Article

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.

Through the Looking Glass: The Confederate Constitution in Congress: 1861-1865

When the Confederacy died—along with some six-hundred-thousand Americans, Northern and Southern, in one of the greatest man-made catastrophes of all time—the Constitution of the Confederate States died as well. But for a little more than three years, it had served (de facto, if not de jure) as fundamental law for the Southern states. Based on the U.S. Constitution, with alterations designed to reflect the Southern point of view, it provides a tailor-made subject of comparative study: a source of alternative interpretation of often identical terms and a trove of changes in phrasing that cast light on the provisions they were meant to replace or define. From the standpoint of the United States, the entire enterprise was pretty clearly unconstitutional; for Article I, Section 10 flatly forbade any of the United States to enter into “any Treaty, Alliance, or Confederation.” By the time of secession, however, most Southerners—including those like Alexander Stephens who argued against it—believed the Confederacy to be constitutional. They claimed for the Confederacy both the revolutionary legitimacy that the original states had claimed when they asserted their right of self-government against Great Britain and the legal legitimacy that the Constitutional Convention had claimed in abandoning the Articles of Confederation.

The aim of this Article is to examine the Confederate Constitution from the Confederate point of view as one more little-known chapter in the continuing saga of constitutional interpretation in North America. It begins with a description of the Constitution itself. There follows a detailed examination of issues directly pertaining to the Civil War, including the raising and support of armies, with particular emphasis on a remarkable proposal near the end of the war to arm and free slaves. The Article then proceeds to a survey of questions of individual rights, focusing on, among other things, military justice, the suspension of habeas corpus, and the imposition of martial law. Next comes an investigation of separation of powers questions, seen largely through the lens of President Jefferson Davis’s vigorous use of the veto power. The Article then turns to financial and judicial matters, considering, inter alia, the strange case of the missing Supreme Court. A collection of odds and ends completes the constitutional portrait, and the Article closes with a trenchant opinion of the Attorney General on the dissolution of the Confederacy itself.

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