Judicial Process


A Comprehensive Theory of Civil Settlement

J.J. Prescott, Kathryn E. Spier

A settlement is an agreement between parties to a dispute. In everyday parlance and in academic scholarship, settlement is juxtaposed with trial or some other method of dispute resolution in which a third-party factfinder ultimately picks a winner and announces a score. The “trial versus settlement” trope, however, represents a false choice; viewing settlement solely as a dispute-ending alternative to a costly trial leads to a narrow understanding of how dispute resolution should and often does work. In this Article, we describe and defend a much richer concept of settlement, amounting in effect to a continuum of possible agreements between litigants along many dimensions. “Fully” settling a case, of course, appears to completely resolve a dispute, and if parties to a dispute rely entirely on background default rules, a “naked” trial occurs. But in reality virtually every dispute is “partially” settled. The same forces that often lead parties to fully settle—joint value maximization, cost minimization, and risk reduction—will under certain conditions lead them to enter into many other forms of Pareto-improving agreements while continuing to actively litigate against one another. We identify three primary categories of these partial settlements: award-modification agreements, issue-modification agreements, and procedure-modification agreements. We provide real-world examples of each and rigorously link them to the underlying incentives facing litigants. Along the way, we use our analysis to characterize unknown or rarely observed partial settlement agreements that nevertheless seem theoretically attractive, and we allude to potential reasons for their scarcity within the context of our framework. Finally, we study partial settlements and how they interact with each other in real-world adjudication using new and unique data from New York’s Summary Jury Trial Program. Patterns in the data are consistent with parties using partial settlement terms both as substitutes and as complements for other terms, depending on the context, and suggest that entering into a partial settlement can reduce the attractiveness of full settlement. We conclude by briefly discussing the distinctive welfare implications of partial settlements.

Reliance by Whom? The False Promise of Societal Reliance on Stare Decisis Analysis

Alexander Lazaro Mills

Under the doctrine of stare decisis, an important factor in determining whether to uphold or overrule a constitutional precedent is whether there are reliance interests in the rule it established. The Supreme Court’s analysis of reliance in this context has been brief and conclusory, leaving indeterminate the precise nature of the reliance interests at stake and causing uncertainty as to which forms of reliance the Court will deem cognizable in the future. Beginning with Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court has signaled a willingness to give weight to societal reliance—reliance interests of society as a whole. Drawing on previous scholarship, I argue that societal reliance should be given no weight. To measure reliance for stare decisis, the Court should first identify the entities that have taken steps in reliance upon the challenged precedent and then weigh the costs of repudiation to those entities. When purported reliance interests cannot be attributed to particular entities but instead belong to society as a whole, no true reliance is at stake, and it should therefore count for nothing. Adopting this approach will provide clarity, consistency, and predictability to the Court’s determinations whether to uphold or overrule constitutional precedents.

Standing, Legal Injury Without Harm, and the Public/Private Divide

William S. C. Goldstein

Legal injury without harm is a common phenomenon in the law. Historically, legal injury without harm was actionable for at least nominal damages, and sometimes other remedies. The same is true today of many “traditional” private rights, for which standing is uncontroversial. Novel statutory claims, on the other hand, routinely face justiciability challenges: Defendants assert that plaintiffs’ purely legal injuries are not injuries “in fact,” as required to establish an Article III case or controversy. “Injury in fact” emerges from the historical requirement of “special damages” to enforce public rights, adapted to a modern procedural world. The distinction between public and private rights is unstable, however, with the result that many novel statutory harms are treated as “public,” and thus subject to exacting justiciability analysis, when they could easily be treated as “private” rights for which legal injury without harm is sufficient for standing. Public and private act as rough proxies for “novel” and “traditional,” with the former subject to more judicial skepticism. Applying “injury in fact” this way is hard to defend as a constitutional necessity, but might make sense prudentially, depending on the novelty and legal source of value for the harm. Taxonomizing these aspects of “harm” suggests that, even with unfamiliar harms, judicial discretion over value lessens the need for exacting injury analysis.

Retiring Forum Non Conveniens

Maggie Gardner

When it comes to transnational litigation in the federal courts, it is time to retire the doctrine of forum non conveniens. The doctrine, which allows judges to decline jurisdiction in cases they believe would be better heard in foreign courts, is meant to promote international comity and protect defendant fairness. But it was never well designed for the former purpose, and given recent developments at the Supreme Court, it is dangerously redundant when it comes to the latter. This Article seeks to demythologize forum non conveniens, to question its continuing relevance, and to encourage the courts and Congress to narrow its scope of application so that, when the time is right, it may be fully interred.

The Parity Principle

Luke P. Norris

The Supreme Court has interpreted the Federal Arbitration Act of 1925 (FAA) in a broad way that has allowed firms to widely privatize disputes with workers and consumers. The resulting expansive growth of American arbitration law has left commentators both concerned about the structural inequalities that permeate the regime and in search of an effective limiting principle. This Article develops such a limiting principle from the text and history of the FAA itself. The Article reinterprets the text and history of section 1 of the statute, which, correctly read, excludes individual employee-employer disputes from the statute’s coverage. The Article argues that section 1, though targeted at employees, is based on a parity principle that holds that the state has reason to regulate and limit the enforcement of arbitration agreements where deep economic power imbalances exist between the parties— that is, where relative parity is lacking. The parity principle underlying section 1 can best be understood through the lens of Progressive-Era thought at the time of the FAA’s enactment that focused on the regulatory responsibility of the state, through public adjudication and legislation subject to judicial interpretation, to publicly oversee the resolution of disputes and distribution of rights between parties of highly disparate economic power. This Article develops the logic and theory of the parity principle, and explores its implications for how courts should interpret the FAA and for legislative and administrative reforms targeted at workers and consumers.

The Bounded Independence of the American Courts

Keith E. Whittington

Response to Tara Leigh Grove, The Power of “So-Called Judges”, 93 N.Y.U. L. Rev. Online 14 (2018).

President Trump’s rhetoric has raised fears that the administration might defy a judicial order or take other steps to subvert the authority and independence of the judiciary. Trump’s rhetoric is, to be sure, worrisome. The authority of the American courts to adhere to the rule of law cannot be taken for granted. In moments of extreme conflict between the courts and elected officials, it might be expected that politicians will seek to curb the power of the courts to obstruct their political and policy goals. American courts can now boast hard-won bipartisan support for their authority. Courts can likely weather the storm in a conflict with the President if the broader range of political elites, including those within the Republican Party, continue to see that a powerful and independent judiciary is in their long-term political interest.

Internal Oversight and the Tenuous Protection of Norms

Shirin Sinnar

Response to Aziz Z. Huq, Democratic Erosion and the Courts: Comparative Perspectives, 93 N.Y.U. L. Rev. Online 21 (2018)

Oversight institutions within the executive branch can play an important role in checking executive power. But the independence and efficacy of these institutions depend on unwritten conventions that are now under threat.