JJ Prescott and Kathryn E Spier, A Comprehensive Theory of Civil Settlement, New York University Law Review (forthcoming 2016), available at SSRN. How should we understand settlement in civil litigation? In A Comprehensive Theory of Civil Settlement, JJ Prescott and Kathryn Spier rethink civil settlement and take a significant step forward in the scholarly conversation about this topic. Generally, settlement has been understood as an alternative to a judicial disposition in the case. In this view, settlement is a zero-sum event from a systemic standpoint. (Of course, the parties negotiating a settlement may split the differences between them and both receive gains, but I am speaking of the court’s perspective here.) Prescott and Spier provide a new way of thinking about settlement as a continuum rather than as an either/or event that ends the dispute. At one end of the continuum is litigation according to the default procedural and substantive rules. On the other end is the termination of the dispute with an agreement. In between are many smaller agreements that parties can, and do, reach in moving toward resolution of their dispute. In explaining the implications of this insight, this article ties together disparate scholarship in a neat way. They support their argument with evidence from a sample of cases in New York’s summary jury trial docket … (more)
[Alexandra Lahav, JOTWELL, 14 April]
First posted 2016-04-14 19:59:16
Leave a Reply