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

Disentangling Choice of Law for Torts and Contracts

In a federal system with state lines that are easily crossed, physically and electronically, legal disputes often raise choice-of-law issues. Common among those disputes are torts and contracts cases. The courts have taken a variety of approaches to these cases, leading to inconsistent results that depend largely on which forum the plaintiff selects. Judicial fairness and economy dictate, or should dictate, that the choice-of-law issues be resolvable consistently and without unnecessarily tying up the courts or imposing large litigation costs, if it can be done in a principled manner. This article shows how it could be done

Bargaining with Consequences: Leverage and Coercion in Negotiation

Leverage has been called “negotiation’s prime mover,” conferring power to reach agreement “on your terms.” This power, however, is not always benign. When a negotiator has sufficient power to compel a counterparty to accept a set of unfavorable terms, the use of leverage may cross a line into inappropriate or illegal coercion. While coercion has been the subject of rich philosophical investigation, the topic of coercive power has received only cursory treatment in the negotiation literature. This article seeks to fill that gap by analyzing the uses and limits of negotiating leverage, which I define as power rooted in consequences. I identify two types of leverage—positive and negative—and explore the legal and ethical implications of each type, drawing on the political theory of coercion as well as primary and secondary legal sources. I conclude by analyzing the contract doctrines of duress and unconscionability to show how an understanding of leverage can aid in the application of legal rules

Race, Rankings, and the Part-Time Free Pass

My primary objective in this article is to determine, at least tentatively, the extent to which law schools use the U.S. News free pass to promote diversity by way of their part-time programs. Secondarily, I hope to begin a dialog about whether this use of the free pass is a good thing, from the perspective of a proponent of greater minority representation in law schools. One view perhaps the one held by most people committed to greater law school access for minorities-is that virtually any strategy to increase minority enrollment would have merit. But use of the free pass to increase minority enrollment in part-time programs potentially imposes costs on the very students who are its intended beneficiaries. Law schools with disproportionate numbers of minorities in their part-time programs-whether because of a conscious strategy or because of other factors-should consider those costs carefully

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

Admission of Palestine as a Member of a Specialized Agency and Withholding Payment of Assessments in Response

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Understanding the Act of State Doctrine\u27s Effect

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Technological Challenge to Shared Environment: United States Practice

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