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Glover Posts Article on Federal Civil Settlements on SSRN

Maria Glover, a Climenko Fellow and Lecturer on Law at Harvard, has recently posted an article entitled The Federal Rules of Civil Settlement on SSRN.  Here is the abstract:

The Federal Rules of Civil Procedure were based upon a straightforward model of adjudication: Resolve the merits of cases at trial, and use pre-trial procedures to facilitate accurate trial outcomes. However appealing in principle, this model has less relevance today. As is now well known, the endpoint around which the Federal Rules were structured ? trial ? virtually never occurs. Today, the vast majority of civil cases terminate in settlement. This Article argues that we need a new vision of civil procedure for a world of settlement.

This Article begins by providing a systemic analysis of why the Federal Rules are inadequate to prevent settlement outcomes from being distorted relative to the underlying merits of a given dispute, as defined by reference to substantive law, and further explains how the Rules can actually amplify these distortions. Indeed, notwithstanding the well-worn adage that settlement occurs ?in the shadow of the law,? scholars have shown that non-merits factors exert significant influence on settlement outcomes. Less attention has been given, however, to the ways in which the influence of these factors on settlement outcomes is a product of basic structural features of the Federal Rules themselves. Because of the way in which the Rules were set up to operate, the ?shadow of the law? that is cast on settlements is fading. Further, litigants? increased reliance on prior settlements as ?precedent? for future settlement decisions may move settlement even further out of the ?shadow of the law? and into the ?shadow of settlement? itself.

This Article then traces these problems to three foundational assumptions underlying the Federal Rules, all of which have been undermined by a world of settlement. In rethinking these assumptions, it considers procedural reform proposals that have been offered as discrete solutions to some of these issues, and provides a new conceptual account of these proposals as challenges to these foundational assumptions. This Article also posits that these reform efforts ought to be refined and extended with a specific view toward more systematically redesigning the basic model and operation of the Federal Rules for a world of settlement. This Article then sets forth for further consideration examples of proposals that seek to reorient current rules expressly toward the goal of aligning settlement outcomes with the merits of underlying claims. What emerges is a new vision of procedure ? one in which pre-trial procedural rules do not merely facilitate trial but rather are designed to provide litigants guidance about the merits of claims for purposes of more meaningfully aligning settlement outcomes with the dictates of the substantive law. In so doing, this Article begins to lay the conceptual groundwork for the design of a new Federal Rules of Civil Settlement.

You can download this piece by visiting http://ssrn.com/abstract=1958615.

Full post as published by Federal Civil Practice Bulletin on November 18, 2011 (boomark / email).