Exiting Litigation

23 Pages Posted: 10 Jul 2009 Last revised: 19 Feb 2011

Date Written: 2009


This essay, prepared for the Symposium on the Judiciary in the Twenty-First Century at Loyola University Chicago School of Law, discusses the circumstances in which courts should permit exit into non-adjudicatory processes such as ADR, mass-resolution facilities, or adjudication before administrative agencies. It begins by arguing that courts must justify their decisions to allow litigation-eligible disputes to exit into other resolution mechanisms. It then proposes three possible justifications for exit: consent of all affected parties, a lack of harm caused to any affected party, or a gain in social utility from using a non-adjudicatory process. The essay then maps those three justifications onto, respectively, ADR, mass-resolution facilities, and administrative adjudication to provide some rules of thumb to guide courts in their determinations whether and when to permit exit.

Keywords: Alternative Dispute Resolution, ADR, Civil Procedure, Courts

Suggested Citation

Tidmarsh, Jay, Exiting Litigation (2009). Loyola University Chicago Law Journal, Vol. 41, 2009, Notre Dame Legal Studies Paper No. 09-32, Available at SSRN: https://ssrn.com/abstract=1432605

Jay Tidmarsh (Contact Author)

Notre Dame Law School ( email )

P.O. Box 780
Notre Dame, IN 46556-0399
United States
574-631-6985 (Phone)
574-631-4197 (Fax)

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