Three things to be against ("settlement" not included)

Fordham Law Review

Volumn 78, Issue 3, 2009, Pages 1203-1245

  Moffitt, Michael ^a  

^a School of Law   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 75749086830     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (277)

1. Owen M. Fiss, Against Settlement, 93 YALE L. J. 1073 (1984).
2. I suspect that few readers of Against Settlement change their conclusions, in either direction, upon reading the article. Still, I am not suggesting that Fiss's title fully captures the complexity of the points he is making. People should read the actual article, regardless of their initial reactions.
3. I believe Carrie Menkel-Meadow coined this phrase in 1994. See Carrie Menkel-Meadow, Narrowing the Gap by Narrowing the Field: What's Missing from the MacCrate Report-Of Skills, Legal Science and Being a Human Being, 69 WASH. L. REV. 593, 606 n. 58 (1994). Although they may not self-identify as such, I might place scholars like David Luban, Laura Nader, and Stephen Yeazell in this category.
4. See, e.g., David Luban, Settlements and the Erosion of the Public Realm, 83 GEO. L. J. 2619 (1995) (arguing that settlement deprives the public of the litigation-driven articulation of public norms);
5. Laura Nader, Controlling Processes in the Practice of Law: Hierarchy and Pacification in the Movement To Re-Form Dispute Ideology, 9 OHIO ST. J. ON DISP. RESOL. 1 (1993) (arguing that settlement favors harmony over justice);
6. Stephen C. Yeazell, The Misunderstood Consequences of Modern Civil Process, 1994 WIS. L. REV. 631 (arguing that settlement erodes the justice system by decreasing appellate review opportunities).
7. Robert A. Baruch Bush self-identified some years ago as being part of the "mediation orthodoxy." I understand that to be essentially the same as the label I suggest. See Robert A. Baruch Bush, Mediation and Adjudication, Dispute Resolution and Ideology: An Imaginary Conversation, 3 J. CNTEMP LEGAL ISSUES 1, 7 (1989). Kenneth Cloke might fairly fall into this category as well.
8. See KENNETH CLOKE, CONFLICT REVOLUTION: MEDIATING EVIL, WAR, INJUSTICE AND TERRORISM-HOW MEDIATORS CAN HELP SAVE THE PLANET (2008). Some misread Carrie Menkel-Meadow as being an alternative dispute resolution (ADR) evangelist. She does strongly defend both the theory and practice of settlement.
9. See, e.g., Carrie Menkel-Meadow, Practicing "In the Interests of Justice" in the Twenty-First Century: Pursuing Peace as Justice, 70 FORDHAM L. REV. 1761, 1763 (2002) [hereinafter Menkel-Meadow, Practicing]. Menkel-Meadow's support for settlement, however, is more nuanced and conditional than some within the "settlement" community.
10. See, e.g., Carrie Menkel-Meadow, For and Against Settlement: Uses and Abuses of the Mandatory Settlement Conference, 33 UCLA L. REV. 485 (1985) [hereinafter Menkel-Meadow, For and Against Settlement];
11. Carrie Menkel-Meadow, When Litigation Is Not the Only Way: Consensus Building and Mediation as Public Interest Lawyering, 10 WASH. U. J. L. & POL'Y 37 (2002) [hereinafter Menkel-Meadow, When Litigation Is Not the Only Way];
12. Carrie Menkel-Meadow, Whose Dispute Is It Anyway?: A Philosophical and Democratic Defense of Settlement (In Some Cases), 83 GEO. L. J. 2663 (1995) [hereinafter Menkel-Meadow, Whose Dispute Is It Anyway?]. I agree with Baruch Bush, however, who characterizes her instead as a member of the "process pluralists."
13. Baruch Bush, supra at 7.
14. Many have made the point that litigation and settlement are independently praiseworthy, and praiseworthy in tandem. See, e.g., Jeffrey R. Seul, Litigation as a Dispute Resolution Alternative, in THE HANDBOOK OF DISPUTE RESOLUTION 336, 336-57 (Michael L. Moffitt & Robert C. Bordone eds., 2005);
15. see also Lon L. Fuller, Mediation-Its Forms and Functions, 44 S. CAL. L. REV. 305, 307 (1971) (arguing that we should "appraise the relative aptness, for solving a given problem, of the various competing forms of social ordering").
16. As I note in Part II, however, in practice, even when measured against these fundamental criteria, both litigation and settlement currently fall short of their promises and ideals.
17. In his article, Fiss described "adjudication" rather than "litigation" as the object of his praise. Fiss, supra note 1, at 1085. With developments in modern arbitration over the past two and a half decades, I suspect that Fiss would agree that "adjudication" is overly broad, as his focus appears to be rooted in an assumption that adjudication is a state function. Arbitration is undoubtedly adjudicatory, and is undoubtedly guilty of many of the sins Fiss ascribes to settlement, because of its private nature.
18. See infra Part II. C for more on arbitration's place in Fiss's analysis.
19. See also Lon L. Fuller, The Forms and Limits of Adjudication, 92 HARV. L. REV. 353, 353-54 (1978) (suggesting a broad range of public and private functions that qualify as "adjudication").
20. For examples of direct rejoinders to Fiss, see Baruch Bush, supra note 4;
21. Andrew W. McThenia & Thomas L. Shaffer, For Reconciliation, 94 YALE L. J. 1660 (1985);
22. Menkel-Meadow, Whose Dispute Is It Anyway?, supra note 4;
23. Jeffrey R. Seul, Settling Significant Cases, 79 WASH. L. REV. 881 (2004).
24. One could read Fiss's article as making a less sweeping condemnation of settlement and its relative merits, as compared with litigation. Doing so, I believe, attributes nuance to Fiss's argument that I do not believe is found in the text of Against Settlement. Against Settlement is a polemic. That the polemic could have been written differently does not change how it was actually written.
25. But see Amy Cohen, Revisiting Against Settlement: Some Reflections on Dispute Resolution and Public Values, 78 FORDHAM L. REV. 1143 (2009) (suggesting that Fiss's Against Settlement might be read as political, provisional, and contextual, rather than absolute).
26. Amy Cohen has demonstrated an intriguing alternative possibility-that one could read Against Settlement as neither really against settlement nor for adjudication, but rather as Against Neoliberalism.
27. See Cohen, supra note 9.
28. See, e.g., Marc Galanter, Worlds of Deals: Using Negotiation To Teach About Legal Process, 34 J. LEGAL EDUC. 268 (1984). This dichotomy also mistakenly implies that these are the only two processes available to disputants.
29. See Menkel-Meadow, Whose Dispute Is It Anyway?, supra note 4, at 2666.
30. Such requirements appear both at the pleadings stage and during discovery. See, e.g., D. CONN. LOCAL CIV. R. 16 (c) (1) ("A mandatory settlement conference will be held at or shortly after the close of discovery. Counsel have a duty to discuss the possibility of settlement during the planning conference required by Fed. R. Civ. P. 26 (f) and Local Rule 16 and may request that an early settlement conference be conducted before the parties undertake significant discovery or motion practice.");
31. S. C. R. CIV. P. 11 (a) ("All motions filed shall contain an affirmation that the movant's counsel prior to filing the motion has communicated, orally or in writing, with opposing counsel and has attempted in good faith to resolve the matter contained in the motion, unless the movant's counsel certifies that consultation would serve no useful purpose, or could not be timely held.").
32. See, e.g., FED. R. CIV. P. 16 (a) (5) ("In any action, the court may order the attorneys and any unrepresented parties to appear for one or more pretrial conferences for such purposes as... facilitating settlement.").
33. See, e.g., FED. R. CIV. P. 41 (a) (1) (A) (ii) (permitting voluntary dismissals upon "a stipulation of dismissal signed by all parties who have appeared").
34. See, e.g., FED. R. CIV. P. 60 (b) (5) (permitting relief from an order if "the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable").
35. See, e.g., FED. R. CIV. P. 23 (e) (court must approve of terms before a class action "may be settled, voluntarily dismissed, or compromised").
36. See, e.g., FED. R. EVID. 408 (excluding evidence of "conduct or statements made in compromise negotiations").
37. See, e.g., Robert B. Moberly & Laura E. Levine, The New Arkansas Appellate-Mediation Program, 61 ARK. L. REV. 429 (2008);
38. Ignazio J. Ruvolo, Appellate Mediation-"Settling" the Last Frontier of ADR, 42 SAN DIEGO L. REV. 177 (2005);
39. Kathleen M. Scanlon, A Case for Judicial Accountability: When Courts Add a Settlement Detour to the Traditional Appellate "Path", 17 OHIO ST. J. ON DISP. RESOL. 379 (2002).
40. Robert H. Mnookin & Lewis Kornhauser, Bargaining in the Shadow of the Law: The Case of Divorce, 88 YALE L. J. 950, 968 (1979).
41. See, e.g., ROBERT C ELLICKSON, ORDER WITHOUT LAW: HOW NEIGHBORS SETTLE DISPUTES 40-81 (1991) (showing, in an empirical study, that trespass and boundary disputes among farmers and ranchers are resolved without reference to legal entitlements);
42. Janet Cooper Alexander, Do the Merits Matter? A Study of Settlements in Securities Class Actions, 43 STAN. L. REV. 497 (1991) (showing, in an empirical study, that settlements in fraud cases bear no relationship to the legal merits of the underlying claims).
43. For a survey of the legal boundaries surrounding negotiators' misbehavior in bargaining, see MICHAEL L. MOFFITT & ANDREA KUPFER SCHNEIDER, DISPUTE RESOLUTION: EXAMPLES & EXPLANATIONS 19-49 (2008).
44. Of course, some negotiators "behave" because they are motivated by norms beyond rationalistic risk-benefit calculations. Many even may "behave" because they perceive selfinterested benefit as a result of doing so. See, e.g., Andrea Kupfer Schneider, Shattering Negotiation Myths: Empirical Evidence on the Effectiveness of Negotiation Style, 7 HARV. NEGOT. L. REV. 143 (2002). But at least some negotiators would likely engage in negotiations differently if there were no threat of legal repercussions.
45. See William M. Landes & Richard A. Posner, Adjudication as a Private Good, 8 J. LEGAL STUD. 235, 236 (1979) ("A court system (public or private) produces two types of service. One is dispute resolution-determining whether a rule has been violated. The other is rule formation-creating rules of law as a by-product of the dispute-settlement process.").
46. Luban, supra note 3, at 2642-46.
47. The only place I have seen evidence to the contrary has been with disputes of minor monetary value. In small claims court, on occasion, I did sometimes observe parties mutually acknowledge the unpredictability of the presiding magistrate and then proceed to settle. It is not clear to me that it was ambiguity in the law, as opposed to ambiguity in the likelihood that the law as written would be applied, that drove this behavior.
48. Some have suggested that our courts continue to lack complete enforcement abilities, and that this incomplete authority is a product of intentional constitutional design. See, e.g., GERALD N. ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE 21-22 (1991) (describing the "constrained" view of courts, in contrast to the "dynamic" view of courts embraced by many who view the courts as having been central to the civil rights reforms of the 1960s).
49. The precise mechanism for giving effect to the settlement's terms will depend on the nature of the case, of course. The aggrieved party may need to assert that the agreement, as a contract, was breached and should be enforced. Alternatively, in many circumstances, settlement agreements are entered as orders of the court, for example, as consent decrees, and can be more readily enforced as one would any noncompliance with a judicial order.
50. The parties could contemplate noncontractual, self-enforcing mechanisms that would not depend on courts' enforcement mechanisms. These could include everything from selfexecuting bonds to vigilantism. But the traditional means of settlement-private contract-does depend on courts.
51. In the most simplistic case, plaintiffs would rely on these mechanisms to assure enforcement of whatever agreement was reached in the settlement, and defendants would rely on the preclusion doctrines to protect against uncertain additional exposure on the same matter.
52. Parties could, of course, devise mechanisms for protecting themselves privately against the most egregious forms of bargaining misbehavior. They could post various forms of private bonds, take hostages, create reputational sanctions, and so on. But doing so would make the bargaining process considerably more costly than it is today, with no real corresponding benefit.
53. Fiss, supranote 1, at 1075.
54. Some, like Carrie Menkel-Meadow, have argued that settlement, "both by its increased use of publicity in important cases, and its ability to remove some cases from the system, might actually improve the quality of public discourse or lawmaking in the public realm, more broadly conceived of, than in traditional adjudication". Menkel-Meadow, Whose Dispute Is It Anyway?, supra note 4, at 2682.
55. Richard Posner has suggested two choices for courts facing an increasing demand for their services: increase fees or tolerate greater delays. See RICHARD A. POSNER, THE FEDERAL COURTS: CHALLENGE AND REFORM 124-34 (1996).
56. But see Diana Gribbon Motz, A Federal Judge's View of Richard A. Posner's The Federal Courts: Challenge and Reform, 73 NOTRE DAME L. REV. 1029, 1039 (1998) (book review) ("Although Judge Posner may be right that sharply increased filing fees would marginally decrease the federal caseload and increase the quality of judging, the message that such fees would send must also be considered. It is a message I find inconsistent with the principles upon which this country was founded and which should remain a hallmark of our system of justice.").
57. Some have expressed concern that we may be on this path already, even in the absence of Federal Rules of Civil Procedure (FRCP) amendments, with the recent Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal decisions.
58. See Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009);
59. Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955 (2007).
60. Shorter medical malpractice statutes of limitation were a component in "tort reform" legislation in virtually every state. See R. Patrick Bedell, The Next Frontier in Tort Reform: Promoting the Financial Solvency of Nursing Homes, 11 ELDER L. J. 361, 384 (2003).
61. Since the adoption of the FRCP in 1938, there have been periodic calls for discovery reforms. For a useful history, see Lisa J. Trembly, Mandatory Disclosure: A Historical Review of the Adoption of Rule 26 and an Examination of the Events That Have Transpired Since Its Adoption, 21 SETON HALL LEGIS. J. 425 (1997).
62. Some have even gone so far as to propose mandatory summary judgment. See Randy J. Kozel & David Rosenberg, Solving the Nuisance-Value Settlement Problem: Mandatory Summary Judgment, 90 VA. L. REV. 1849 (2004).
63. Revoking statutory exceptions to the American Rule would surely have the effect of decreasing litigation in certain areas. For examples of statutory exceptions, see 15 U. S. C. § 26 (2006) (antitrust); 42 U. S. C. § 2000e-5 (k) (2006) (civil rights).
64. See David Rosenberg & Steven Shavell, A Simple Proposal To Halve Litigation Costs, 91 VA. L. REV. 1721, 1721 (2005) (proposing that courts "select randomly for litigation only half the cases brought before them" but then award double damages in any cases that did proceed). I suspect that proposals such as these will do little to quell the persistent criticism that law professors spend too much of their time divorced from the real world.
65. We must remain vigilant, of course, that the "consent" imagined in the ideal forms of private resolution is, in fact, reflected in practice. In at least some contexts, there is reason for concern. See, e.g., Erica L. Fox, Alone in the Hallway: Challenges to Effective Self-Representation in Negotiation, 1 HARV. NEGOT. L. REV. 85 (1996);
66. Jacqueline Nolan-Haley, Mediation Exceptionality, 78 FORDHAM L. REV. 1247 (2009);
67. Nancy A. Welsh, The Thinning Vision of Self-Determination in Court-Connected Mediation: The Inevitable Price of Institutionalization?, 6 HARV. NEGOT. L. REV 1 (2001).
68. See, e.g., ROGER FISHER, WILLIAM URY & BRUCE PATTON, GETTING TO YES: NEGOTIATING AGREEMENT WITHOUT GIVING IN 70-77 (2d ed. 1991);
69. DAVID A. LAX & JAMES K. SEBENIUS, THE MANAGER AS NEGOTIATOR 88-116 (1986).
70. See Robert C. Bordone & Michael L. Moffitt, Create Value out of Conflict, NEGOTIATION, June 2006, at 3;
71. see also Fred Locklear, The Postal Service Delivers, and Now Rocks, ARS TECHNICA, NOV. 6, 2004, http://arstechnica.com/old/content/2004/11/4376.ars.
72. See Kenneth R. Kupchak et al., Arrow of Time: Vested Rights, Zoning Estoppel, and Development Agreements in Hawai'i, 27 U. HAW. L. REV. 17, 62-63 (2004) ("These tools can be an effective means of giving all parties that which they desire: return on investment for the owner; cash-free solutions for the politicians; and public benefits for the taxpayers.").
73. See Individuals with Disabilities Education Act Amendments of 1997, Pub. L. No. 105-17, 1997 U. S. C. C. A. N. (111 Stat.) 37 (codified as amended at 20 U. S. C. § 1415 (2006)).
74. See generally Nancy A. Welsh, Stepping Back Through the Looking Glass: Real Conversations with Real Disputants About Institutionalized Mediation and Its Value, 19 OHIO ST. J. ON DISP. RESOL. 573 (2004) (studying special education mediation participants). For an account of special education mediations in circumstances demanding extraordinary customization
75. see Paul M. Secunda, Mediating the Special Education Front Lines in Mississippi, 76 UMKC L. REV. 823 (2008) (special education needs of incarcerated children).
76. The text most commonly credited with popularizing this understanding is Roger Fisher, William Ury, and Bruce Patton's GETTING TO YES, supra note 41. Len Riskin has called this "the most important and useful idea in the field."
77. Leonard L. Riskin, Eleven Big Ideas About Conflict: A Superficial Guide for the Thoughtful Journalist, 2007 J. DISP. RESOL. 157, 161;
78. see also Menkel-Meadow, Whose Dispute Is It Anyway?, supra note 4, at 2672 (explaining that "settlement is not necessarily unprincipled compromise"). Parties to litigation have impliedly agreed to abide by the court's eventual decision. One could say that in so doing, they have impliedly placed their interests in social stability above whatever other interests they may have in the immediate dispute.
79. See Robert M. Ackerman, Disputing Together: Conflict Resolution and the Search for Community, 18 OHIO ST. J. ON DISP. RESOL. 27, 32 (2002) ("The disputants' willingness to submit their dispute to adjudication by a recognized tribunal is itself an affirmation of community, far more so than the self-help remedies of the blood feud, duel, or riot.");
80. Seul, supra note 8, at 900 ("The parties' choice among available means for addressing their dispute suggests they implicitly recognize that they, and the court before which they have brought their dispute, are participants in a larger social system that, overall, is worth maintaining and attempting to enhance. The disputants, like the rest of us, inhabit a social context in which many of their other cherished values are aligned, even though those that are the subject of their current dispute are not.");
81. Martin Shapiro, Compromise and Litigation, in COMPROMISE IN ETHICS, LAW, AND POLITICS 163, 168-69 (J. Roland Pennock & John W. Chapman eds., 1979).
82. Cognitive and social psychology, psychiatry, and psychotherapy have much to offer our understanding of disputants. And none of those disciplines suggests that perfect rationality is possible, much less the norm in the context of disputes. See, e.g., E. ALLAN LIND & TOM R. TYLER, THE SOCIAL PSYCHOLOGY OF PROCEDURAL JUSTICE (1988);
83. LEIGH L. THOMPSON, THE MIND AND HEART OF THE NEGOTIATOR (3d ed. 2008);
84. Max H. Bazerman & Katie Shonk, The Decision Perspective to Negotiation, in THE HANDBOOK OF DISPUTE RESOLUTION, supra note 5, at 52, 52-65;
85. Melissa L. Nelken, Negotiation and Psychoanalysis: If I'd Wanted To Learn About Feelings, I Wouldn't Have Gone to Law School, 46 J. LEGAL EDUC. 420 (1996);
86. Daniel Shapiro, Enemies, Allies, and Emotions: The Power of Positive Emotions in Negotiation, in THE HANDBOOK OF DISPUTE RESOLUTION, supra note 5, at 66, 66-82.
87. Carrie Menkel-Meadow correctly suggests that '"appropriate dispute resolution' allows parties to choose how they want their dispute resolved." Menkel-Meadow, Whose Dispute Is It Anyway?, supra note 4, at 2689-90;
88. see also Carrie Menkel-Meadow, And Now a Word About Secular Humanism, Spirituality, and the Practice of Justice and Conflict Resolution, 28 FORDHAM URB. L. J. 1073, 1083 (2001) ("ADR or conflict resolution practices acknowledge a greater human variability of action than do the ritualized or overly stylized forms of litigation practice. This allows values other than being 'right' to be imagined and enacted. Portia's plea for mercy or forgiveness, the granting of an apology and human acknowledgment of wrongfulness, if not legal fault or blame, all allow the fuller expression of a richer gamut of human actions, emotions, and feelings and we hope, a more humane set of responses." (footnotes omitted)).
89. This basic idea appears not only in literature principally focused on the law, but also in descriptions of democratic discourse and procedural justice. See, e.g., TOM R. TYLER & YUEN J. HUO, TRUST IN THE LAW: ENCOURAGING PUBLIC COOPERATION WITH THE POLICE AND COURTS 87 (2002) (presenting empirical support for the idea that "people focus more directly on whether they have an opportunity to present their arguments than they do on whether they think they are influencing the decisions made");
90. James Bohman, Complexity, Pluralism, and the Constitutional State: On Habermas's Faktizität und Geltung, 28 LAW & SOC'Y REV. 897, 917 (1994) (describing a deliberative democracy as one in which '"All members must be able to take part in discourse, even if not necessarily in the same way'" (quoting JURGEN HABERMAS, BETWEEN FACTS AND NORMS: CONTRIBUTIONS TO A DISCOURSE THEORY OF LAW AND DEMOCRACY 224 (William Rehg trans., MIT Press 1996) (1992))).
91. For a description of a nonlitigation approach to answering this question, see Robert Ricigliano et al., Problems Without a Process: Using an Action Dialogue To Manage Racial Tensions, 4 HARV. NEGOT. L. REV. 83 (1999) (describing the use of "action dialogue" to help a city and its communities address widespread racial tensions).
92. For an extensive treatment of consensus building dialogues, their inclusive nature, and the durable agreements they produce, see THE CONSENSUS BUILDING HANDBOOK: A COMPREHENSIVE GUIDE TO REACHING AGREEMENT (Lawrence Susskind, Sarah McKearnan and Jennifer Thomas-Larmer eds., 1999).
93. See, e.g., Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009);
94. Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955 (2007).
95. Michael Moffitt, Pleadings in the Age of Settlement, 80 IND. L. J. 727, 737 (2005).
96. Len Riskin and Nancy Welsh have, for example, noted the disconnect between pleading rules' relatively narrow problem-definition requirements and the broader problemdefinition that is often possible-and preferable. They even describe the active role some judges in the Netherlands take on with respect to problem-definition during the cadence of litigation. See Leonard L. Riskin & Nancy A. Welsh, Is That All There Is?: "The Proble". in Court-Oriented Mediation, 15 GEO. MASON L. REV. 863, 929-30 (2008) ("Dutch judges, who may meet with the parties and lawyers several times to investigate and attempt to resolve the case, are taught to ask, 'Will my decision solve your problem?'").
97. Michael L. Moffitt, Customized Litigation: The Case for Making Civil Procedure Negotiable, 75 GEO. WASH. L. REV. 461, 462 (2007) (quoting HENRY FORD, MY LIFE AND WORK 72 (1922));
98. see also Henry S. Noyes, If You (Re) Build It, They Will Come: Contracts To Remake the Rules of Litigation in Arbitration's Image, 30 HARV. J. L. & PUB. POL'Y 579 (2007);
99. Elizabeth Thornburg, Designer Trials, 2006 J. DISP. RESOL. 181.
100. There may be some contexts in which we would actually have a policy preference for power-however one defines that-to be relatively balanced, rather than tipping entirely one way or the other. For example, labor laws frequently have as a policy goal the preservation of industrial peace. This leads not only to the promotion of mediation and arbitration, but also to the idea of a reasonable balance of power as a precursor to collectively bargained contracts. In the context of election-related speech, as well, we might have concerns if one party had such a surplus of power, in the form of resources that translate to access to the public's ear, that it could effectively shut out other viewpoints. On this latter point, see Owen M. Fiss, Free Speech and Social Structure, 71 IOWA L. REV. 1405, 1411-12 (1986) ("The risk posed to freedom of speech by autonomy... occurs whenever speech takes place under conditions of scarcity, that is, whenever the opportunity for communication is limited."). I am grateful to my colleague Stuart Chinn for helping me to understand this aspect of Fiss's understanding of power balancing.
101. I celebrate, also, that my friend could enjoy those rights without having to incur the inevitable transaction costs associated with litigation- particularly because he would recover few of those costs even if he were successful with his claim.
102. This was, in large measure, Fiss's first response when I posed this question at the symposium from which this essay stems. Against Settlement presents a third possible response: that Fiss would decry the settlement between my friend and his employer because my friend got paternity leave without the public having been involved.
103. For a fascinating economic analysis of baseball teams' payroll efficiency, see Rich Lederer, MLB Payroll Efficiency, 2006-2008, BASEBALL ANALYSTS, Mar. 2, 2009, http://baseballanalysts.com/ archives/2009/03/20062008-payrol.php.
104. See also David Sweet, The 'Smart' Choice To Win the Series? Tampa, MSNBC. COM, Oct. 8, 2008, http://www.msnbc.msn.com/id/27089678 (reproducing the "cost-per-win index").
105. In Aristophanes's play, Lysistrata schemed with other women to withhold sex from their husbands as a means of compelling them to end the Peloponnesian War. ARISTOPHANES, LYSISTRATA 24-25 (Douglas Parker trans., New American Library 1964) (411 BC);
106. see also BBC News, Would You Withhold Sex To Get Your Way?, http://news.bbc.co.uk/2/hi/talking-point/8033695.srm (last visited Oct. 31, 2009).
107. Scott Hughes, Elizabeth's Story: Exploring Power Imbalances in Divorce Mediation, 8 GEO. J. LEGAL ETHICS 553, 574-75 (1995) (citing JOHN M. HAYNES, DIVORCE MEDIATION: A PRACTICE GUIDE FOR THERAPISTS AND COUNSELORS 49 (1981)).
108. Whether, as an empirical matter, judges live up to the commonly accepted ideal of impartiality is a different matter. Judicial recusal mechanisms present the most obvious safeguard against perceived or actual bias on the bench. See, e.g., Caperton v. A. T. Massey Coal Co., 129 S. Ct. 2252, 2257-67 (2009) (requiring a state supreme court justice to recuse himself from a case involving a party who had made $3 million in campaign contributions to the judge).
109. For a different theoretical view of the principle of judicial impartiality, see OFER RABAN, MODERN LEGAL THEORY AND JUDICIAL IMPARTIALITY 83 (2003) ("[S]ome legal questions must be answered by the use of preferences. Partiality... is sometimes unavoidable in perfectly valid legal determinations.").
110. See 28 U. S. C. § 1915 (2006).
111. This was Charles Clark's vision of how pleading rules would function when he drafted the FRCP. We know this from both his scholarly work and from opinions he authored once he became a judge. See, e.g., Dioguardi v. Durning, 139 F.2d 774, 775 (2d Cir. 1944) (calling a 12 (b) (6) motion "a mere formal motion");
112. Charles E. Clark, Simplified Pleading, 2 F. R. D. 456, 459 (1941) (suggesting that under the new pleading rules, "even a child could write a letter to the court telling of its case");
113. Moffitt, supra note 53, at 768. Cases like Twombly and Iqbal raise questions about whether Clark's vision remains in practice.
114. See, e.g., 15 U. S. C. § 26 (2006) (antitrust); 42 U. S. C. § 2000e-5 (k) (2006) (civil rights).
115. See, e.g., ELLEN E. SWARD, THE DECLINE OF THE CIVIL JURY 52-65 (2001);
116. Stephan Landsman, So What? Possible Implications of the Vanishing Trial Phenomenon, 1 J. EMPIRICAL LEGAL STUD. 973, 974 (2004) (expressing the de Tocqueville observation that juries are "political institution[s]", placing "the real direction of society in the hands of the governed", with juries as "the whole community's spokesman" (citing ALEXIS DE TOCQUEVILLE, 1 DEMOCRACY IN AMERICA 291 (Phillips Bradley ed., Alfred A. Knopf 1945) (1835))).
117. The structure of modern discovery rules rests on the idea that full disclosure of information leads to greater justice. See, e.g., United States v. Procter & Gamble Co., 356 U. S. 677, 682 (1958) (stating that discovery "make[s] a trial less a game of blind man's buff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent");
118. Alexander Holtzoff, The Elimination of Surprise in Federal Practice, 7 VAND. L. REV. 576, 577 (1954) ("[T]he purpose of litigation is not to conduct a contest or to oversee a game of skill, but to do justice as between the parties and to decide controversies on their merits."). These reforms have increased discovery's prominence, and the opportunities for its misuse.
119. See THOMAS E. WILLGING ET AL., FED. JUDICIAL CTR., DISCOVERY AND DISCLOSURE PRACTICE, PROBLEMS, AND PROPOSALS FOR CHANGE 15 (1997) (finding that discovery represented, on average, half of the total cost of litigation);
120. William W. Schwarzer, The Federal Rules, the Adversary Process, and Discovery Reform, 50 U. PITT. L. REV. 703, 703 (1989) ("Discovery, originally conceived as the servant of the litigants to assist them in reaching a just outcome, now tends to dominate the litigation and inflict disproportionate costs and burdens. Often it is conducted so aggressively and abusively that it frustrates the objectives of the Federal Rules.").
121. The Supreme Court's Twombly decision, Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955 (2007), has resulted in a fair amount of confusion within lower courts and within the academy. See, e.g., Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) ("We are not alone in finding the opinion confusing.");
122. Iqbal v. Hasty, 490 F.3d 143, 155-57 (2d Cir. 2007), rev'd, 129 S. Ct. 1937 (2009) (noting uncertainty in interpretation because of "conflicting signals");
123. Lee Goldman, Trouble for Private Enforcement of the Sherman Act: Twombly, Pleading Standards, and the Oligopoly Problem, 2008 BYU L. REV. 1057, 1058 ("The Court's discussion of general pleading standards also generated great confusion. "). By all accounts, however, it made it easier for at least some defendants to prevail on 12 (b) (6) motions.
124. See Arthur R. Miller, The Pretrial Rush to Judgment: Are the "Litigation Explosion", "Liability Crisis", and Efficiency Cliches Eroding Our Day in Court and Jury Trial Commitments?, 78 N. Y. U. L. REV. 982, 1016 (2003) ("Summary judgment... has moved to the center of the litigation stage as plaintiffs struggle to survive the motion in order to reach trial as defendants increasingly invoke it in an attempt to prevent them from doing so.").
125. Since 1980, federal funding for the Legal Services Corporation (LSC) has varied. Although LSC receives approximately the same number of actual dollars as it received in 1980, when inflation is factored in, its effective federal support is less than half of what it was in 1980. See ALAN W. HOUSEMAN & LINDA E. PERLE, CTR. FOR LAW & SOC. POLICY, SECURING EQUAL JUSTICE FOR ALL: A BRIEF HISTORY OF CIVIL LEGAL ASSISTANCE IN THE UNITED STATES 38-39 (2007), available at http://www.clasp.org/ publications/legal-aid-history-2007.pdf. Meanwhile, restrictions on its operations have proliferated.
126. See id. at 29-37.
127. RESTATEMENT (SECOND) OF CONTRACTS §§ 174-175 (1981).
128. Grace Giesel calls these contexts "the paradigm for almost every modern duress claim." Grace M. Giesel, A Realistic Proposal for the Contract Duress Doctrine, 107 W. VA. L. REV. 443, 445 (2005).
129. See Martin v. Joseph Harris Co., 767 F.2d 296, 301 (6th Cir. 1985) ("[R]elative bargaining power is an appropriate consideration in determining unconscionability...."); Kinney v. United HealthCare Servs., Inc., 83 Cal. Rptr. 2d 348, 353 (Ct. App. 1999) ("The oppression component [of unconscionability] arises from an inequality of bargaining power of the parties to the contract and an absence of real negotiation or a meaningful choice on the part of the weaker party." (citations omitted));
130. E. ALLAN FARNSWORTH, FARNSWORTH ON CONTRACTS 584 (4th ed. 2004).
131. Historically, the information asymmetries based on wealth were often profound, and we continue to see these disparities today in many contexts. Insurers still know more than their insured about trends, costs, and probabilities. Manufacturers still know more about their products than consumers. And so on. I wonder, though, whether the Internet and the ease with which information today flows will, at some point, dampen at least this aspect of resources' skewing effects.
132. It is not clear that we cure this problem by assuming away the pro se problem. Unless the market for attorneys' services is utterly dysfunctional, we probably should assume that some counsel are more competent than others and that those with greater resources have access to better representation.
133. For a helpful primer on the dynamics of agency in the context of settlement, see Scott R. Peppet, Six Principles for Using Negotiating Agents to Maximum Advantage, in THE HANDBOOK OF DISPUTE RESOLUTION, supra note 5, at 189, 189-201.
134. I adopt Erica Fox's phrase "alone in the hallway" from her article by that title. Fox, supra note 40, at 11.
135. Cf. Marc Galanter, Why the "Have". Come Out Ahead: Speculations on the Limits of Legal Change, 9 LAW & SOC'Y REV. 95 (1974) (suggesting that the basic structure of litigation is such that the "Haves" (wealthy, professional, repeat-players) will consistently enjoy more favorable norms, rules, institutions, and outcomes).
136. Fiss, supra note 1, at 1078.
137. To be clear, I am not just talking about clients who are disappointed that circumstances prevented their agents from achieving perfect outcomes. Instead, I am talking about clients who are disappointed because their agents made agreements on their behalf, when the client himself or herself, would not have agreed to such terms.
138. One ongoing gender discrimination class action involves even more parties than that. See Dukes v. Wal-Mart Stores, Inc., 222 F. R. D. 137, 144 (N. D. Cal. 2004) ("[B]oth parties estimate that the proposed class numbers over one million women. "). The certification in this case is under en banc review by the U. S. Court of Appeals for the Ninth Circuit.
139. See Rachel Tallon Pickens, Too Many Riches? Dukes v. Wal-Mart and the Efficacy of Monolithic Class Actions, 83 U. DET. MERCY L. REV. 71, 72 (2006).
140. Legal ethics standards require attorneys to "abide by a client's decisions concerning the objectives of representation", to "consult with the client as to the means by which they are to be pursued", and to "abide by a client's decision whether to settle [the] matter." MODEL RULES OF PROF'L CONDUCT 1.2 (a) (1999);
141. see also In re Brown, 453 P.2d 958 (Ariz. 1969) (en banc);
142. In re Ragland, 697 N. E.2d 44 (Ind. 1998) (per curiam).
143. SeeFED. R. CIV. P. 23 (a).
144. See FED. R. CIV. P. 23 (e);
145. see also 7B CHARLES ALAN WRIGHT, ARTHUR R. MILLER and MARY KAY KANE, FEDERAL PRACTICE & PROCEDURE § 1797.1 (3d ed. 1998) ("The main judicial concern [of FRCP 23 (e)] is that the rights of the passive class members not be jeopardized by the proposed settlement. The court also must be sensitive to the possibility of collusion between the parties actively participating in the action. ").
146. An attorney operating on a contingency basis often has a stronger incentive to settle more quickly, even if it is for less, than clients. An attorney operating on an hourly basis often has an incentive to overinvest hours in the representation, billing more hours than the expected return on those marginal hours of work might be justified in the client's view. An attorney operating on a flat-fee basis often has an incentive to underinvest hours in the representation, because he or she receives no additional compensation for marginal hours spent on the case. Fee arrangements skew settlement behaviors of both attorneys and their clients.
147. See Herbert M. Kritzer, Fee Arrangements and Negotiation, 21 LAW & SOC'Y REV. 341 (1987).
148. This is one of the principal criticisms of the Collaborative Law movement, because its disqualification agreements put parties in the position of having to replace existing attorneys with new attorneys-all of whom have to be educated about the nature of the lawsuit. See, e.g., Rebecca A. Koford, Conflicted Collaborating: The Ethics of Limited Representation in Collaborative Law, 21 GEO. J. LEGAL ETHICS 827, 838-40 (2008);
149. John Lande, The Movement Toward Early Case Handling in Courts and Private Dispute Resolution, 24 OHIO ST. J. ON DISP. RESOL. 81, 117-21 (2008).
150. See, e.g., J. Mark Cooney, Benching the Monday-Morning Quarterback: The "Attorney Judgment" Defense to Legal-Malpractice Claims, 52 WAYNE L. REV. 1051 (2006).
151. For a thoughtful and creative proposal regarding an approach to curbing abuses of the discovery process, see Charles Yablon, Stupid Lawyer Tricks: An Essay on Discovery Abuse, 96 COLUM. L. REV. 1618, 1620 (1996) ("One problem with current law is that many judges are reluctant to pull out the big strap of discovery sanctions except when convinced that the lawyers involved are so utterly recalcitrant that they deserve a serious whupping.... [A] major improvement in the moral education of litigators would be effected by increased sanctioning of smaller, more annoying discovery abuses with smaller, more annoying punishments.").
152. Seul, supra note 8, at 940.
153. Susan N. Herman, Double Jeopardy All Over Again: Dual Sovereignty, Rodney King, and the ACLU, 41 UCLA L. REV. 609, 611 (1994) (describing the ACLU's internal debates about the stance it would take on double jeopardy questions in the Rodney King police officer cases).
154. See 5 U. S. C. § 3106 (2006);
155. 28 U. S. C. §§ 516, 519 (2006).
156. See Michael Herz & Neal Devins, The Consequences of DOJ Control of Litigation on Agencies' Programs, 52 ADMIN. L. REV. 1345, 1359-71 (2000) (surveying some of the complications of the U. S. Department of Justice's role as singular representative of multiple agencies).
157. See MODEL RULES OF PROF'L CONDUCT R. 1.2 (a) cmt. 1 (1999).
158. I have a former student who spent considerable time studying and working with nursing homes and other care facilities on disputes involving patients nearing the ends of their lives. I find it difficult to read court systems' typical time-to-disposition statistics with her clients in mind.
159. We might intuitively understand the reputational concerns of a small-town doctor accused of malpractice. The reputational costs of litigation apply in larger contexts as well. See, e.g., WILLIAM D. BRADFORD, DISCRIMINATION, LEGAL COSTS AND REPUTATIONAL COSTS 25-27 (2005) (estimating that the reputational costs to publicly traded firms accused of gender or race discrimination by the U. S. Equal Employment Opportunity Commission or in other high-profile cases is more than forty times the estimated legal damages claimed in the litigation).
160. Being part of litigation is emotionally costly, as anyone who has spent sleepless nights with a litigation party-or even a litigation witness-will attest. In some circumstances, those emotional costs are necessary, and the litigation represents the prospect of the end of the emotional tolls associated with the underlying dispute. For others, however, it is easy to understand why they might judge the emotional costs of litigating too high, and therefore forego the litigation alternative.
161. Frank E. A. Sander, Varieties of Dispute Processing, 77 F. R. D. 111 (1976).
162. Although virtually universally attributed to him, Frank Sander did not coin this phrase during his presentation at the Pound Conference, nor does it appear in the text of the proceedings reprinted in the Federal Rules Decisions. Instead, the phrase appeared as a companion to a graphic on the cover of a magazine reporting on the Pound Conference.
163. See Michael L. Moffitt, Before the Big Bang: The Making of an ADR Pioneer, 22 NEGOTIATION J. 437, 437-38 (2006).
164. Owen Fiss considered the role of arbitration in at least one of his earlier works. Readers of Against Settlement would not be surprised to find that he categorized arbitration as private, and therefore, in his view, incapable of articulating or enforcing public norms. Such readers might be surprised, however, to read of Fiss's apparent embrace of arbitration for certain private disputes-an embrace that finds no articulation in Against Settlement, even though it was written only a few years after Fiss's foreword regarding The Forms of Justice.
165. See Owen M. Fiss, Foreword: The Forms of Justice, 93 HARV. L. REV. 1, 30 (1979) ("Of course, some disputes may not threaten or otherwise implicate a public value. All the disputants may, for example, acknowledge the norms and confine their dispute to the interpretation of the words of the contract or the price of a bumper. Such disputes may wind their way into court, and judges may spend time on these purely private disputes-private because only the interests and behavior of the immediate parties to the dispute are at issue. That seems, however, an extravagant use of public resources, and thus it seems quite appropriate for those disputes to be handled not by courts, but by arbitrators (though courts may have to act as background institutions enforcing or maybe even creating obligations to arbitrate). Arbitration is like adjudication in that it too seeks the right, the just, the true judgment. There is, however, an important difference in the two processes arising from the nature of the decisional agency-one private, the other public." (citing MARTIN P. GOLDING, PHILOSOPHY OF LAW 106-25 (1975);
166. Melvin Aron Eisenberg, Private Ordering Through Negotiation: Dispute-Settlement and Rulemaking, 89 HARV. L. REV. 637 (1976);
167. William M. Landes & Richard A. Posner, Adjudication as a Private Good, 8 J. LEGAL STUD. 235 (1979))).
168. Arbitration has a long history of application in commercial contexts, particularly those with international components. See, e.g., William Catron Jones, Three Centuries of Commercial Arbitration in New York: A Brief Survey, 1956 WASH. U. L. Q. 193;
169. Soia Mentschikoff, Commercial Arbitration, 61 COLUM. L. REV. 846 (1961). Labor arbitration, with its strong foundation in the Labor Management Relations Act of 1947, has enjoyed consistent support from the Supreme Court since at least the 1950s. See, e.g., United Steelworkers of Am. v. Am. Mfg. Co., 363 U. S. 564 (1960);
170. United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U. S. 574 (1960);
171. United Steelworkers of Am. v. Enter. Wheel & Car Corp., 363 U. S. 593 (1960);
172. Textile Workers Union of Am. v. Lincoln Mills of Ala., 353 U. S. 448 (1957).
173. For example, securities disputes under the Securities Act of 1933, ch. 38, 48 Stat. 74 (codified as amended at 15 U. S. C. §§ 77a-77aa (2006)), or the Securities Exchange Act of 1934, ch. 404, 48 Stat. 881 (codified as amended at 15 U. S. C. §§ 78a-78nn (2006)), were deemed inarbitrable until 1989.
174. Compare Wilko v. Swan, 346 U. S. 427 (1953) (holding that the Federal Arbitration Act (FAA) is inapplicable to securities claims)
175. with Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U. S. 477 (1989) (overturning Wilko v. Swan).
176. See, e.g., Gilmer v. Interstate/Johnson Lane Corp., 500 U. S. 20 (1991) (upholding arbitration clauses even in cases alleging unlawful employment discrimination under federal statutes);
177. Sarah Rudolph Cole & Kristen M. Blankley, Arbitration, in THE HANDBOOK OF DISPUTE RESOLUTION, supra note 5, at 318, 321;
178. Jane Spencer, Signing Away Your Right To Sue, WALL ST. J., Oct. 1, 2003, at Dl (suggesting that consumers must often "forget about joining a gym, getting a cellphone or even seeing [their] doctor" unless they agree to arbitrate).
179. See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U. S. 614, 626 (1985) (extending "generous[] constru[al] as to issues of arbitrability" beyond labormanagement agreements);
180. Warrior & Gulf Navigation Co., 363 U. S. at 583 (stating that "[d]oubts should be resolved in favor of [arbitral] coverage" in the context of labor agreements).
181. Federal Arbitration Act of 1925, ch. 213, 43 Stat. 883 (codified as amended at 9 U. S. C. §§ 1-16 (2006)).
182. See, e.g., Doctor's Assocs., Inc. v. Casarotto, 517 U. S. 681 (1996) (holding that the FAA preempts Montana state law requiring arbitration clauses to appear in a particular format);
183. Southland Corp. v. Keating, 465 U. S. 1 (1984) (holding that the FAA preempts a California statute disallowing arbitration in franchise agreements).
184. For an articulation of the view that the FAA should not be given effect in state court, see Justice Thomas's dissent in Allied-Bruce Terminix Cos. v. Dobson, 513 U. S. 265, 285 (1995) (Thomas, J., dissenting).
185. See Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U. S. 1, 24-25 (1983) ("The [Federal] Arbitration Act establishes that, as a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration");
186. Warrior & Gulf Navigation Co., 363 U. S. at 582-83.
187. See Dean Witter Reynolds Inc. v. Byrd, 470 U. S. 213 (1985);
188. Moses H. Cone Mem'l Hosp., 460 U. S. 1.
189. See Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U. S. 395, 402-04 (1967) (declaring arbitration clauses "separable" such that an arbitrator decides enforceability questions, unless the challenge is specifically directed only at the enforceability of the arbitration clause itself).
190. See Hall St. Assocs. v. Mattel, Inc., 128 S. Ct. 1396 (2008).
191. Dominican Priest Father Dominic Holtz has said, of humans, "We are 1000 watt lamps, with 40 watt bulbs." Letter from Sheila Heen to author (May 20, 2009) (quoting Father Holtz, Seminar: Dialogue on Truth, Aquinas Institute, St. Louis, Missouri (Feb. 27, 2009)) (on file with author).
192. Menkel-Meadow, Whose Dispute Is It Anyway?, supra note 4, at 2689.
193. See, e.g., Daisy Hurst Floyd, Can the Judge Do That?-The Need for a Clearer Judicial Role in Settlement, 26 ARIZ. ST. L. J. 45 (1994);
194. Menkel-Meadow, For and Against Settlement, supra note 4, at 509-11;
195. Todd D. Peterson, Restoring Structural Checks on Judicial Power in the Era of Managerial Judging, 29 U. C. DAVIS L. REV. 41 (1995);
196. Lawrence F. Schiller & James A. Wall, Jr., Judicial Settlement Techniques, 5 AM. J. TRIAL ADVOC. 39, 43 (1981) ("It should also be borne in mind that forced or coerced settlements, imparted by the judge, are encountered occasionally.");
197. John C. Cratsley, Judicial Ethics and Judicial Settlement Practices, DISP. RESOL. MAG., Summer 2006, at 16, 17 (reporting "complaints of judicial coercion and intimidation in settlement conferences").
198. Nolan-Haley, supra note 40;
199. see also Jacqueline M. Nolan-Haley, Informed Consent in Mediation: A Guiding Principle for Truly Educated Decisionmaking, 74 NOTRE DAME L. REV. 775 (1999);
200. Jacqueline M. Nolan-Haley, Consent in Mediation, DISP. RESOL. MAG., Winter 2008, at 4, 4-5.
201. Welsh, supra note 40, at 3-4 (footnotes omitted);
202. see also Nancy A. Welsh, Making Deals in Court-Connected Mediation: What's Justice Got To Do with It?, 79 WASH. U. L. Q. 787 (2001).
203. James J. Alfini, Trashing, Bashing, and Hashing It Out: Is This the End of "Good Mediation", 19 FLA. ST. U. L. REV. 47, 47 (1991) (quoting Albie Davis from a 1988 ADR workshop in Tallahassee, Florida).
204. Orley Ashenfelter & David Bloom, Lawyers as Agents of the Devil in a Prisoner's Dilemma Game 21 (Nat'l Bureau of Econ. Research, Working Paper No. 4447, 1993) (concluding, after studying employment and family claims that "the data all imply that it is individually rational for the parties to retain costly agents so as to increase the likelihood that they will prevail, even though there is little evidence that the result will be any different from what would occur if both parties did not retain agents").
205. For a thoughtful treatment of these community-enabling aspects of settlement, see Clark Freshman, Privatizing Same-Sex "Marriage" Through Alternative Dispute Resolution: Community-Enhancing Versus Community-Enabling Mediation, 44 UCLA L. REV. 1687, 1762 (1997) ("A community-enabling mediation would encourage parties to consider the range of possible values and practices that could affect how they resolve a dispute or structure an agreement. This would include active consideration of the ways that others, including communities that the parties find valuable, have resolved similar disputes or reached similar agreements." (footnotes omitted)).
206. McThenia & Shaffer, supra note 8, at 1664 ("The soundest and deepest part of the ADR movement... rests on values-of religion, community, and work place-that are more vigorous than Fiss thinks.");
207. Susan Sturm & Howard Gadlin, Conflict Resolution and Systemic Change, 2007 J. DISP. RESOL. 1, 52 (arguing that public values are routinely "developed outside the formal organs of the state" and that settlement can "institutionalize a mechanism for this kind of normative development").
208. See Seul, supra note 8, at 942 ("When we litigate conflicts, we undertake our most difficult conversations in a way that is overly mediated-mediated, that is, through the impersonal strictures of the judicial process, where our primary conversation partner is the Court-rather than having these conversations directly with other affected parties... through a facilitated, non-binding negotiation process. As a result, we practice a weaker form of democracy than we otherwise could.").
209. Many suits are brought by plaintiffs who were genuinely injured and who seek only appropriate compensation from those they believe to be responsible for their injuries. Some plaintiffs bring strike suits, nuisance suits, and others merely because they perceive a tactical advantage or opportunity to extract settlement value from scared defendants. ompareKozel and Rosenberg, supra note 37, at 1850 n. 1 ("The problem of litigation aimed at obtaining a nuisance-value settlement has long concerned legal policy makers and analysts, though seemingly never more so than in recent years.")
210. with Lance P. McMillian, The Nuisance Settlement "Problem": The Elusive Truth and a Clarifying Proposal, 31 AM. J. TRIAL ADVOC. 221, 279 (2008) ("Nuisance litigation is frequently complained about, yet seldom proved. The perception of a crisis outpaces any documented reality."). Many litigants engage in discovery exactly as it is intended-a self-regulated exchange of relevant information, with no need for judicial involvement. Some litigants engage in discovery abuse, demanding information for the sole purpose of harassing or driving up litigation costs for the other side.
211. See James S. Kakalik et al., Discovery Management: Further Analysis of the Civil Justice Reform Act Evaluation Data, 39 B. C. L. REV. 613, 682 (1998).
212. One of the court mediation programs I used to supervise in the 1990s was a source of cases and disputants for television's Judge Judy. As anyone who has spent years mediating small claims cases will attest, courtroom television producers are unlikely to run out of material any time soon.
213. See, e.g., Stephen Daniels & Joanne Martin, The Texas Two-Step: Evidence on the Link Between Damage Caps and Access to the Civil Justice System, 55 DEPAUL L. REV. 635, 646 (2006) (reporting on a study finding that in medical malpractice claims, pro se plaintiffs succeeded in less than two percent of cases, while plaintiffs represented by counsel succeeded in more than one third of the cases).
214. See Andrew Brack & Andrew Canter, Note, Supply, Demand, and the Changing Economics of Large Law Firms, 60 STAN. L. REV. 2087, 2110 (2008) ("[S]ome types of technical legal work may require such intense specialization that only a handful of lawyers in a particular practice area or geographical region can provide adequate services.").
215. I can easily imagine why people might opt for the mysterious or even mystical in many realms of their lives. But I thought that the abolition of trials by ordeal signaled a rejection of the idea that one ought to trust the fates, the Divine, or other unknowns to dispense justice in the kinds of disputes likely to appear in court.
216. The judge for whom I had the privilege of clerking is a woman I hold in the highest possible professional and personal regard. My anecdotal conversations with other former judicial clerks have confirmed my assumption that my experience was not anomalous. I am not surprised that judicial clerks-those who spend perhaps the most direct time with judges, observing their decision making in practice-often wind up saying the same of the judges for whom they worked.
217. See, e.g., Ian Urbina & Sean D. Hamill, Judges Plead Guilty in Scheme To Jail Youths for Profit, N. Y. TIMES, Feb. 13, 2009, at A22 (reporting on two state court judges who recently pled guilty to taking millions of dollars in kickbacks to send teenagers to privately run detention centers).
218. See 28 U. S. C. § 455 (2006). Judges can also be required to step down from a case for extrajudicial behavior that casts doubt on judicial impartiality. See, e.g., United States v. Microsoft Corp., 253 F.3d 34, 110 (D. C. Cir. 2001) (removing the district court judge presiding over the Microsoft antitrust litigation, in part for having compared Bill Gates with Napoleon during interviews with a journalist while the case was still pending).
219. SeeCharles Gardner Geyh, Publicly Financed Judicial Elections: An Overview, 34 LOY. L. A. L. REV. 1467, 1468-71 (2001);
220. Charles Gardner Geyh, Why Judicial Elections Stink, 64 OHIO ST. L. J. 43 (2003).
221. See, e.g., DENISE A. CARDMAN, ABA, BACKGROUND INFORMATION ON THE NEED FOR FEDERAL JUDICIAL PAY REFORM 1 (2007);
222. JOHN G. ROBERTS, JR., 2006 YEAR-END REPORT ON THE FEDERAL JUDICIARY (2007) (discussing only the issue of judicial pay and concluding that "[t]he dramatic erosion of judicial compensation will inevitably result in a decline in the quality of persons willing to accept a lifetime appointment as a federal judge");
223. Letter from Robert D. Evans, ABA Governmental Affairs Dir., to every member of the U. S. House of Representatives (Dec. 8, 2006), available at http://www.abanet.org/poladv/letters/judiciary/2006dec08-colahjr102h-1.pdf ("Judicial salaries already are so inadequate that they threaten the vitality of the judiciary...."). This phenomenon and these concerns are not limited to the federal bench.
224. See, e.g., OR. JUDICIAL DEP'T, THE CHIEF JUSTICE'S 2008 REPORT ON JUDICIAL COMPENSATION (2008).
225. Justice Alito, for example, raised concerns about the practice of judges retiring to join private arbitration firms, "where they have the potential to earn the equivalent of the district judge salary in a matter of months." Oversight Hearing on "Federal Judicial Compensatio". Before the Subcomm. on the Courts, the Internet and Intellectual Property of the H. Comm. on the Judiciary, 110th Cong. 19 (2007) (testimony of Samuel Alito, Associate J., Supreme Court of the United States).
226. The best and most extensive literature on this topic of which I am aware comes from Chris Guthrie. See, e.g., Chris Guthrie et al., Blinking on the Bench: How Judges Decide Cases, 93 CORNELL L. REV. 1 (2008);
227. Chris Guthrie, Misjudging, 7 NEV. L. J. 420 (2007);
228. Jeffrey J. Rachlinski, Chris Guthrie & Andrew J. Wistkch, Heuristics and Biases in Bankruptcy Judges, 163 J. INSTITUTIONAL & THEORETICAL ECON. 167 (2007);
229. Andrew J. Wistkch, Chris Guthrie & Jeffrey J. Rachlinski, Can Judges Ignore Inadmissible Information? The Difficulty of Deliberately Disregarding 153 U. PA. L. REV. 1251 (2005).
230. The ADR movement was not, of course, "born" during the Pound Conference. For more on the antecedents of the figure most prominently associated with ADR's "birth", see Moffitt, supra note 98, at 437.
231. See Warren E. Burger, Isn't There a Better Way?, 68 A. B. A. J. 274 (1982).
232. In 1976 the number of community mediation centers was estimated at ten. By 1986, that number had risen to approximately one hundred. Ten years later, the number was approximately 550. Larry Ray, Community Mediation Centers: Delivering First-Class Services to Low-Income People for the Past Twenty Years, 15 MEDIATION Q. 71, 73 (1997).
233. See, e.g., Steven H. Goldberg, "Wait a Minute. This Is Where I Came In". A Trial Lawyer's Search for Alternative Dispute Resolution, 1997 BYU L. REV. 653, 658 (describing the migration of the ADR movement from nonlawyers to lawyers "seeking kinder processes, empowerment of disputants, and better, longer-lasting relationships between disputants"); Stuart Taylor Jr., Justice System Stifled by Its Costs and Its Complexity, Experts Warn, N. Y. TIMES, June 1, 1983, at A1 (quoting Chief Justice Warren E. Burger as contrasting ADR with the "almost irrational focus-virtually a mania-on litigation as a way to solve all problems").
234. I confess that I cannot find support for the last of these assertions, but I stand by its basic sentiment.
235. Order Amending the Federal Rules of Civil Procedure, 461 U. S. 1097 (1983).
236. See supra note 111 and accompanying text.
237. See Fiss, supra note 1, at 1074. Scholars disagree about the ongoing effects of Rule 68 in its current form. Most agree that it is virtually never employed, but it still may have effects on cases in which the plaintiff may be statutorily entitled to attorney fees.
238. See, e.g., Marek v. Chesny, 473 U. S. 1 (1985);
239. Harold S. Lewis, Jr. & Thomas A. Eaton, Rule 68 Offers of Judgment: The Practices and Opinions of Experienced Civil Rights and Employment Discrimination Attorneys, 241 F. R. D. 332 (2007);
240. Cynthia L. Street, Rule 68: Erie Go Again-Costs, Attorneys' Fees, and Plaintiffs' Offers-Substance or Procedure?, 20 MISS. C. L. REV. 341, 345 (2000);
241. Albert Yoon & Tom Baker, Offer-of-Judgment Rules and Civil Litigation: An Empirical Study of Automobile Insurance Litigation in the East, 59 VAND. L. REV. 155 (2006). For the interesting suggestion that Rule 68 was never intended to encourage settlement
242. see Robert G. Bone, "To Encourage Settlement": Rule 68, Offers of Judgment, and the History of the Federal Rules of Civil Procedure, 102 NW. U. L. REV. 1561, 1562 (2008) (suggesting instead that Rule 68 was "designed to prevent plaintiffs from imposing costs unfairly when the defendant offered what the plaintiff was entitled to receive from trial, and to enable defendants to avoid paying those costs when the plaintiff persisted with the suit").
243. For an outstanding treatment of these aspects of settlement's potential, see Seul, supra note 8.
244. See also Carrie Menkel-Meadow, Whose Dispute Is It Anyway?, supra note 4, at 2669-70.
245. For example, each of the three Harvard professors most closely associated with ADR in recent decades has made explicit the process pluralistic idea that settlement is one among many possible processes. See, e.g., Roger Fisher & William Jackson, Acquiring the Tools of ADR: Two Views, Teaching the Skills of Settlement, 46 SMU L. REV. 1985 (1993);
246. Robert H. Mnookin, When Not To Negotiate: A Negotiation Imperialist Reflects on Appropriate Limits, 74 U. COLO. L. REV. 1077 (2003);
247. Frank E. A. Sander & Stephen B. Goldberg, Fitting the Forum to the Fuss: A User-Friendly Guide To Selecting an ADR Procedure, 10 NEGOTIATION J. 49 (1994).
248. In some cases, of course, the avenue to justice does not run through the courthouse, or at least does not initiate there. Legislative initiatives, popular ballots and referenda, executive decisions, and administrative decisions can all lead to the expansion-or erosion-of rights, as we have seen in recent years on the question of gay marriage.
249. See Moffitt, supra note 55 (describing the limited contexts in which litigants have the opportunity to customize their litigation experiences).
250. See Binny Miller, Give Them Back Their Lives: Recognizing Client Narrative in Case Theory, 93 MICH. L. REV. 485 (1995) (exploring the role of narratives and emotions in litigators' case theories);
251. Richard A. Nagareda, The Preexistence Principle and the Structure of the Class Action, 103 COLUM. L. REV. 149, 151 (2003) (singling out class actions as exceptional because they are processes "not ultimately for adversarial litigation but for dealmaking on a mass basis").
252. See generally OWEN FISS, THE LAW AS IT COULD BE (2003). Fiss's essays sometimes describe law as it once was, with the days of Brown v. Board of Education as the moment he names as the judiciary's zenith. The essays sometimes describe law as it has not (yet?) been. In either case, his essays are aspirational when read today.
253. See, e.g., ROBERT A. BARUCH BUSH & JOSEPH P. FOLGER, THE PROMISE OF MEDIATION: RESPONDING TO CONFLICT THROUGH EMPOWERMENT AND RECOGNITION 24 (1994) (suggesting that transformative mediation would lead to "change or refinement in the consciousness and character of individual human beings... connot[ing] individual moral development");
254. Christine B. Harrington & Sally Engle Merry, Ideological Production: The Making of Community Mediation, 22 LAW & SOC'Y REV. 709, 710 (1988) (describing "three analytically distinguishable projects within community mediation: the delivery of dispute resolution services, social transformation, and personal growth", with clear links between community justice and consensual justice);
255. Carrie Menkel-Meadow, The Many Ways of Mediation: The Transformation of Traditions, Ideologies, Paradigms, and Practices, 11 NEGOTIATION J. 217, 236 (1995) (stating that mediation can lead to the "creation of more human compassion, understanding, and moral decision making").
256. Fiss, supra note 1, at 1073.
257. Id. Despite my recent service as Chair of the Association of American Law Schools (AALS) Section on Dispute Resolution, I can report that the section continues to thrive today.
258. Ray, supra note 135, at 73.
259. Getting to Yeswas originally published in 1981, and it is now in its second edition. FISHER, URY & PATTON, supra note 41. As of 2005, it had sold more than five million copies worldwide and has been translated into more than thirty languages. See Letter from Bruce Patton to author (May 24, 2009) (on file with author).
260. HOWARD RAIFFA, THE ART AND SCIENCE OF NEGOTIATION: BARGAINING FOR COOPERATION AND COMPETITIVE GAIN (1982). Integrative bargaining soon saw even greater inroads among business audiences with the publication of The Manager as Negotiator, LAX and SEBENIUS, supra note 41.
261. See Carrie Menkel-Meadow, Toward Another View of Legal Negotiation: The Structure of Problem Solving, 31 UCLA L. REV. 754 (1984).
262. See Robert E. Mathews, Negotiation: A Pedagogical Challenge, 6 J. LEGAL EDUC. 93 (1954);
263. Carrie Menkel-Meadow, Legal Negotiation: A Study of Strategies in Search of a Theory, 4 AM. B. FOUND. RES. J. 905, 908 (1983);
264. James J. White, The Lawyer as a Negotiator: An Adventure in Understanding and Teaching the Art of Negotiation, 19 J. LEGAL EDUC. 337, 337-38 (1967).
265. See Michael Moffitt, Lights, Camera, Begin Final Exam: Testing What We Teach in Negotiation Courses, 54 J. LEGAL EDUC. 91 (2004).
266. Examples of such programs can be found at the University of Oregon, the University of Missouri-Columbia, Pepperdine University, Creighton University, and Marquette University.
267. See generally ABA SECTION OF LEGAL EDUC. & ADMISSIONS TO THE BAR, AN EDUCATIONAL CONTINUUM-REPORT OF THE TASK FORCE ON LAW SCHOOLS AND THE PROFESSION: NARROWING THE GAP (1992).
268. WILLIAM M. SULLIVAN ET AL., CARNEGIE FOUND, FOR THE ADVANCEMENT OF TEACHING, EDUCATING LAWYERS: PREPARATION FOR THE PROFESSION OF LAW 7 (2007), available at http://www. camegiefoundation.org/sites/default/files/publications/elibrary-pdf-632.pdf. The report specifically highlights teaching negotiation in law schools.
269. See id. at 111-14.
270. Derek C. Bok, A Flawed System of Law Practice and Training, 33 J. LEGAL EDUC. 570, 582-83 (1983);
271. Robert S. Summers, FULLER ON LEGAL EDUCATION, 34 J. LEGAL EDUC. 8, 11-14 (1984).
272. The 2006-2007 AALS Directory of Law Teachers lists 569 law faculty who selfidentify as teaching dispute resolution. ASS'N OF AM. LAW SCHS., THE AALS DIRECTORY OF LAW TEACHERS 1176-81 (2006).
273. Michael Moffitt, Islands, Vitamins, Salt, Germs: Four Visions of the Future of ADR in Law Schools, 25 OHIO ST. J. ON DISP. RESOL. (forthcoming Dec. 2009) (listing AALS ADR membership in 1997-1998 (456), in 2002-2003 (510), and in 2007-2008 (569)).
274. I describe each of these models in significantly greater detail in the
275. See SULLIVAN ET AL., supra note 158, at 47 ("The legal-case method, in all its variations, has dominated the first year of most legal education through much of the past century.");
276. Todd D. Rakoff & Martha Minow, A Case for Another Case Method, 60 VAND. L. REV. 597, 602 (2007) ("What [law students] most crucially lack... is the ability to generate the multiple characterizations, multiple versions, multiple pathways, and multiple solutions, to which they could apply their very well honed analytic skills."). For an interesting example of a "transactional lab" approach to teaching transactional lawyering skills
277. see Robert C. Illig, The Oregon Method: An Alternative Model for Teaching Transactional Law, 59 J. LEGAL EDUC. 221 (2009).