Uncertainty and the Advantage of Collective Settlement
![handle is hein.journals/deplr60 and id is 631 raw text is: UNCERTAINTY AND THE ADVANTAGE OF
COLLECTIVE SETTLEMENT
Howard M. Erichson*
INTRODUCTION
Judgments are printed in black and white; reality comes in shades of
gray. The settlement palette available to negotiating parties, unlike
the adjudication palette available to judges and juries, offers a range
of grays to suit the realities of uncertain liability, uncertain causation,
and uncertain damages. Settlement thus offers certain advantages
over adjudication. I am not referring to process advantages, such as
speed, economy, privacy, and relationship preservation. Rather, I am
referring to the idea that settlements may offer outcomes that more
accurately comport with justice under the relevant facts and law.
There is, of course, a long-running debate over whether settlement
in general should be embraced or eschewed. Owen Fiss famously de-
clared himself to be against settlement,' and more recently reaf-
firmed his view that [t]he bargaining that normally takes place
between litigants . . . has no connection to justice whatsoever.2
Others, meanwhile, have urged that settlement serves public and pri-
vate values better than adjudication.3
In this Essay, I do not intend to engage that broader debate, al-
though it will be no secret that in many cases I see significant benefits
of settlement.4 Rather, this Essay explores a narrower question:
When numerous claimants assert similar claims against a defendant, to
what extent is justice particularly well served by collective settlement?
Are there advantages of collective settlement that are unavailable
* Professor, Fordham Law School.
1. Owen M. Fiss, Comment, Against Settlement, 93 YALE L.J. 1073 (1984).
2. Owen M. Fiss, The History of an Idea, 78 FORDIHAM L. REV. 1273, 1277 (2009).
3. See, e.g., Samuel Issacharoff & Robert H. Klonoff, The Public Value of Settlement, 78
FORDHAM L. REV. 1177, 1199 (2009); Andrew W. McThenia & Thomas L. Shaffer, Comment,
For Reconciliation, 94 YALE L.J. 1660, 1664 (1985). For a helpful description of the range of
views from litigation romanticists, who nearly always favor adjudication, to ADR evange-
lists, who nearly always favor settlement, see Michael Moffitt, Three Things to Be Against (Set-
tlement Not Included), 78 FORDHAM L. REV. 1203, 1203-04 (2009).
4. See, e.g., Howard M. Erichson, Foreword: Reflections on the Adjudication-Settlement Di-
vide, 78 FORDHAM L. REV. 1117, 1123 (2009); Howard M. Erichson, A Typology of Aggregate
Settlements, 80 NOTRE DAME L. REV. 1769, 1771-80 (2005).
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Uncertainty and the Advantage of Collective Settlement
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