Tuesday, July 18, 2006

U.C. Davis Law Review Publishes Article Contemplating the Future of Judicial Settlement Conferences

The University of California- Davis Law Review has just published an article by Professor Jeffrey Parness entitled Improving Judicial Settlement Conferences, 39 U.C. Davis L. Rev. 1891 (2006) Here is the Introduction:

Legal academics have long asked how judicial civil case settlement conferences "can be conducted to maximize their usefulness without seriously threatening the appropriate role of judges in formal adjudication." Some have found the threats so significant and the benefits so speculative that they conclude there should be very few, if any, judicial settlement conferences. Though the numbers of such conferences likely will, and should, continue to grow, certain warnings by the critics must be heeded. Even the most ardent supporters of increased managerial judging have expressed concerns about the absence of written guidelines to govern judicial settlement conferences.

While judicial settlement conferencing is here to stay, far too often it is undertaken with unbounded, unbridled, and virtually unfettered trial court discretion. New written guidelines are needed. Unfortunately, federal judicial rulemakers, who have prompted most of the significant civil procedure reforms within American trial courts, beginning with their promulgation of the Federal Rules of Civil Procedure in 1938, have shown little leadership in the area of judicial settlement conferences. Further, notwithstanding the Federal Arbitration Act (and its broad use of Commerce Clause powers), Congress is likely to provide little or no leadership. Fortunately, however, federal and state civil procedure lawmakers interested in new written settlement conference guidelines can look to some local federal district rules, as well as to a smattering of state statutes and court rules, for assistance. In doing so, they should heed critics who warn about the threats judicial settlement conferences pose to the traditional judicial role as well as about the need for participant control and written standards.


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