Promoting Settlement, Foregoing the Facts


Some judicial policymakers, including former Chief Justice Burger, some members of the Advisory Committee on Civil Rules, and a few members ofCongress, have been advocating new settlement incentives and mechanisms, and procedural changes to remove certain types of cases, claims, or authority to award compensation from the courts. According to the proponents of these changes, it will be more efficient and less costly, both for the litigants and the courts, if more cases settle earlier, and if some categories of cases, or certain aspects of a claim within a case, are removed from the courts altogether.

What these policy makers propose is a substantial change in the role of our judiciary. They propose to significantly curtail the process of judicial adjudication, and to also curtail (and in many cases eliminate) the fact-finding which is part of that process.’ But the advocates of these changes have not discussed sufficiently the broader impact of curtailing judicial adjudication and fact-finding. This omission is notable, given the rather sizable nature of the changes proposed. The purpose of this article is to encourage discussion of the broader impact of these “case settlement” incentives and “alternative fo-rum” proposals, and in particular to focus attention on the fact that changes of this type are likely to curtail or abrogate judicial fact-finding.

It is the thesis of this article that much of the judicial fact-finding that currently occurs is quite useful-both within the adjudicative process and also in serving other public information, policy, and planning purposes? Very little, however, has been said about the ways in which eliminating or sharply reducing this fact-finding will impact on litigants, the judicial system, and the public. This article suggests that this impact must be discussed openly before steps to curtail judicial fact-finding are taken, since it is likely that the proponents of settlement and nonjudicial forums eschew fact-finding to an extent that will prove problematic.

Part I of the article describes recent instances in which some judicial policymakers have advocated new mechanisms and pressures for case settlements, or the rerouting of some cases or claims to alternative forums with diminished fact-finding, and how these kinds of changes are likely to result in the restriction or elimination of judicial fact-finding. Part II outlines the functions currently served by judicial fact-finding, and analyzes some of the characteristics of this fact-finding. Part III discusses why some judicial policymakers may be willing to sharply curtail or abrogate judicial fact-find-ing, and comments on some of the implications of doing so.

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