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.
Originally published in: UCLA Law Review, v. 41, no. 6, August 1994, pp. 1471-1539.
This report is part of the RAND Corporation Reprint series. The Reprint was a product of the RAND Corporation from 1992 to 2011 that represented previously published journal articles, book chapters, and reports with the permission of the publisher. RAND reprints were formally reviewed in accordance with the publisher's editorial policy and compliant with RAND's rigorous quality assurance standards for quality and objectivity. For select current RAND journal articles, see External Publications.
Our mission to help improve policy and decisionmaking through research and analysis is enabled through our core values of quality and objectivity and our unwavering commitment to the highest level of integrity and ethical behavior. To help ensure our research and analysis are rigorous, objective, and nonpartisan, we subject our research publications to a robust and exacting quality-assurance process; avoid both the appearance and reality of financial and other conflicts of interest through staff training, project screening, and a policy of mandatory disclosure; and pursue transparency in our research engagements through our commitment to the open publication of our research findings and recommendations, disclosure of the source of funding of published research, and policies to ensure intellectual independence. For more information, visit www.rand.org/about/principles.
The RAND Corporation is a nonprofit institution that helps improve policy and decisionmaking through research and analysis. RAND's publications do not necessarily reflect the opinions of its research clients and sponsors.