The New Meaning of Rule 68: Marek v. Chesny and Beyond


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.

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