There is a public debate and some legislation on the extent of confidentiality in ettlement agreements. But even here the questions are narrow: should confidentiality be available in cases likely to recur or where the claim involves governmental wrongdoing or threats to public safety. There is no serious dispute about the propriet of keeping confidential the amount of the settlement, and no suggestion that judges should approve their substantive fairness. A recent change in the Federal Rules of Civil Procedure nicely captures the image of civil litigation as a private activity. Although ivil discovery is part of the judicial process, parties are explicitly forbidden from filing discovery documents with the court unless they are subsequently used in a motion or at rial, t Having privatized the civil fact investigation process, we are generally happy to have consensual outcomes be as private as the discovery that preceded it Where civil settlements are overwhelmingly private, criminal settlements are always public. Where civil settlements require, except in unusual cases, only the consent of the parties, criminal pleas always require the participation and approval of the judge. By comparison to civil settlements, criminal plea bargains are not bargains"at all, but legislative proposals passed by two houses" and presented to a third official who can approve or veto. As the analogy suggests, we treat pleas less like private agreements than like public acts of state, requiring the transparency and separation of powers we insist should accompany accountable government Procedural rules reflect all these features. Two federal rules treat criminal and civil agreements: Rule 11 of the rules of Criminal Procedure and rule 16 of the rules of Civil Procedure. Comparing their features enables one concretely to understand the fundamentally different conceptions surrounding analogous terminations of litigation The civil provisions assume that counsel will adequately inform and protect clients malpractice suit is the remedy if the lawyer fails in this regard.50 Many provisions of the che 46 Richard A. Rosen, Confidentiality Agreements Become Increasingly Elusive: Several States Such Orders, NAT'L L.J., July 20, 1998, at B7; James E. Rooks, Jr, Let the Sun Shine In: "Sunshine'Laws Do Not 'Chill"Settlements, Say Advocates of Open Courts, TRIAL MAG, June 2003, at 18 See, e.g., Jack H. Friedenthal, Secrecy and the Civil Justice System in Civil Litigation Discovery and Party Agreements,9 J.L.& POL'Y 67(2000): TEX. R. CIv. P. 76A, SEALING COURT RECORDS Sunshine in Litigation; Concealment of Public Hazards Prohibited, FLA STAT. ANN. $69.08 (west2004) 48 FED. R. CIV. P 5(d)([DIsclosures.. and the following discovery requests and responses must not be filed until they are used in the proceeding or the court order filing: (i) depositions nterrogatories,(ii)requests for documents or to permit entry upon land, and (iv)requests for admission. This list includes every widely used discovery device. The motive for this Rule change was relatively innocuous: were all discovery routinely filed the storage space required would be enormous At least eventually. To protect ongoing investigations, settlements with cooperating defendants may be sealed pending other indictments And one finds a professional literature regarding malpractice pitfalls in settlements. See, e.g Jack L. Meligan, Using Plaintiff Structured Settlement Specialists, TRIAL MAG, Apr. 1999, Michael G Daigneault Jack Marshall, The Lawyer's Role in the Structured Settlement Era: Duties, Rules, and Perils. FED LAw. Oct. 1996. at 10
15 There is a public debate and some legislation on the extent of confidentiality in settlement agreements.46 But even here the questions are narrow: should confidentiality be available in cases likely to recur or where the claim involves governmental wrongdoing or threats to public safety.47 There is no serious dispute about the propriety of keeping confidential the amount of the settlement, and no suggestion that judges should approve their substantive fairness. A recent change in the Federal Rules of Civil Procedure nicely captures the image of civil litigation as a private activity. Although civil discovery is part of the judicial process, parties are explicitly forbidden from filing discovery documents with the court unless they are subsequently used in a motion or at trial.48 Having privatized the civil fact investigation process, we are generally happy to have consensual outcomes be as private as the discovery that preceded it. Where civil settlements are overwhelmingly private, criminal settlements are always public.49 Where civil settlements require, except in unusual cases, only the consent of the parties, criminal pleas always require the participation and approval of the judge. By comparison to civil settlements, criminal plea bargains are not “bargains” at all, but legislative proposals passed by two “houses” and presented to a third official who can approve or veto. As the analogy suggests, we treat pleas less like private agreements than like public acts of state, requiring the transparency and separation of powers we insist should accompany accountable government. Procedural rules reflect all these features. Two federal rules treat criminal and civil agreements: Rule 11 of the Rules of Criminal Procedure and Rule 16 of the Rules of Civil Procedure. Comparing their features enables one concretely to understand the fundamentally different conceptions surrounding analogous terminations of litigation. The civil provisions assume that counsel will adequately inform and protect clients; a malpractice suit is the remedy if the lawyer fails in this regard.50 Many provisions of the 46 Richard A. Rosen, Confidentiality Agreements Become Increasingly Elusive: Several States Have Limited the Availability of Protective Orders, and Judges Are Now More Skeptical About Issuing Such Orders, NAT’L L.J., July 20, 1998, at B7; James E. Rooks, Jr., Let the Sun Shine In: ‘Sunshine’ Laws Do Not ‘Chill’ Settlements, Say Advocates of Open Courts, TRIAL MAG., June 2003, at 18. 47 See, e.g., Jack H. Friedenthal, Secrecy and the Civil Justice System in Civil Litigation: Discovery and Party Agreements, 9 J.L. & POL’Y 67 (2000); TEX. R. CIV. P. 76A, SEALING COURT RECORDS; Sunshine in Litigation; Concealment of Public Hazards Prohibited, FLA. STAT. ANN. § 69.081 (West 2004). 48 FED. R. CIV. P. 5(d) (“[D]isclosures . . . and the following discovery requests and responses must not be filed until they are used in the proceeding or the court order filing: (i) depositions, (ii) interrogatories, (iii) requests for documents or to permit entry upon land, and (iv) requests for admission.”). This list includes every widely used discovery device. The motive for this Rule change was relatively innocuous: were all discovery routinely filed the storage space required would be enormous. 49 At least eventually. To protect ongoing investigations, settlements with cooperating defendants may be sealed pending other indictments. 50 And one finds a professional literature regarding malpractice pitfalls in settlements. See, e.g., Jack L. Meligan, Using Plaintiff Structured Settlement Specialists, TRIAL MAG., Apr. 1999; Michael G. Daigneault & Jack Marshall, The Lawyer’s Role in the Structured Settlement Era: Duties, Rules, and Perils, FED. LAW., Oct. 1996, at 10
criminal rule implicitly make the opposite assumption, requiring the judge repeatedly to inform the defendant of matters well known to any competent criminal lawyer. The civil rules cast the judge in the role--should she wish to assume it-of participant and even persuader, convening the parties and suggesting various possibilities of settlement creative approaches to bridging disagreements between the parties. The criminal forbids the judge from participating in such conversations, although(or because) must bless its result when it is presented to her. The initial stage of criminal agreements, then, is a matter entirely for the lawyers and the defendant; the judge is not to taint them by her presence until the moment comes when he may accept or reject the parties'agreement. Civil settlements, on the other hand, are matters that warrant a judge's presence, and perhaps his active encouragement, but not his assessment of their Moreover, nothing in the civil rule suggests any limits to the parties'or judges creativity in reaching consensus, and fertile minds have created a wide range of settlement devices. Structured settlements. sliding scale settlements. high-low agreements, and cede- backs of punitive damages testify to the creativity and breadth See, e.g, Judith Resnik, Mediating Preferences: Litigant Preferences for Process and Judicial Preferences for Settlement, 2002 J. DISP. RESOL. 155, 156 n5 (citing Hubert L. Will, Judiciai Responsibility for the Disposition of Litigation, in Proceedings of Seminar for Newly Appointed United States District Judges, 75 F.R. D. 117(1976)); Judith Resnik, Trial As Error, Jurisdiction As Injury Transforming the Meaning of Article l,113 HARV. L REv. 924, 943-949(2000) FED. R. CRIM. P. ll(e)(1)(instructing that"It]he court shall not participate in any such discussions"). Most state rules mirror the federal rule in this respect, but a growing minority of states allow and even encourage judges to participate in plea negotiations. See Wright miller, supra note 36,at 89&n224 es 37-43 and accompanying text. Structured settlements provide for payouts over an extended period. For example, a tort defendant, instead of settling for a large, single cash payment, might purchase an annuity policy uaranteeing defendant lifetime payments of $5,000 a month. Such settlements enable minors or financially unsophisticated parties to assure themselves of lifetime support. See, e. g, Barbara D. Goldberg &e Kenneth Mauro, Utilizing Structured Settlements, 658 PLI/LIT 31, 40-42(2001) Sliding scale settlements, sometime known as Mary Carter agreements, make the amount of payment by one party contingent on the plaintiffs recovery against remaining defendants. They assure the plaintiff some compensation, provide bridge financing for litigation against remaining defendants, and ameliorate the effects of joint and several liability regimes. Such agreements have been the subject both of debate and regulation. See, e. g, Dosdourian v. Carsten, 624 So. 2d 241(Fla. 1993); Lisa Bernstein Daniel Klerman, An Economic Analysis Of Mary Carter Settlement Agreements, 83 GEO. L.J. 2215(1995).See also CAL. CIV. PROC. CODE $$877, 877.5, 877.6(West 2005) High-low agreements put floors and ceilings on damage judgments, allowing parties to proceed trial over liability without risking disaster. For example, a plaintiff might agree to cap defendants liability at $500,000 in return for defendants agreement to pay at least $100,000 even if there were a defense verdict on liability. See, e.g, Andrea M. Alonso Kevin G. Faley, High-Low Agreements: You Can Have S>One defendant in a punitive damages case with a number of plaintiffs, recognizing that a settlement with some of the defendants would not reduce the amount of any future punitive damage award, arranged with a group of these plaintiffs for them to collect their portion of punitive damages and then
16 criminal rule implicitly make the opposite assumption, requiring the judge repeatedly to inform the defendant of matters well known to any competent criminal lawyer. The civil rules cast the judge in the role—should she wish to assume it—of participant and even persuader, convening the parties and suggesting various possibilities of settlement and creative approaches to bridging disagreements between the parties.51 The criminal rule forbids the judge from participating in such conversations, although (or because) she must bless its result when it is presented to her.52 The initial stage of criminal agreements, then, is a matter entirely for the lawyers and the defendant; the judge is not to taint them by her presence until the moment comes when he may accept or reject the parties’ agreement. Civil settlements, on the other hand, are matters that warrant a judge’s presence, and perhaps his active encouragement, but not his assessment of their justice.53 Moreover, nothing in the civil rule suggests any limits to the parties’ or judge’s creativity in reaching consensus, and fertile minds have created a wide range of settlement devices. Structured settlements, sliding scale settlements, high-low agreements,54 and cede-backs of punitive damages55 testify to the creativity and breadth 51 See, e.g., Judith Resnik, Mediating Preferences: Litigant Preferences for Process and Judicial Preferences for Settlement, 2002 J. DISP. RESOL. 155, 156 n.5 (citing Hubert L. Will, Judicial Responsibility for the Disposition of Litigation, in Proceedings of Seminar for Newly Appointed United States District Judges, 75 F.R.D. 117 (1976)); Judith Resnik, Trial As Error, Jurisdiction As Injury: Transforming the Meaning of Article III, 113 HARV. L. REV. 924, 943-949 (2000). 52 FED. R. CRIM. P. 11(e)(1) (instructing that “[t]he court shall not participate in any such discussions"). Most state rules mirror the federal rule in this respect, but a growing minority of states allow and even encourage judges to participate in plea negotiations. See Wright & Miller, supra note 36, at 89 & n.224. 53 See supra notes 37-43 and accompanying text. 54 Structured settlements provide for payouts over an extended period. For example, a tort defendant, instead of settling for a large, single cash payment, might purchase an annuity policy guaranteeing defendant lifetime payments of $5,000 a month. Such settlements enable minors or financially unsophisticated parties to assure themselves of lifetime support. See, e.g., Barbara D. Goldberg & Kenneth Mauro, Utilizing Structured Settlements, 658 PLI/LIT 31, 40-42 (2001). Sliding scale settlements, sometime known as Mary Carter agreements, make the amount of payment by one party contingent on the plaintiff’s recovery against remaining defendants. They assure the plaintiff some compensation, provide bridge financing for litigation against remaining defendants, and ameliorate the effects of joint and several liability regimes. Such agreements have been the subject both of debate and regulation. See, e.g., Dosdourian v. Carsten, 624 So.2d 241 (Fla. 1993); Lisa Bernstein & Daniel Klerman, An Economic Analysis Of Mary Carter Settlement Agreements, 83 GEO. L.J. 2215 (1995). See also CAL. CIV. PROC. CODE §§ 877, 877.5, 877.6 (West 2005). High-low agreements put floors and ceilings on damage judgments, allowing parties to proceed to trial over liability without risking disaster. For example, a plaintiff might agree to cap defendant’s liability at $500,000 in return for defendant’s agreement to pay at least $100,000 even if there were a defense verdict on liability. See, e.g., Andrea M. Alonso & Kevin G. Faley, High-Low Agreements: You Can Have Your Cake and Eat It, Too, 29 THE BRIEF 69 (1999). 55 One defendant in a punitive damages case with a number of plaintiffs, recognizing that a settlement with some of the defendants would not reduce the amount of any future punitive damage award, arranged with a group of these plaintiffs for them to collect their portion of punitive damages and then
of civil settlement practice. The criminal rule, by contrast, explicitly limits the range of bargaining Finally, for a criminal plea to be entered the defendant generally must not only admit guilt but also satisfy the judge that he both understands the consequences of his plea and has committed acts that would constitute the relevant offense. The efforts that judges make along these lines are often criticized as inadequate, but there is no factuality"inquiry at all on the civil side. Indeed, civil parties often expressly reserve the right to assert continued innocence of civil wrongdoing as a part of the civil ettlement and sometimes make such settlements in order to be able to make such assertions Stepping back from details now, consider the different universes occupied by these practices Civil settlements are an arena of great entrepreneurial creativity, welcomed by the ules and actively encouraged from the bench. Encouragement, in fact, is typically the dge's sole role in civil settlement. The rules have nothing to say about the content of civil settlements, and neither, in the vast of cases, does the judge who nominally presides over the litigation. The terms of a civil settlement need bear no relation to the outcome dictated by substantive law. Nor need they bear any resemblance to the settlement of a nearly identical case that being handled in the courtroom next door. The dark side of unconstrained creativity is arbitrary lawlessness On the criminal side, for all the complaints about backroom deals, there is a strong background presumption that cases can be settled only in ways consistent with the public's interest in seeing substantive justice done. That is why there are complaints about the aspects of plea bargaining that remain hidden from view, while the backroom bargaining on the civil side rarely comes in for criticism. The notion that plea bargains must accord with substantive standards of justice finds expression in the restrictions the subjects of bargaining, in the judge 's responsibility for ensuring the appropriateness of a plea, and also, perhaps, in the prohibition against judicial involvement in the negotiation of the plea agreement. For if the public's interest is in the substantive appropriateness of a plea agreement, and not in the degree to which the agreement satisfies the private objectives of the offender and the victim, it makes a certain amount of sense to limit the judge 's role to a scrutiny of the final terms of the agreement, and to keep the judge out of the process giving rise to the agreement Suppose we set aside, though, the historical development of the two branches our legal system. In so doing, we might consider whether the criminal system should be so completely governmental as the present regime implies, and whether the civil system return(cede back") those awards to the defendant. The Ninth Circuit upheld the practice against a challenge. In re The Exxon Valdez 229 F3d 790(9th Cir. 2000) FedR Crim. P. 11(e)(1) 31d11(b(2)(3)
17 of civil settlement practice. The criminal rule, by contrast, explicitly limits the range of bargaining.56 Finally, for a criminal plea to be entered the defendant generally must not only admit guilt but also satisfy the judge that he both understands the consequences of his plea and has committed acts that would constitute the relevant offense.57 The efforts that judges make along these lines are often criticized as inadequate, but there is no “factuality” inquiry at all on the civil side. Indeed, civil parties often expressly reserve the right to assert continued innocence of civil wrongdoing as a part of the civil settlement, and sometimes make such settlements in order to be able to make such assertions. Stepping back from details now, consider the different universes occupied by these practices. Civil settlements are an arena of great entrepreneurial creativity, welcomed by the rules and actively encouraged from the bench. Encouragement, in fact, is typically the judge's sole role in civil settlement. The rules have nothing to say about the content of civil settlements, and neither, in the vast of cases, does the judge who nominally presides over the litigation. The terms of a civil settlement need bear no relation to the outcome dictated by substantive law. Nor need they bear any resemblance to the settlement of a nearly identical case that being handled in the courtroom next door. The dark side of unconstrained creativity is arbitrary lawlessness. On the criminal side, for all the complaints about backroom deals, there is a strong background presumption that cases can be settled only in ways consistent with the public's interest in seeing substantive justice done. That is why there are complaints about the aspects of plea bargaining that remain hidden from view, while the backroom bargaining on the civil side rarely comes in for criticism. The notion that plea bargains must accord with substantive standards of justice finds expression in the restrictions on the subjects of bargaining, in the judge's responsibility for ensuring the appropriateness of a plea, and also, perhaps, in the prohibition against judicial involvement in the negotiation of the plea agreement. For if the public's interest is in the substantive appropriateness of a plea agreement, and not in the degree to which the agreement satisfies the private objectives of the offender and the victim, it makes a certain amount of sense to limit the judge's role to a scrutiny of the final terms of the agreement, and to keep the judge out of the process giving rise to the agreement. Suppose we set aside, though, the historical development of the two branches of our legal system. In so doing, we might consider whether the criminal system should be so completely governmental as the present regime implies, and whether the civil system return (“cede back”) those awards to the defendant. The Ninth Circuit upheld the practice against a challenge. In re The Exxon Valdez 229 F.3d 790 (9th Cir. 2000). 56 Fed. R. Crim. P. 11(e)(1). 57 Id. 11(b)(2)-(3)