The Right to a Jury Decision on Questions of Fact Under the Seventh Amendment

In a series of decisions over the last decade, the Supreme Court has reconsidered an aspect of the Seventh Amendment that has been long overlooked: the allocation of particular questions to the judge or the jury in a case where the right to a jury trial applies. Breaking with historical practice, the Court has emphasized considerations other than the fact-law distinction as a basis for identifying the questions that must go to the jury. Most prominently, in Markman v. Westview Instruments, Inc., the Court focused on \u27functional considerations in assigning a question of patent claim construction to the judge. In this Article, the author critiques the Court\u27s recent Seventh Amendment jurisprudence, arguing that the Seventh Amendment compels courts to assign questions of fact to the jury. The author then proposes a test for identifying questions of fact based on the types of inferences required to answer a particular question. Under this test, questions requiring inductive inferences about the transactions or occurrences in dispute are \u27fact questions, which must be decided by the jury in appropriate cases. All other questions may permissibly be answered by the judge. The author applies this test to the Court\u27s recent decisions to show how an inferential understanding of the fact-law distinction can help resolve the most difficult issues of decisional responsibility

Meaning, Intention, and the Hearsay Rule

In this Article, I draw on insights from the linguistic discipline of pragmatics to offer another way to understand and apply the definition of hearsay in the Federal Rules of Evidence. Pragmatics is concerned with how we use language in real-world contexts to accomplish various objectives.\u27 By identifying the conventions that govern language usage, pragmatics provides ways to analyze what a speaker means when he says something and how meaning is conveyed through language.5 Pragmatics thus has obvious utility for the study of hearsay. The philosopher Paul Grice looms over the field of pragmatics. His theory of conversational implicature revolutionized linguists\u27 understanding of how we communicate.6 It is Grice\u27s pragmatic theory of meaning, however, that has the greatest import for me. Meaning is an extraordinarily difficult concept. No single theory of meaning has been accepted for all purposes. I will argue, however, that the definition of hearsay in Federal Rule of Evidence 801 (Rule 801) requires an inquiry into what linguists call speaker\u27s meaning. I will then offer a formula for identifying hearsay based on Grice\u27s theory of speaker\u27s meaning. Finally, I will apply my approach both to basic situations and to a number of hearsay problem areas to demonstrate how it can facilitate the resolution of even the most intractable hearsay issues while effecting the rationale underlying the hearsay rule

“Whimsy Little Contracts” with Unexpected Consequences: An Empirical Analysis of Consumer Understanding of Arbitration Agreements

Arbitration clauses have become ubiquitous in consumer contracts. These arbitration clauses require consumers to waive the constitutional right to a civil jury, access to court, and, increasingly, the procedural remedy of class representation. Because those rights cannot be divested without consent, the validity of arbitration agreements rests on the premise of consent. Consumers who do not want to arbitrate or waive their class rights can simply decline to purchase the products or services covered by an arbitration agreement. But the premise of consent is undermined if consumers do not understand the effect on their procedural rights of clicking a box or accepting a product. This Article reports on an empirical study exploring the extent to which consumers are aware of and understand the effect of arbitration clauses in consumer contracts. We conducted an online survey of 668 consumers, approximately reflecting the population of adult Americans with respect to race/ethnicity, level of education, amount of family income, and age. Respondents were shown a typical credit card contract with an arbitration clause containing a class action waiver printed in bold and with portions in italics and ALLCAPS. Respondents were then asked questions about the sample contract as well as about a hypothetical contract containing what was described as a “properly-worded” arbitration clause. Finally, respondents were asked about their own experiences with actual consumer contracts. The survey results suggest a profound lack of understanding about the existence and effect of arbitration agreements among consumers. While 43% of the respondents recognized that the sample contract included an arbitration clause, 61% of those believed that consumers would, nevertheless, have a right to have a court decide a dispute too large for a small claims court. Less than 9% realized that the contract had both an arbitration clause and that it would prevent consumers from proceeding in court. With respect to the class waiver, four times as many respondents thought the contract did not block them from participating in a class action as realized that it did, even though the class action waiver was printed twice, in bold, in the sample contract, including one time in italics and ALLCAPS. Overall, of the more than 5000 answers we recorded to questions offering right and wrong answers, only a quarter were correct. Turning to respondents’ own lives, the survey asked if they had ever entered into contracts with arbitration clauses. Three hundred and three respondents claimed never to have done so. In fact, 264, or 87%, had at least one account subject to an arbitration clause. These and other findings reported in this Article should cause concern among judges and policymakers considering mandatory pre-dispute consumer arbitration agreements. Our results suggest that many citizens assume that they have a right to judicial process that they cannot lose as a result of their acquiescence in a form consumer contract. They believe that this right to judicial process will outweigh what one respondent referred to as a “whimsy little contract.” Our results suggest further that citizens are giving up these rights unknowingly, either because they do not realize they have entered into an arbitration agreement or because they do not understand the legal consequences of doing so. Given the degree of misunderstanding the results demonstrate, we question whether meaningful consent is possible in the consumer arbitration context

Section 1500 and the Jurisdictional Pitfalls of Federal Government Litigation

In recent years, both the Court of Appeals for the Federal Circuit and the United States Supreme Court have addressed the issue of when (28 U.S.C.) § 1500 bars a plaintiff from maintaining simultaneous suits in a district court and in the Court of Federal Claims. Unfortunately, these efforts have failed either to relax the requirements of § 1500 or to establish conclusively a rule of strict construction. This Article examines the current state of § 1500 in light of these attempts at reconstruction. Part I presents the basic jurisdictional reach of the Court of Federal Claims and of the district courts in suits against the United States and its instrumentalities. Part II analyzes § 1500 and its interpretations in light of recent case law. Part III discusses the problems inherent in current interpretations of § 1500 and suggests the most likely judicial responses. The Article concludes that, because a complete revision or repeal is unlikely, the best way to reduce the inequity and arbitrariness of § 1500 is to grant both district courts and the Court of Federal Claims limited pendent jurisdiction over suits against the government that are normally cognizable only in the other forum

The Right to a Jury Decision on Questions of Fact Under the Seventh Amendment

In a series of decisions over the last decade, the Supreme Court has reconsidered an aspect of the Seventh Amendment that has been long overlooked: the allocation of particular questions to the judge or the jury in a case where the right to a jury trial applies. Breaking with historical practice, the Court has emphasized considerations other than the fact-law distinction as a basis for identifying the questions that must go to the jury. Most prominently, in Markman v. Westview Instruments, Inc., the Court focused on \u27functional considerations in assigning a question of patent claim construction to the judge. In this Article, the author critiques the Court\u27s recent Seventh Amendment jurisprudence, arguing that the Seventh Amendment compels courts to assign questions of fact to the jury. The author then proposes a test for identifying questions of fact based on the types of inferences required to answer a particular question. Under this test, questions requiring inductive inferences about the transactions or occurrences in dispute are \u27fact questions, which must be decided by the jury in appropriate cases. All other questions may permissibly be answered by the judge. The author applies this test to the Court\u27s recent decisions to show how an inferential understanding of the fact-law distinction can help resolve the most difficult issues of decisional responsibility

Curtailing the Judicial Certification of Expert Witnesses

In his Article, Professor Kirgis argues that the familiar practice of judicial certification of expert witnesses lacks a foundation in law and common-sense. Professor Kirgis complements his argument with a discussion of several practical considerations that arise when a litigator elects to challenge the judicial qualification of an opponent\u27s expert witness

The Roberts Court VS. the Regulators: Surveying Arbitration\u27s Next Battleground

Over the past three decades, the Supreme Court has taken a series of steps having the design or effect of restricting access to judicial process. This “disadjudication” project has proceeded along three tracks: 1) with respect to its own docket, the Court has dramatically reduced the number of cases it decides each year; 2) in the criminal area, the Court has cut way back on access to the federal courts through habeas corpus; and 3) in the civil area, the Court has simultaneously erected barriers to litigation by heightening pleading standards and expanded the scope of arbitration to suck more and more claims out of courts at both the federal and state levels. For the Rehnquist Court, the disadjudication project at times seemed motivated primarily by a desire to clear judicial dockets. The Roberts Court appears to have a more ambitious agenda, particularly when it comes to arbitration. It has almost always sided with the Chamber of Commerce in business cases, and the Chamber wants its members to have control over the processes used to ensure that they comply with the law. The Court has enthusiastically complied. Through a string of decisions, most recently CompuCredit Corp. v. Greenwood, 131 S. Ct. 2874 (2011)(upholding arbitration of claims under Credit Repair Organizations Act) and AT&T Mobility v. Concepcion, 131 S. Ct. 1740 (2011)(upholding class waiver in arbitration agreement), the Court has encouraged companies to push their consumers and employees into arbitration, placing the enforcement of both federal and state laws in private hands and allowing companies to opt out of class actions entirely in many contexts

The Problem of the Expert Juror.

In this article, I argue that the new focus on the risks of spurious expertise compels attention to the problem of juror expertise. 24 Specialized knowledge poses the same risks to the truth-seeking objectives of trial whether it enters the decision-making process through expert testimony or through the back door of juror background knowledge. In fact, the risks to accuracy may be less when expertise is offered by a witness than when it is introduced by a juror, because the witness will be subject to cross-examination and rebuttal. Flawed expertise brought to the case by a juror is not subject to cross-examination or rebuttal, and in most cases is entirely hidden from view. It thus poses special risks in criminal cases-even beyond the threat to accuracy-because of criminal defendants\u27 constitutional rights to be confronted with and to confront the evidence against them