Three Things to Be Against ('Settlement' Not Included) - A Response to Owen Fiss
Michael L. Moffitt
University of Oregon - School of Law
May 30, 2009
Fordham Law Review, Forthcoming
Owen Fiss's Against Settlement deserves robust praise and gratitude from those who care about settlement and about litigation. The article helpfully suggested at least three perspectives from which to examine each of those processes. It focused attention on power imbalances and their potentially destructive effects. It raised questions about the pitfalls of agency dynamics, particularly in cases involving significant numbers of disputants. It demanded that we wrestle with what it means for people to have access to the court system and to the justice it promises. All three of these perspectives remain at least as vital today as they were in 1984. Against Settlement deserves robust opposition to the extent it suggests a binary choice between settlement and litigation. If Fiss urges such a choice, the question he poses is not merely a 'Which of your children do you love most?' kind of question. Instead, it is one for which neither answer could possibly be adequate: 'Which is better, food or water?'. Perhaps it is a mis-reading of Fiss to think that he demands a binary choice. But the title Fiss chose and the language he uses in his article make more nuanced readings like these difficult. If Against Settlement means what its language implies - that one could do away with settlement, retain litigation, and be better off for the change - then the article's thesis is flawed both as a theoretical and as a practical matter. We should celebrate the beauty in each process's internal narrative of justice, of truth, of efficiency, of predictability, and even of morality. Proponents of settlement believe not merely in settlement's efficiency, but also in its ability to bring justice, to discover truth(s), and to provide stability. Proponents of litigation embrace the same values. We might usefully engage the empirical question of whether one process or the other does a better job of promoting each of these values. Both settlement and litigation fail on each of these measures with some reliability, and both processes continue to undergo reforms aimed at improving their performances as measured by these values. But to characterize either as unconcerned with any one of these values is simply false. If we set out to compare settlement with litigation, we should do so responsibly. We should compare the idealized vision of settlement with the idealized vision of litigation. Or we should compare the sloppy reality of settlement in practice with the sloppy reality of litigation in practice. But more than anything, we should recognize that settlement and litigation are no longer separate - in practice or in theory. Because settlement and litigation are co-evolved symbiotic processes, to stand against one is to stand against the other. I choose, instead, to be for litigation and for settlement.
Number of Pages in PDF File: 47
Keywords: ADR, settlement, mediation, dispute resolution
JEL Classification: K1, K19, K39, K4, K41, K49Accepted Paper Series
Date posted: May 31, 2009
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