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Hastings Law Journal

Abstract

In recent years the settlement of pending civil cases has become an avowed goal of federal judicial administration. This Article considers whether this new policy favoring settlement is justified and how the policy ought to be implemented. The new policy differs from prior settlement preferences in rejecting the assumption, basic to the adversary system, that represented parties' decisions to continue litigation generally serve both the parties' and the public interest.

This Article examines the premises of the policy favoring settlement in light of recent changes in federal litigation. Professor Bundy considers the private interest arguments in favor of settlement and concludes that the cumulative effects of those changes do not justify general, continuing skepticism about the prudence of party decisions to continue litigation. The Article then evaluates public interest claims in favor of settlement and concludes that settling pending federal court cases will not generally serve public goals.

The Article concludes by analyzing issues on the current reform agenda, focusing on the mandatory pretrial conference under Rule 16 of the Federal Rules of Civil Procedure, the appropriate judicial role in settlement bargaining, and the limits of compelled participation in judicial mediation. Professor Bundy argues that compelled mediation to prevent bargaining breakdowns might well increase both the private and public value of litigation outcomes, but that more intrusive intervention to improve party deliberation or to promote just outcomes is unjustified.

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