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Wednesday, March 3, 2010

Symposium Participants Revisit Owen Fiss’ Groundbreaking Paper, Against Settlement

Twenty five years after the publication of Professor Owen Fiss’ famous paper, Against Settlement, the Fordham Law Review held a symposium at Fordham Law School to consider the arguments in Against Settlement in light of developments that have occurred in the last two-and-a-half decades.

Fiss, who is Sterling Professor of Law at Yale Law School, wrote Against Settlement in 1984, at the beginning of the Alternative Dispute Resolution (ADR) movement. The movement focused on settlement as a swifter alternative to adjudication, which could take years and often faced seemingly endless delays. Proponents of ADR claimed that the slow process of adjudication had caused the general population to distrust in the legal system. Fiss, however, argued that settlement was not a viable alternative because it did not promote public values like justice and would undermine the values upheld by the state and its population. Individual interests, he said, would override public values, eventually replacing them with the private determination of social order. For this reason, Fiss declared himself against settlement.

The symposium, held in April 2009, brought together some of the nation’s leading experts in dispute resolution, complex litigation, and public interest lawyering to revisit the topic of adjudication and settlement, and the often-fuzzy line that divides them. It resulted in a number of papers by symposium participants that appeared in the December 2009 edition of the Fordham Law Review. Contributors included Howard M. Erichson, John Bronsteen, Amy J. Cohen, Kenneth R. Feinberg, Samuel Issacharoff & Robert H. Klonoff, Michael Moffitt, Jacqueline Nolan-Haley, the Hon. Jack B. Weinstein, and Owen Fiss.

In his essay, “The History of an Idea,” Fiss summed up his ideas about settlement and adjudication, saying that, after twenty five years, his views still remained the same. “Judges are judges, not brokers of deals,” he wrote. “Judges must, I believe, confine themselves to the core activity of their profession and adhere to the procedures that have allowed them to wear the mantle of the law.”