The Public Value of Settlement
New York University School of Law
Robert H. Klonoff
Lewis & Clark Law School
November 4, 2009
Fordham Law Review, Forthcoming
NYU School of Law, Public Law Research Paper No. 09-61
NYU Law and Economics Research Paper No. 09-44
Lewis & Clark Law School Legal Studies Research Paper No. 2010-2
This article, part of a symposium honoring the 25th anniversary of Owen Fiss’s Against Settlement, takes issue with the basic premise that settlement indicates defeat of the weak by the powerful, the poor by the rich, the injured by the wrongdoers. The argument is both empirical and normative. On the empirical side, this article challenges the basic claim advanced by Fiss and Marc Galanter that repeat players in the courts of justice are more likely to prevail because they will marshal and deploy greater resources. Over the past quarter century, the emergence of the well-heeled plaintiffs’ firm together with referral and other market organizing practices have allowed plaintiffs to fight and defeat institutional defendants across all sorts of mass harm cases. Normatively, this article challenges the assumption that the driving organizational framework of the court system should be derived from the structural injunction that characterized an episodic phase of the civil rights movement. Instead, resolution of mass harms has been and continues to be one of the great challenges of the judicial system, a process for which settlement is a critical and likely inescapable component.
Number of Pages in PDF File: 27Accepted Paper Series
Date posted: November 4, 2009 ; Last revised: January 7, 2010
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