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Solving the Nuisance-Value Settlement Problem: Mandatory Summary Judgment

The nuisance-value settlement problem arises whenever a litigant can profitably initiate a meritless claim or defense and offer to settle it for less than it would cost the opposing litigant to have a court dismiss the claim or defense on a standard motion for merits review like summary judgment. The opposing litigant confronted with such a nuisance-value claim or defense rationally would agree to settle for any amount up to the cost of litigating to have it dismissed. These settlement payoffs skew litigation outcomes away from socially appropriate levels, undermining the deterrence and compensation objectives of civil liability. Yet current procedural rules are inadequate to foreclose nuisance-value strategies. 

Class action is commonly thought to exacerbate the nuisance-value settlement problem to the systematic disadvantage of defendants. This concern has contributed to the growing support among courts and commentators for subjecting class actions to precertification merits review (PCMR), generally understood as conditioning class certification on prior screening of class claims for some threshold level of merit. 

This Article proposes mandatory summary judgment (MSJ) as a solution to the problem of nuisance-value settlement in class actions and in civil litigation generally. Essentially, MSJ denies judicial enforceability to any settlement agreement entered into before the nuisance-value claim or defense has been submitted for merits review on a motion for summary judgment or other standard dispositive motion. Assessing the potential costs of the MSJ solution, we conclude that neither the opportunity for evading MSJ strictures nor the possibility of adding expenses to the settlement of non-nuisance-value litigation outweighs the benefits of MSJ. MSJ will be most cost-effective in the class action context, given the already existing general requirements of judicial review and approval of class action settlements, but MSJ should also prove beneficial in preempting nuisance-value strategies outside of class actions in the standard separate action context.

With the MSJ solution set out, the Article moves finally to offering a more exhaustive analysis of the theoretical soundness and practical efficacy of MSJ in the class action context, where its marginal benefits are arguable the greatest. First, the Article challenges the commonly held belief that class action certification exacerbates the nuisance-value settlement problem, attempting to displace the conventional understanding of complex litigation with a new conceptual framework based on the recharacterization of the class action as part of a continuum of litigation processes rather than an isolated litigation mechanism. Second, the Article provides a comparative analysis of MSJ and PCMR as solutions to the nuisance-value problems that do exist in the class action context, concluding that MSJ presents the superior and more cost-effective option.

Principled Minimalism: Restriking the Balance Between Judicial Minimalism and Neutral Principles

Scholars who grapple with the Rehnquist Court’s activism understandably have relied on the work of those who grappled with the Warren Court’s activism several decades ago. In particular, they have built upon the work of Alexander Bickel, responding to the countermajoritarian difficulty by emphasizing just how much courts should leave unresolved. But this contemporary emphasis on judicial minimalism overlooks half of an important tradition. From the time of the Founding right up until Bickel, judicial power was defended based not only on its narrowness, but also on the expectation that judges would base their decisions on law. The other half of this tradition, captured by Herbert Wechsler in his famous Neutral Principles article, has been largely overlooked. The goal of this Article is to correct the current imbalance between the neutral-principles and minimalist traditions. The Article employs institutional and historical analysis both to cast doubt on the wisdom of the recent shift toward minimalism and to support a jurisprudence of principled minimalism in its place.

The Space Between School Desegregation Court Orders and Outcomes: The Struggle to Challenge White Privilege

This Essay reports on the results of a five-year study of six communities that tried to racially balance their public schools during the 1970s. This research reveals the details that lie between the court orders (or whatever desegregation policy existed) and the student outcome and demographic data that have been captured in quantitative analyses. In the space between the mandates of desegregation and the results, we found that the schools and communities often unwittingly reproduced racial inequality by maintaining white privilege within the context of desegregated schools. Yet at the same time, these schools provided spaces where students and educators crossed the color line in ways they had never done before and have not done since.

This Essay argues that the school desegregation policies that existed in these school districts, though better than nothing, simply were not enough to change the larger society single-handedly. It illustrates how difficult it was for the people in these schools to live up to the goals of school desegregation given the larger societal forces—including racial attitudes and politics, housing segregation, and economic inequality—working against them. It also documents how deeply committed some of these actors, both educators and students, were to trying to bring about change. In this way, the study speaks to larger lessons about the role of schools in society and the uphill but worthwhile efforts of lawyers and judges to use schools as one of very few tools for social change.

Racial inequality and the resultant segregation did not begin in the public schools; thus, we should not expect remedies in the public schools to solve the problem alone. But we can rely on racially diverse public schools—to the extent that current policies allow them to exist—to be important sites in the struggle for a more just society. Lawyers and legal scholars who helped fight for school desegregation and who continue to push for racial diversity in educational settings need to understand this more complex view of the history and reality of school desegregation in the United States in order to move forward with new legal strategies.

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