firms whose members hourly compensation essentially matched that of their insurer-paid defense counterparts. As the proportion of solo practitioners declined from a majority of the American bar, the resulting firms--mostly small--constituted a new, better- capitalized group of legal entrepreneurs. Freed to compete, they did so fiercely sometimes without dignity, but with great effectiveness. The idea that major political figures would have devoted time to denouncing the excessive power of the plaintiffs'bar would have struck most observers as ludicrous a few decades ago; now it appears to be a part of at least one political party's platform For our purposes the significance lies not in whether the critique of the plaintiffs bar is well-taken, but in what it tells us about the entrepreneurial spirit that has developed within the civil litigation bar. The public side of the bar paid(quite literally) tribute to this development at the end of the 1990s, as state attorneys general hired--usually on a contingent fee basis-plaintiffs'-side law firms to pursue, on the states behalf, claims against tobacco companies. The decision to hire these firms was probably an intelligent move: the state attorney-general staffs, though they do civil litigation, probably were not equipped to handle the challenges presented by the tobacco litigation. The plaintiffs firms, forged in decades of entrepreneurial activity, were The second great change in civil practice came in the middle third of the twentieth century, as first federal, then state courts adopted discovery systems. Because these are such a familiar part of the procedural landscape, it is easy to miss their historic significance today. They put into the hands of private lawyers the power to compel sworn testimony and to require the other party and unaffiliated witnesses to disclose information and documents allow access to relevant real evidence and more. There are limits to this power, but from a comparative perspective it is broader and deeper than the powers exercised by private lawyers in any other legal system. In many respects the lawyers representing the parties in civil actions have in their hands powers remarkably like those exercised by police investigators in criminal matters. Unlike criminal ERBERT M. KRITZER, RISKS, REPUTATIONS, AND REWARDS: CONTINGENCY FEE LEGAL PRACTICE IN THE UNITED STATES(2004) In 2003 President George W. Bush made twelve speeches or public statements in which he identified"trial lawyers" as a significant issue of public policy. See 39 WEEKLY COMPILATION PRESIDENTIAL DOCS.73,117,109,289,321,776,1142,1253,1361,1459,1523,1767(2003), Shailagh Murray, Conservative Appeal: Trial Lawyers Lobby Discovers Unlikely Friends: Republicans, WALL ST J July 8, 2004, at Al. And that was before a former plaintiffs' lawyer, John Edwards, became the Democratic candidate for vice president in 2004 Robert Gehrke, Bill Would Place Caps on Tobacco Lawyers, Associated Press Online, Apr. 10 2003, available in Westlaw, 2003 WL 18223861(reporting legislation aimed at requiring lawyers hired by states to sue tobacco makers to reduce fees); Abdon M. Pallasch, Tobacco Layers Settle for $188M Illinois Initially Owed Them Nearly S/ Billion After Suit, CHI. SUN TIMES, Dec. 18, 2002, at 14(reporting on state AGs refusal to honor original fee agreement and subsequent settlement of lawyers claim); Fees Thrown Out for Anti-Tobacco Lawyers, SAN DIEGO UNION-TRIB, September 8, 2002, at A8(reporting trial court's rejection of arbitrators fee award to lawyers representing California in suit against tobacco KUO CHANG HUANG, INTRODUCING DISCOVERY INTO CIVIL LAW 37-103(2003): Geoffrey C Hazard, Jr, From Whom No Secrets Are Hid, 76 TEXAS L REV. 1665(1998)
10 firms whose members’ hourly compensation essentially matched that of their insurer-paid defense counterparts.25 As the proportion of solo practitioners declined from a majority of the American bar, the resulting firms—mostly small—constituted a new, bettercapitalized group of legal entrepreneurs. Freed to compete, they did so fiercely, sometimes without dignity, but with great effectiveness. The idea that major political figures would have devoted time to denouncing the excessive power of the plaintiffs’ bar would have struck most observers as ludicrous a few decades ago; now it appears to be a part of at least one political party’s platform.26 For our purposes the significance lies not in whether the critique of the plaintiffs’ bar is well-taken, but in what it tells us about the entrepreneurial spirit that has developed within the civil litigation bar. The public side of the bar paid (quite literally) tribute to this development at the end of the 1990s, as state attorneys general hired—usually on a contingent fee basis—plaintiffs’-side law firms to pursue, on the states’ behalf, claims against tobacco companies.27 The decision to hire these firms was probably an intelligent move: the state attorney-general staffs, though they do civil litigation, probably were not equipped to handle the challenges presented by the tobacco litigation. The plaintiffs’ firms, forged in decades of entrepreneurial activity, were. The second great change in civil practice came in the middle third of the twentieth century, as first federal, then state courts adopted discovery systems. Because these are such a familiar part of the procedural landscape, it is easy to miss their historical significance today. They put into the hands of private lawyers the power to compel sworn testimony and to require the other party and unaffiliated witnesses to disclose information and documents, allow access to relevant real evidence, and more. There are limits to this power, but from a comparative perspective it is broader and deeper than the powers exercised by private lawyers in any other legal system.28 In many respects the lawyers representing the parties in civil actions have in their hands powers remarkably like those exercised by police investigators in criminal matters. Unlike criminal 25 HERBERT M. KRITZER, RISKS, REPUTATIONS, AND REWARDS: CONTINGENCY FEE LEGAL PRACTICE IN THE UNITED STATES (2004). 26 In 2003 President George W. Bush made twelve speeches or public statements in which he identified “trial lawyers” as a significant issue of public policy. See 39 WEEKLY COMPILATION PRESIDENTIAL DOCS. 73, 117, 109, 289, 321, 776, 1142, 1253, 1361, 1459, 1523, 1767 (2003); Shailagh Murray, Conservative Appeal: Trial Lawyers Lobby Discovers Unlikely Friends: Republicans, WALL ST. J., July 8, 2004, at A1. And that was before a former plaintiffs' lawyer, John Edwards, became the Democratic candidate for Vice President in 2004. 27 Robert Gehrke, Bill Would Place Caps on Tobacco Lawyers, Associated Press Online, Apr. 10, 2003, available in Westlaw, 2003 WL 18223861 (reporting legislation aimed at requiring lawyers hired by states to sue tobacco makers to reduce fees); Abdon M. Pallasch, Tobacco Lawyers Settle for $188M: Illinois Initially Owed Them Nearly $1 Billion After Suit, CHI. SUN TIMES, Dec. 18, 2002, at 14 (reporting on state AG’s refusal to honor original fee agreement and subsequent settlement of lawyers’ claim); Fees Thrown Out for Anti-Tobacco Lawyers, SAN DIEGO UNION-TRIB., September 8, 2002, at A8 (reporting trial court’s rejection of arbitrators’ fee award to lawyers representing California in suit against tobacco companies). 28 KUO CHANG HUANG, INTRODUCING DISCOVERY INTO CIVIL LAW 37-103 (2003); Geoffrey C. Hazard, Jr., From Whom No Secrets Are Hid, 76 TEXAS L. REV. 1665 (1998)
investigation, however, the cost of civil discovery is borne by the parties separately, rather than by society as a whole. This practice distinguishes American civil procedure not only from American criminal process, but also from private litigation in civil law countries, where judges typically decide whether and how deeply to probe the disputed facts. The American system of civil discovery strives to align procedural opportunities with party incentives; much of the debate about the system revolves around whether the incentives lead to spending that is wasteful seen from a social perspective. For our purposes the focus lies on the privatization of the system of fact investigation. Where the public generally bore the cost of criminal fact investigation, the parties(and to the extent they were inconvenienced, non-party witnesses) bore the costs of civil discovery. That divergence had numerous collateral effects: the size of the U.S. judiciary stayed small relative to the size of many civil law nations; many in the civil bar who once tried cases became "litigators, whose efforts focused on the pretrial phase and on the ensuin settlement; many of the disputes giving rise to civil litigation vanished from public sight because they occurred in lawyers offices and on motion days rather than in trial Debates about these consequences, singly and together, rage. Our focus remains on how the divergence allowed us to lose sight of the respects in which the two systems might learn from each other These two paths--assimilation of the criminal bar largely into government service at the same time that civil practitioners were looking ever more like entrepreneurs-gave different feels to discussions of procedural change in the two areas. Criminal law today practiced almost exclusively by government bureaucracies, while private practitioners dominate civil law, and relatively few lawyers cross the boundary between the two domains. This separation has made the two bars and the academics who study them rather unlikely to think about "procedure"as a unified field. It has made cross- comparisons and borrowings hard to imagine, let alone to carry out. And it has given different casts to reform efforts on the two sides of the procedural divide. bureaucracies at their best are faithful, reliable, honest, efficient, and public-spirited; they are unlikely to be innovative. Entrepreneurs at their best are forward-thinking and inventive, but they tend to focus overwhelmingly on profit as a measure of success, and they are apt to be dismissive of what they can learn from government Partly as a consequence of these different mindsets and partly because criminal process had its great innovative era in the nineteenth century, the changes in civil procedure in the twentieth century dwarf those in criminal procedure. Civil practice saw the growth of private discovery, the asymptotic decline in trials, the elaboration of joinder devices (including but not limited to the class action), the diminished significance of pleading, and the judicial blessing of a number of forms of private adjudication Together, these changes have transformed civil practice. The changes on the criminal side have been more modest: criminal procedure has not fundamentally altered its shape in a century, except when constitutionally required to do so. That is, of course, a large 29 See HUANG, supra note 28, at 46-47 See, e.g., Stephen C. Yeazell, Getting What We Asked For, Getting What We Paid For, and Not Liking What We Got: The Vanishing Civil Trial, 1 J. EMPIRICAL LEGAL STUD 943(2004)
11 investigation, however, the cost of civil discovery is borne by the parties separately, rather than by society as a whole. This practice distinguishes American civil procedure not only from American criminal process, but also from private litigation in civil law countries, where judges typically decide whether and how deeply to probe the disputed facts.29 The American system of civil discovery strives to align procedural opportunities with party incentives; much of the debate about the system revolves around whether the incentives lead to spending that is wasteful seen from a social perspective. For our purposes the focus lies on the privatization of the system of fact investigation. Where the public generally bore the cost of criminal fact investigation, the parties (and to the extent they were inconvenienced, non-party witnesses) bore the costs of civil discovery. That divergence had numerous collateral effects: the size of the U.S. judiciary stayed small relative to the size of many civil law nations; many in the civil bar who once tried cases became “litigators,” whose efforts focused on the pretrial phase and on the ensuing settlement; many of the disputes giving rise to civil litigation vanished from public sight because they occurred in lawyer’s offices and on motion days rather than in trial. Debates about these consequences, singly and together, rage.30 Our focus remains on how the divergence allowed us to lose sight of the respects in which the two systems might learn from each other. These two paths—assimilation of the criminal bar largely into government service at the same time that civil practitioners were looking ever more like entrepreneurs—gave different feels to discussions of procedural change in the two areas. Criminal law today is practiced almost exclusively by government bureaucracies, while private practitioners dominate civil law, and relatively few lawyers cross the boundary between the two domains. This separation has made the two bars and the academics who study them rather unlikely to think about “procedure” as a unified field. It has made crosscomparisons and borrowings hard to imagine, let alone to carry out. And it has given different casts to reform efforts on the two sides of the procedural divide. Bureaucracies at their best are faithful, reliable, honest, efficient, and public-spirited; they are unlikely to be innovative. Entrepreneurs at their best are forward-thinking and inventive, but they tend to focus overwhelmingly on profit as a measure of success, and they are apt to be dismissive of what they can learn from government. Partly as a consequence of these different mindsets and partly because criminal process had its great innovative era in the nineteenth century, the changes in civil procedure in the twentieth century dwarf those in criminal procedure. Civil practice saw the growth of private discovery, the asymptotic decline in trials, the elaboration of joinder devices (including but not limited to the class action), the diminished significance of pleading, and the judicial blessing of a number of forms of private adjudication. Together, these changes have transformed civil practice. The changes on the criminal side have been more modest: criminal procedure has not fundamentally altered its shape in a century, except when constitutionally required to do so. That is, of course, a large 29 See HUANG, supra note 28, at 46-47. 30 See, e.g., Stephen C. Yeazell, Getting What We Asked For, Getting What We Paid For, and Not Liking What We Got: The Vanishing Civil Trial, 1 J. EMPIRICAL LEGAL STUD. 943 (2004)
exception. The constraints imposed on criminal procedure by interpretations of the Fourth, Fifth, Sixth, and, to a lesser extent, Eighth Amendments to the federal Constitution, have been important, real, and remarkable. But they have been won and lost in the courts. not in drafting committees or law reform commissions And reliance on constitutional adjudication as a path to procedural change has certain stultifying funds are on the line, 3/W especially pronounced when-as with criminal justice--public effects, effects that gr Not all reforms are advances. Criminal practitioners may have been right to resist some of the innovations pioneered in civil procedure. Some of those changes may have been changes for the worse, and even some reforms that were welcome on the civil side may not have made sense on the criminal side. In other cases, though, glances across the procedural divide may be a useful corrective to the institutional conservatism of criminal procedure. The civil bar, for its part, may have something to gain from the reminder that civil justice is more than an arena for earning profits. Some of the procedures on the criminal side of the divide may make little sense in civil cases; some of those procedures may in fact make little sense even in criminal cases. Elsewhere, though, criminal process may have more to teach civil process than is commonly imagined We believe, in fact, that each side of the procedural divide has things to teach the other. We turn now to some of the possible lessons IL NEGLECTED COMPARISONS ACROSS THE PROCEDURAL DIVIDE A. Settlement Most civil and most criminal cases end with a consensual resol In civil litigation we call such resolutions settlements; on the criminal docket, they go under the 5i See David A. Sklansky, Quasi-Affirmative Rights in Constitutional Criminal Procedure, 88 VA L.REV.1229,1279-85(2002) It is remarkably difficult to get robust statistics on the rate of civil or criminal consensual settlement. The most common mistake is to subtract the percentage of trials from the percentage of filings and thereby arrive at a figure of over 95% of settlements or plea bargains. That is an error because it disregards the circumstance that many civil cases end with dispositive adjudication before trial. Those cases end because of a judicial decision that concludes the case, not because the parties decide to control the risk of adjudication with an agreement. See Stephen C. Yeazell, The Misunderstood Consequences of modern Civil Process, 1994 WIS. L. REv. 63 1 [hereinafter Yeazell, Misunderstood Consequences]. An analogous calculation on the criminal side would put consensual agreements at approximately 95%, but, again, this disregards all dispositions that were unilaterally terminated or that were otherwise dismissed. See U.S DEPT OF JUSTICE BUREAU OF JUSTICE STATISTICS: COMPENDIUM OF FEDERAL JUSTICE STATISTICS 2001 at 55(2003). Our own estimates, for which we claim no great statistical sophistication, put both the rate of plea bargain and the rate of civil settlement at about 60% of filed cases-very high but not overwhelming On the criminal side, for example, the Federal Bureau of Justice Statistics study tracked felony filings in the nations seventy-five largest urban counties during a recent year; of the 88% of the cases adjudicated by the end of the year, 61% resulted in guilty pleas. See U.S. DEPT OF JUSTICE, BUREAU OF JUSTICE STATISTICS STATE COURT PROCESSING STATISTICS: FELONY DEFENDANTS IN LARGE URBAN COUNTIES. 1998. at 24 (2001). Regarding the comparable figures on the civil side, see Yeazell, supra, at 636-71
12 exception. The constraints imposed on criminal procedure by interpretations of the Fourth, Fifth, Sixth, and, to a lesser extent, Eighth Amendments to the federal Constitution, have been important, real, and remarkable. But they have been won and lost in the courts, not in drafting committees or law reform commissions. And reliance on constitutional adjudication as a path to procedural change has certain stultifying effects, effects that grow especially pronounced when—as with criminal justice—public funds are on the line.31 Not all reforms are advances. Criminal practitioners may have been right to resist some of the innovations pioneered in civil procedure. Some of those changes may have been changes for the worse, and even some reforms that were welcome on the civil side may not have made sense on the criminal side. In other cases, though, glances across the procedural divide may be a useful corrective to the institutional conservatism of criminal procedure. The civil bar, for its part, may have something to gain from the reminder that civil justice is more than an arena for earning profits. Some of the procedures on the criminal side of the divide may make little sense in civil cases; some of those procedures may in fact make little sense even in criminal cases. Elsewhere, though, criminal process may have more to teach civil process than is commonly imagined. We believe, in fact, that each side of the procedural divide has things to teach the other. We turn now to some of the possible lessons. II. NEGLECTED COMPARISONS ACROSS THE PROCEDURAL DIVIDE A. Settlement Most civil and most criminal cases end with a consensual resolution.32 In civil litigation we call such resolutions settlements; on the criminal docket, they go under the 31 See David A. Sklansky, Quasi-Affirmative Rights in Constitutional Criminal Procedure, 88 VA. L. REV. 1229, 1279-85 (2002). 32 It is remarkably difficult to get robust statistics on the rate of civil or criminal consensual settlement. The most common mistake is to subtract the percentage of trials from the percentage of filings and thereby arrive at a figure of over 95% of settlements or plea bargains. That is an error because it disregards the circumstance that many civil cases end with dispositive adjudication before trial. Those cases end because of a judicial decision that concludes the case, not because the parties decide to control the risks of adjudication with an agreement. See Stephen C. Yeazell, The Misunderstood Consequences of Modern Civil Process, 1994 WIS. L. REV. 631 [hereinafter Yeazell, Misunderstood Consequences]. An analogous calculation on the criminal side would put consensual agreements at approximately 95%, but, again, this disregards all dispositions that were unilaterally terminated or that were otherwise dismissed. See U.S. DEP’T OF JUSTICE, BUREAU OF JUSTICE STATISTICS: COMPENDIUM OF FEDERAL JUSTICE STATISTICS, 2001, at 55 (2003). Our own estimates, for which we claim no great statistical sophistication, put both the rate of plea bargain and the rate of civil settlement at about 60% of filed cases—very high but not overwhelming. On the criminal side, for example, the Federal Bureau of Justice Statistics study tracked felony filings in the nation’s seventy-five largest urban counties during a recent year; of the 88% of the cases adjudicated by the end of the year, 61% resulted in guilty pleas. See U.S. DEP’T OF JUSTICE, BUREAU OF JUSTICE STATISTICS STATE COURT PROCESSING STATISTICS: FELONY DEFENDANTS IN LARGE URBAN COUNTIES, 1998, at 24 (2001). Regarding the comparable figures on the civil side, see Yeazell, supra, at 636-71
name of plea bargains. On the civil side settlements are a generally accepted and widely encouraged practice. The practice has some prominent academic critics, but by and large it remains broadly accepted by the bar, judiciary, and clients. By contrast, the plea bargain, though equally dominant as a form of resolution, is widely criticized and often attacked as fundamentally illegitimate both by the public and many segments of the bargaining is largely a debate about whether the evil is truly necessary debate len is a profession. The title of an essay by a prominent criminal law scholar, Plea Bargaining as Disaster, captures a widely held view. Plea bargaining has its defenders, but even they rarely praise the practice as anything better than a necessary evil. The plea The truth, of course, is that both plea bargaining and the system of civil settlement are likely to be with us for some time to come, the real question is what form they should take. And here the differences between the two systems are, if anything, even more striking. Civil settlement and plea bargaining each seem deeply embedded in their respective legal cultures. As a result, civil settlement occurs in an atmosphere of entrepreneurial creativity untrammeled by--and sometimes at odds with--the regularity implied by the rule of law. Criminal pleas, in contrast, occur in an atmosphere that, at least formally, values co rency,and regularity. We examine eac system in turn, and then step back to draw some comparisons and to suggest some lessons %o t o first, the civil side. Settlement here is a private, largely invisible,contractual phenomenon; the judge plays a role only as a potential facilitator of private agreement Civil parties settle at any point in the dispute, from before filing to after appeal, simply by agreeing to do so. Moreover, the terms to which they may agree are, with few exceptions, entirely a matter between the parties: the court stands indifferent when the See, e.g, Samuel R. Gross Kent D. Syverud, Don't Try: Civil Jury Verdicts in a System Geared to Settlement, 44 UCLA L. REV. 1, 2-4(1996): Judith Resnik, Whose Judgment? vacating Judgments, Preferences for Settlement, and the role of Adjudication at the Close of the Twentieth Century, 41 UCLA L. REV. 1471, 1474(1994)(" On the one hand, on almost every occasion, judges and lawyers extol the virtues of settlement and the desirability of enabling private accommodations among litigants end disputes without state-authored adjudication. ) Tellingly, at a symposium convened in December 2003 by the Section on Litigation of the American Bar Association(and attended by one of the authors), debate focused not on whether settlement was iniquitous but on particular settlement practices(e.g, should the magistrate judge conducting settlement conferences report to the trial judge on the parties' positions Stephen J Schulhofer, Plea Bargaining as Disaster, 101 YALE. L.J. 1979(1992) 56 See, e. g, Albert W. Alschuler, Implementing the Defendant's Right to Trial: Alternatives to the Plea Bargaining System, 50 U CHI. L REv. 931, 1048(1983); Stephanos Bibas, Plea Bargaining Outside the Shadow of Trial, 1 17 HARV. L REV. 2463, 2544-45(2004); Arthur Rosett David A Sklansky, Plea Bargaining, in THE OXFORD COMPANION TO AMERICAN LAW 604(Kermit L. Hall ed, 2002): Stephen J Schulhofer, Is Plea Bargaining Inevitable?, 97 HARv. L REv. 1037, 1107(1984); Ronald Wright Marc Miller, The Screening/Bargaining Tradeoff, 55 STAN. L. REV. 29(2002). For a rare defense of plea bargaining as actually desirable, see Frank H. Easterbrook, Criminal Procedure as a Market System, 12 J LEGAL STUD. 289(1983) 13
13 name of plea bargains.33 On the civil side settlements are a generally accepted and widely encouraged practice. The practice has some prominent academic critics, but by and large it remains broadly accepted by the bar, judiciary, and clients.34 By contrast, the plea bargain, though equally dominant as a form of resolution, is widely criticized and often attacked as fundamentally illegitimate both by the public and many segments of the profession. The title of an essay by a prominent criminal law scholar, Plea Bargaining as Disaster, captures a widely held view.35 Plea bargaining has its defenders, but even they rarely praise the practice as anything better than a necessary evil. The debate over plea bargaining is largely a debate about whether the evil is truly necessary.36 The truth, of course, is that both plea bargaining and the system of civil settlement are likely to be with us for some time to come; the real question is what form they should take. And here the differences between the two systems are, if anything, even more striking. Civil settlement and plea bargaining each seem deeply embedded in their respective legal cultures. As a result, civil settlement occurs in an atmosphere of entrepreneurial creativity untrammeled by--and sometimes at odds with--the regularity implied by the rule of law. Criminal pleas, in contrast, occur in an atmosphere that, at least formally, values consistency, transparency, and regularity. We examine each system in turn, and then step back to draw some comparisons and to suggest some lessons each system could teach the other. First, the civil side. Settlement here is a private, largely invisible, contractual phenomenon; the judge plays a role only as a potential facilitator of private agreement. Civil parties settle at any point in the dispute, from before filing to after appeal, simply by agreeing to do so. Moreover, the terms to which they may agree are, with few exceptions, entirely a matter between the parties: the court “stands indifferent when the 33 It is another striking example of the disconnection between these procedural realms that “bargain,” the word one might associate with the commercial transactions that are a staple of civil litigation, applies instead to the criminal resolutions. 34 See, e.g., Samuel R. Gross & Kent D. Syverud, Don’t Try: Civil Jury Verdicts in a System Geared to Settlement, 44 UCLA L. REV. 1, 2-4 (1996); Judith Resnik, Whose Judgment? Vacating Judgments, Preferences for Settlement, and the Role of Adjudication at the Close of the Twentieth Century, 41 UCLA L. REV. 1471, 1474 (1994) (“On the one hand, on almost every occasion, judges and lawyers extol the virtues of settlement and the desirability of enabling private accommodations among litigants to end disputes without state-authored adjudication.”). Tellingly, at a symposium convened in December 2003 by the Section on Litigation of the American Bar Association (and attended by one of the authors), debate focused not on whether settlement was iniquitous but on particular settlement practices (e.g., should the magistrate judge conducting settlement conferences report to the trial judge on the parties’ positions). 35 Stephen J. Schulhofer, Plea Bargaining as Disaster, 101 YALE. L.J. 1979 (1992). 36 See, e.g., Albert W. Alschuler, Implementing the Defendant's Right to Trial: Alternatives to the Plea Bargaining System, 50 U. CHI. L. REV. 931, 1048 (1983); Stephanos Bibas, Plea Bargaining Outside the Shadow of Trial, 117 HARV. L. REV. 2463, 2544-45 (2004); Arthur Rosett & David A. Sklansky, Plea Bargaining, in THE OXFORD COMPANION TO AMERICAN LAW 604 (Kermit L. Hall ed., 2002); Stephen J. Schulhofer, Is Plea Bargaining Inevitable?, 97 HARV. L. REV. 1037, 1107 (1984); Ronald Wright & Marc Miller, The Screening/Bargaining Tradeoff, 55 STAN. L. REV. 29 (2002). For a rare defense of plea bargaining as actually desirable, see Frank H. Easterbrook, Criminal Procedure as a Market System, 12 J. LEGAL STUD. 289 (1983)
parties, for whatever reason commends itself to them, choose to settle a litigation. The overwhelming majority of settlements require only that the parties agree; the court is told only that the plaintiff is dismissing the case Only in relatively exotic situations--settlements involving minors or absentee members of a class action, consent decrees involving future enforcement by the court need a judge consider or approve the substantive terms of the agreement. And even consent decrees receive meaningful review only in those exceptional suits thought to affect[ the public intereste g, class actions, shareholder derivative suits bankruptcy claims, environmental enforcement actions, etc. Because" ordinary"civil casesare thought to implicate only private interests, the court in such a case" makes the status of a judicially enforceable decree. M3 agreement is appropriate to be accorded only the minimal determination of whether the Three decades ago, with public interest litigation and class action suits both appearing to be on the upswing, abram Chayes could claim plausibly, if controversially, that civil suits affecting "only private interests"were a dwindling species. But the notion proved remarkably durable that civil litigation is first and foremost an arena for the adjustment of private disputesdisputes in which the public plays no role aside from providing a neutral arbitrator. The durability of that notion explains some of the strong political and judicial opposition that emerged to the kind of"public law litigation that Chayes celebrated. It explains, too, why an"active role for the trial court in approv the adequacy of a settlement "remains today "the exceptional situation, not the general rule Heddendorf v Goldfine, 167 F Supp 915, 926(D.C Mass. 1958)(Wyzanski, J );accord, e.g United States v City of Miami, 614 F 2d 1322, 1330(5th Cir. 1980) 58 See, e.g., FED. R. CIV. P. 23(e)(requiring court approval, after notice, of a settlement involving a class): CAL. CIV. PROC. CODE $372(a)(requiring judicial approval of settlement of claims involving Adams v. Bell, 711 F 2d 161, 170 n. 40(D. C. Cir. 1983)(en banc) See, e. g, id; Janus Films, Inc. v. Miller, 801 F 2d 578, 582(2d Cir. 1986); United States v Telluride Co., 849 F. Supp. 1400, 1402(D. Colo. 1994); Friends of the Earth v. Archer Daniels Midland Co,780F.Supp.95,99NDNY.1992) City of Miami, 614 F Supp. at 13 Janus Films. 801 F 2d at 582 Abram Chayes, The Role of the Judge in Public Law litigation, 89 HARV. L REV. 1281(1976) City of Miami, 614 F. Supp at 1331. If"It] here is no indication of reduction in the volume or mportance of Chayesian judicial activity, Charles F. Sabel William H. Simon, Destabilization Rights How Public Law Litigation Succeeds, 117 HARV. L. REV. 1015, 1018-19(2004), neither is there any indication of a significant increase--or of greater willingness to see public law litigation as the norm rather han the exception in civil process
14 parties, for whatever reason commends itself to them, choose to settle a litigation.”37 The overwhelming majority of settlements require only that the parties agree; the court is told only that the plaintiff is dismissing the case. Only in relatively exotic situations—settlements involving minors or absentee members of a class action, consent decrees involving future enforcement by the court— need a judge consider or approve the substantive terms of the agreement.38 And even consent decrees receive meaningful review only in those exceptional suits thought to “affect[] the public interest”39—e.g., class actions, shareholder derivative suits, bankruptcy claims, environmental enforcement actions, etc.40 Because “ordinary” civil cases41 are thought to implicate “only private interests,”42 the court in such a case “makes only the minimal determination of whether the agreement is appropriate to be accorded the status of a judicially enforceable decree.”43 Three decades ago, with public interest litigation and class action suits both appearing to be on the upswing, Abram Chayes could claim plausibly, if controversially, that civil suits affecting “only private interests” were a dwindling species.44 But the notion proved remarkably durable that civil litigation is first and foremost an arena for the adjustment of private disputes—disputes in which the public plays no role aside from providing a neutral arbitrator. The durability of that notion explains some of the strong political and judicial opposition that emerged to the kind of “public law litigation” that Chayes celebrated. It explains, too, why an “active role for the trial court in approving the adequacy of a settlement” remains today “the exceptional situation, not the general rule.”45 37 Heddendorf v. Goldfine, 167 F. Supp. 915, 926 (D.C. Mass. 1958) (Wyzanski, J.); accord, e.g., United States v. City of Miami, 614 F.2d 1322, 1330 (5th Cir. 1980). 38 See, e.g., FED. R. CIV. P. 23(e) (requiring court approval, after notice, of a settlement involving a class); CAL. CIV. PROC. CODE §372(a) (requiring judicial approval of settlement of claims involving minors) (West 2005). 39 Adams v. Bell, 711 F.2d 161, 170 n.40 (D.C. Cir. 1983) (en banc). 40 See, e.g., id.; Janus Films, Inc. v. Miller, 801 F.2d 578, 582 (2d Cir. 1986); United States v. Telluride Co., 849 F. Supp. 1400, 1402 (D. Colo. 1994); Friends of the Earth v. Archer Daniels Midland Co., 780 F. Supp. 95, 99 (N.D.N.Y. 1992). 41 City of Miami, 614 F. Supp. at 1330. 42 Janus Films, 801 F.2d at 582. 43 Id. 44 Abram Chayes, The Role of the Judge in Public Law Litigation, 89 HARV. L. REV. 1281 (1976). 45 City of Miami, 614 F. Supp. at 1331. If “[t]here is no indication of reduction in the volume or importance of Chayesian judicial activity,” Charles F. Sabel & William H. Simon, Destabilization Rights: How Public Law Litigation Succeeds, 117 HARV. L. REV. 1015, 1018-19 (2004), neither is there any indication of a significant increase—or of greater willingness to see public law litigation as the norm rather than the exception in civil process