Judging consent

This paper was originally presented at a symposium on consent decrees, and appeared in the University of Chicago Legal Forum, Vol. 1987. It explores the growing interest in consent degrees, by which lawsuits are resolved with the issuance of a judgment or decree, entered with the agreement of the parties. Arguments have been made that consent decrees are more economical than adjudicated decrees and achieve greater rates of compliance, but the empirical bases for such claims have not yet been established. The author examines the standard arguments for consent decrees and considers the role of judges in reviewing and entering them. She discusses the fact that judges must rely on the involved parties to present sufficient information for judging the adequacy of an agreement. The author concludes that, in many cases (e.g., class actions), judges must determine the adequacy of either the representation of the decree or of the settlement itself. However, as judicial involvement in crafting settlements grows, the ability of judges to make disinterested determinations of the adequacy of settlements diminishes.