By Dennis J. Callahan, Jeffery M. Chiow, Lauren B. Kramer, & Oliya S. Zamaray | 63 Am. U. L. Rev. 1307 (2014)
In The Path of the Law, Oliver Wendell Holmes, Jr. described the legal profession as a study in prediction: people pay lawyers to argue and advise as to the circumstances under which courts will command the power of the state for or against the clients’ interests. For government contract lawyers, the U.S. Court of Appeals for the Federal Circuit has the final word (in cases prosecuted that far) in all but a vanishing number of the thousands of bid protests and claims presented each year to procuring agencies, the U.S. Government Accountability Office (GAO), the U.S. Court of Federal Claims, and other administrative and adjudicative bodies.
Perhaps the most striking aspect of the thirteen precedential Federal Circuit decisions discussed in this Article concerns the unpredictability, at the time of initial filing, of the journeys upon which these cases were embarking. A significant number of the tortuous and splintered histories of the cases discussed in this Article—as to forum, jurisdiction, and the merits—likely reflect the selection bias which predicts that the closest cases with the most uncertain outcomes are the ones most likely to be litigated to the fullest extent possible. Drawing from Holmes, through the application of the Federal Circuit’s most recent “prophecies of the past,” we may become more accurate handicappers and better advocates of our clients’ disputes, and thereby better advise when to say “Enough!” or “More!” in negotiations or as to contemplated additional legal process.
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