Whose judgment? : vacating judgment, preferences for settlement, and the role of adjudication at the close of the twentieth century
A number of issues surround the question of whether a court should vacate either its own decision or the decision of a lower court at parties request so that, with such vacatur on consent, settlement will occur. These issues include the value that should be accorded adjudication; the limits, if any, that should be placed on courts' encouragement and facilitation of settlement; who owns lawsuits, the risks they entail, and the decisions generated in their wake; the meaning of the words "public" and "private" in the context of court decisions; and the proper balance between litigants' autonomy and third-party interests in litigation. This article examines three recent cases in which the judges grapple with the problem of vacatur, considers ways the case law on vacatur illuminates contemporary values about the utility and desirability of adjudication, and describes and appraises the tensions among competing judicial trends. Finally, the author evaluates the current celebration of alternative dispute resolution, and particularly of settlement, and its impact on the understanding of the judicial role.