Consent Decree Paradigms: Models without Meaning
![handle is hein.journals/bclr29 and id is 297 raw text is: BOSTON COLLEGE
LAW REVIEW
VOLUME XXIX MARCH 1988 NUMBER 2
CONSENT DECREE PARADIGMS: MODELS
WITHOUT MEANINGt
Thomas M. Mengler*
In the typical civil suit - one in which the plaintiff seeks money damages from the
defendant - settlement lies entirely in the parties' hands. If the parties choose to settle,
the trial court plays essentially no role.' In contrast, in some special settlement situations,
a statute or rule requires the trial court to approve the terms of a settlement.2 One
example is the court's role in approving a proposed class action settlement. Pursuant to
Rule 23 of the Federal Rules of Civil Procedure, trial courts have required class action
settlements to be fair, adequate, and reasonable before approving them.3 Although some
critics question a trial court's ability to evaluate the adequacy of a class action settlement,4
no one seriously contests that the court must perform this function in order to protect
the interests of the absent classmembers who will be bound by the settlement.
t Copyright © Boston College Law School 1988.
* Assistant Professor of Law, University of Illinois. B.A. 1975, Carleton College; M.A. 1977,
University of Texas; J.D. 1981, University of Texas. I wish to thank Gerry Bradley, Steven Harris,
Richard Marcus, and Stephen Ross for useful conversation and comments about this Article. I also
appreciate the help of my research assistant, Greg Kazarian.
' Rule 41 of the Federal Rules of Civil Procedure allows the court to dismiss any suit, other
than a class action suit, shareholder derivative suit, or bankruptcy action, at any time by the consent
of all parties. FED. R. Civ. P. 41. A voluntary dismissal by stipulation of all parties is effective
immediately and does not require the court's approval. 9 C. WRIGrr & A. MILLER, FEDERAL PRACTICE
AND PROCEDURE § 2363, at 160 (1971).
Sometimes parties to a suit for damages, rather than dismissing and settling privately, will file
their settlement with the court. The court maintains jurisdiction over the case in order to ensure
that the damages are paid. Some have termed this arrangement a consent judgment, see, e.g., Janus
Films, Inc. v. Miller, 801 F.2d 578, 582 (2d Cir. 1986), rather than a consent decree, which contains
injunctive relief. The court's role regarding consent judgments is limited, amounting in most cases
to a rubber-stamp. Id.
2E.g., FED. R. Civ. P. 23(e) (class action suits); FED. R. Civ. P. 23.1 (shareholder derivative
suits).
3 Rule 23(e) articulates no standard for approving class action settlements, but states only that
[a] class action shall not be dismissed or compromised without the approval of the court. FED. R.
Civ. P. 23(e). The common law standard that a class action settlement must be fair, adequate, and
reasonable serves Rule 23(e)'s purpose of protecting the interests of absent classmembers. See, e.g.,
Williams v. City of New Orleans, 729 F.2d 1554, 1559-60 (5th Cir. 1984); Girsh v. Jepson, 521 F.2d
153, 157 (3d Cir. 1975); Baksalary v. Smith, 591 F. Supp. 1279, 1284 (E.D. Pa. 1984).
4 E.g., Fiss, Against Settlement, 93 YALE L.J. 1073, 1081-82 (1984) (arguing trial court's task is
often impossible without benefit of full trial).](ViewImageLocal?handle=hein.journals/bclr29&div=12&collection=&method=preview&ext=.png&size=3)
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Consent Decree Paradigms: Models without Meaning
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