The Dispute Threshold: How the Public Policy Rationale Fails to Guide the Application of Federal Rule of Evidence 408

Steve Y. Ma

  Introduction
Imagine that you contract with Joe’s Advertising Agency to provide marketing services.  In the middle of performing the contract, Joe presents you with a bill for the services rendered so far.  You and Joe dispute the manner in which the billing was supposed to be calculated under the contract.  To resolve this problem, you suggest that you and Joe modify the contract’s terms, and discussions of the specific terms follow.  Ultimately, the discussions fail, and Joe initiates litigation against you to collect on the bill.  During litigation, Joe wants to submit into evidence the contract-modification discussions, specifically correspondence in which you admit that you did not read the contract terms carefully.  You object to the admission of this evidence, stating that the discussions are protected as statements made during compromise negotiations under Rule 408 of the Federal Rules of Evidence.  It is unclear, however, whether the contract modification… Read More »

Demystifying Conceptual Severance: A Comparative Study of the United States, Canada, and the European Court of Human Rights

Angela Chang

The Last Temptation of Congress: Legislator Insider Trading and the Fiduciary Norm Against Corruption

Sung Hui Kim

On January 24, 2012, during his State of the Union address, President Barack Obama called for a new law banning insider trading by members of Congress (which I refer to as “legislator insider trading”).  Within weeks, both houses of Congress, after dragging their feet for years on similar proposals, overwhelmingly… Read More »

Accepting the Limits of Tax Law and Economics

Alex Raskolnikov

It is no secret that over the past four decades, the economic analysis of legal rules has transformed several areas of economic regulation and influenced many others.   Yet, efficiency maximization—the ultimate goal of law and economics—has had little impact on the content of the Internal Revenue Code.  A more robust… Read More »

The Social Production of Counterterrorism

Aziz Huq

From where is security against the risk of domestic terrorism elicited?  Our first instinct is often to turn to the State and its diverse apparatus of police, military, and intelligence agencies as the canonical supplier of protection against violent risk.  Yet some recent examples hint at a different dynamic:

In… Read More »

Criminalizing Normal Adolescent Development in Communities of Color

Kristin Henning

Over the last quarter century, psychological research has shown that much of youth crime and delinquency is the product of normal adolescent development.  Compared to adults, adolescents often make impetuous and ill-considered decisions, are susceptible to negative influences and outside pressures, and have a limited capacity to identify and weigh… Read More »

The Treaty Power: Its History, Scope, and Limits

Oona A. Hathaway

Next term, for the first time in nearly a century, the Supreme Court will consider the scope of federal government’s power to legislate pursuant to the Treaty Clause of Article II.  The case, Bond v. United States, arose from an unlikely series of events.  The defendant, Carol Anne Bond, discovered that… Read More »

Habeas Corpus and Due Process

Brandon Garrett -University of Virginia School of Law

Habeas corpus is a sleeping giant.  For almost two centuries, the Supreme Court largely avoided defining the Clause’s content whenever the opportunity to do so arose.  As in past emergencies and military engagements, the giant awakened when the executive began to detain suspected terrorists in multiple countries after September 11,… Read More »

Patent Holdup, the ITC, and the Public Interest

Colleen V. Chien & Mark A. Lemley

Patent-assertion entities (PAEs, also known as “patent trolls”) assert patents as a business model, traditionally using the threat of an injunction to reach a favorable settlement with the defendant.  That threat often results in patent holdup.  As Justice Anthony Kennedy articulated in his concurrence in eBay Inc. v. MercExchange, L.L.C.,… Read More »

Managerial Judging: The 9/11 Responders Tort Litigation

Alvin K. Hellerstein & James A. Henderson, Jr. & Aaron D. Twerski

After the tragic destruction of the Twin Towers on September 11, 2001 the nation faced the problem of providing compensation to the families of the victims who died as an immediate result of the attack.  Within days, Congress established a Victim’s Compensation Fund (VCF) that Kenneth R. Feinberg managed as… Read More »

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