Friday, May 16

Justices seek justice, not peace*

Just 3 years after Fisher & Ury's Getting to Yes started us on a journey most readers of this blog are yet to complete, Yale University's Owen Fiss delivered his powerful 1984 polemic Against Settlement (I'm far too promiscuous with my must reads but this is a must, must read).

In it he argued that settlement was the 'civil analogue of plea bargaining'.

Fiss decried the imbalances of power that he saw inherent in the mediation process as well as the absence of authoritative consent, the lack of foundation for continuing judicial involvement and "justice rather than peace"

In hindsight he's way off the mark and whilst there are pressing issues in our field these, in my view, are not some of them; but it's an impressive piece and Fiss made a beeline for some of the very matters that would preoccupy us for the next 25 years.

And I mention it for those who want weekend reading on the back of my recent post linking to Gillian Hadfield's Framing the Choice between Cash and Courthouse: Experiences with the 9/11 Victim Compensation Fund and the thoughtful comments posted there.

But t
hese are big issues and hard to deal with in a blog posting.

For completeness however, I also mention Justice Trumps Peace: the Enduring Relevance of Owen Fiss's Against Settlement.

* Fiss, The Law As It Could Be
Hat tip to Tony Willis

1 comment:

Michael Moffitt said...

If the Owen Fiss article is a "must read," then I'd suggest Jeff Seul's article, "Settling Significant Cases" as a "must read companion." Seul's article is, I believe, the most thoughtful and thorough response to Fiss.

I believe it is available at:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=493122

Its citation, for those with access to a law library or Westlaw or Lexis, is Jeff Seul, Settling Significant Cases, 79 Wash. L. Rev. 881 (2004).

Michael Moffitt