Still Against Settlement?

This chapter reassesses Owen Fiss’ classic challenge to the legitimacy of settlement as a reasonable goal, and method, of dispute resolution in any jurisdiction. The chapter begins by analyzing a recent paper by Levmore and Fagan, which explicitly argues against Fiss and in favor of settlement (and confidentiality in settlements in particular) as an effective tool for the social protection of a significant class of rights and interests. Surprisingly, this chapter finds that these two, radically alternative, ways of conceiving the value of formal litigation (and, conversely, the value of confidential ways of managing dispute resolution) share important and reasonable ground—indeed, Levmore and Fagan’s more systematic take on the strategic interactions of litigating parties (either actual or potential) in a wide set of disputes and quarrels reasonably explains at least one big concern, which Fiss had with settlement (and judges’ support of it) as a general practice of dispute resolution. Forty years on, Fiss’ biggest worries about settlement are still justified, however. The most critical point, this Chapter argues, is to distinguish between cases in which one party is engaging in an individual patter of wrongdoing, from cases in which the party is engaging in a social pattern of wrongdoing.