The New Meaning of Rule 68: Marek v. Chesny and Beyond
Introduction
Napoleon reportedly once said of India, “She is a sleeping giant. But when she wakes, the earth will tremble.” For nearly 50 years, rule 68 of the Federal Rules of Civil Procedure, the only procedural rule devoted exclusively to encouraging settlement, has been a sleeping giant. But last summer, in Marek v. Chesny, the Supreme Court woke it up. This article will explore the implications of rule 68’s revitalization.
Part I of this article will explain the basic operation of rule 68. Part II will suggest possible answers to major questions not expressly resolved by the Marek decision. Parts III and IV will give plaintiffs and defendants practical advice about using rule 68 in light of Marek. Part V will discuss some of the implications of the case on settlement negotiations outside the context of rule 68. Finally, Part VI will discuss Marek’s implications for reform, both in the Judicial Conference and in Congress.
Suggested Reading
Attorney's Fees in the Agent Orange Litigation: Modifying the Lodestar Analysis for Mass Tort Cases
Judge Weinstein's creative modifications of the classic lodestar method should be particularly influential and useful in future mass tort litigation.
Choosing the Insidious Path: West Virginia University Hospitals, Inc. v. Casey and the Importance of Experts in Civil Rights Litigation
The disallowance of shifting testimony fees to the losing party in civil rights cases impedes access to courts for parties that cannot afford it.
Limiting the Right to a Bias-Free Workplace: A Survey of the Employment Discrimination Decisions of the 1988-89 Term
Discussion of the increasingly difficulty of lititgating employment discrimination cases in light of new Court decisions.
Current Proposals in Congress to Limit and to Bar Court-Awarded Attorney's Fees in Public Interest Litigation
As a corollary, if the obstacles contained in the anti-fee proposals discussed herein are given serious consideration by Congress, and subsequently enacted, it will be unlikely indeed that competent private counsel will be available to represent potential plaintiffs whose rights