been a coal miner for a particular period of time, and black spots are found on his lungs (the foundation facts) the black spots are presumed to be "Black Lung" disease that was caused by his employment in the mines. This presumption shifts to the coal company the burden of proving that the claimant does not have that disease. This presumption is based on a combination of probability and social policy. Such legislation, of course, overrides Rule 301 of the Federal Rules of Evidence.
 

Without comparable power under the Evidence Code, the judiciary indirectly reaches the same result. Judges convert the codified "bursting bubble" presumption into a persuasion shifting presumption by continuing to instruct juries about the presumption after the "bubble" has been burst. For example, even if the alleged recipient of a letter testifies that he didn't receive it (which theoretically pricks the presumption bubble -- destroying it and leaving nothing to instruct about) some judges continue to give an instruction. They have instructed that if the jury finds that the letter was properly addressed, stamped and mailed, the jury may find that it was received.
 

Judges also have erroneously referred to presumptions themselves as "evidence" of the presumed facts that the jury should weigh. In each of these instances, the judges have inappropriately changed the nature and effect of the presumption. In a sense, they have used the presumptions as an excuse to comment on the evidence and the logical inferences that may be drawn from the foundation facts.
 

If Congress and judges are unhappy with theory adopted in Rule 301 of the Federal Rules of Evidence, they should change it. Article III is begging for attention. This need, however, stems from more than simply a flawed theory about its effect.
 

Unattended Issues in Rule 301
 

The Evidence Code was intended to supercede the common law rules of evidence. This raises an interesting issue with regard to presumptions since the Evidence Code recognizes no specific presumptions. Does this mean that the common law presumptions no longer exists unless they have been explicitly codified by Congress? There is no clear answer to this question.
 

Rule 102 does direct that the "rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined." However, in a different context the Supreme Court has held that the common law was not perpetuated by silence. Rule 801(d)(2)(D) codified a skeletal version of the common law's co-conspirator admission rule. The language of the Rule did not explicitly mention the common law restrictions that had modified co-conspirator admissions for decades. In U.S. v. Bourjaily, 483 U.S. 171 (1987) the Supreme Court concluded that the common law restrictions had been silently abandoned -- following the rule of construction, "If it ain't there, it ain't there."
 

Such an interpretation of Article III would leave it controlling a fewer number of statutory presumptions. Nevertheless, Rule 301 would still have a purpose. Therefore, interpreting the Evidence Code as not abolishing all common law presumptions is not a logical imperative. Reinforcing this conclusion is the fact that when common law rules have been perpetuated elsewhere in the Evidence Code -- for instance, in Article V, which addresses privileges -- the perpetuation of what was not codified was explicit. In addition, the self-authentication provision in Rule 902 (10) anticipates such Congressional enactments by identifying "[a]ny signature, document, or other matter declared by Act of Congress to be presumptively or prima facie genuine or authentic."
 

If, despite these arguments, common law presumptions are found to have survived codification, the next question would be whether trial judges would continue to have the common law power to modify them or create new presumptions The answer to this question will be important when e-commerce disputes are being litigated. While the "reply doctrine" may continue to assist in this regard, modifications of the foundation facts will undoubtedly be necessary. For example, if it can be established through technology that a communication came from a particular individual's computer account, it might be appropriate to presume that the communications came from the owner of the account or his authorized agent -- regardless of whether the message was in response to a previous contact by the recipient. Do the courts have the power to recognize this new presumption without an explicit legislative enactment? The simple, and unfortunate, answer is that we don't know. These issues of e-authentication could fairly be characterized as "old wine in new bottles," but it is by no means clear that judges are given the same corkscrews to open them.
 

While parties with an established and ongoing relationship can contract around this legislative uncertainty by incorporating contractually the acceptable presumptions under which they agrees to interact, this possibility is not available with initial contacts: clearly, the validity of any such contractual presumption between virtual "strangers" would be subject to the same authentication problem that the provision is designed to address.
 

Another Failure of the Advisory Committee Process
 

The Federal Rules of Evidence Advisory Committee has given no indication that it either recognizes the presumption problem, much less that it has any interest in addressing it. After provisions within the evidence code have been neglected for more than thirty years, and after nearly a decade of inadequate and often inconsequential tinkering by the current Advisory Committee (the foundation facts), it is past time for Congress to conclude that this Advisory Committee either cannot or will not fulfill its stewardship responsibilities (the presumed fact). Congress, therefore, should reassert its authority over the Evidence Code and appoint another committee outside the Judicial Conference of the United States (with its demonstrated bias for the status quo) to take up the task of bringing the Evidence Code into line with logic and practice.