284
Souter, J., dissenting
"burden of going forward with the evidence," and not burden of persuasion. Northwestern Elec. Co. v. Federal Power Comm'n, 134 F. 2d 740, 743 (CA9 1943) (interpreting "burden of proof" in Federal Power Act, 16 U. S. C. § 825(a)), aff'd, 321 U. S. 119 (1944).
Contrary to the Court's understanding, commentators did not think the ambiguity of the phrase had disappeared before passage of the APA, and, at the time, some even thought it unsettled whether burden of persuasion or of going forward with the evidence was the primary meaning of the phrase. As one commentator (relied on by the majority here) explained in 1938, although in its "strict primary sense, 'burden of proof' signifies" burden of persuasion, "[i]n its secondary sense, the expression 'burden of proof' signifies the duty that rests upon a party of going forward with the evidence at any given stage of the case—although eminent authority holds that this is, or should be, its primary sense." 1 B. Jones, Law of Evidence in Civil Cases § 176, p. 310 (4th ed. 1938) (citing Thayer). He noted: "The expression 'burden of proof' has not a fixed and unvarying meaning and application. On the contrary, it is used, at times indiscriminately, to signify one or both of two distinct and separate ideas. Courts and commentators have striven to correct this variable usage and bring clarity and uniformity to the subject, but without noticeable success." Jones, supra, at 309 (footnote omitted). That commentary retained substantially the same description 20 years later, and thereafter, see 1 B. Jones, Law of Evidence, Civil and Criminal, § 204, pp. 361-363 (5th ed. 1958); 1 S. Gard, Jones on Evidence § 5:1, pp. 519-520 (6th ed. 1972). Other commentators noted the persistent confusion of the terms in the 1940's. See, e. g., W. Richardson, Law of Evidence § 172 (6th ed. 1944) (" '[B]urden of proof' is frequently misused by our courts"); J. Maguire, Evidence, Common Sense and Common Law 175 (1947) ("Under our law the term burden of proof has been used to express two rather different ideas, and as might be expected
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