05 March 2009

Three Cheers For Owen Fiss

Owen Fiss is the author of one of my personally favorite law review articles of all time, entitled "Against Settlement," 93 Yale L.J. 1073 (1984). Fordham Law School is having an all day seminar on the article on April 3, twenty-five years later, featuring Owen Fiss and many other law faculty who have engaged with the arguments he made in that article.

In 1984, Owen Fiss provocatively argued that the ADR movement overvalued settlement, that adjudication serves a purpose greater than dispute resolution, and that "[c]ivil litigation is an instrument for using state power to bring a recalcitrant reality closer to our chosen ideals." Against Settlement, 93 Yale L.J. 1073 (1984). What do we make of his arguments twenty-five years later? In the intervening years, the dispute resolution field has matured, public interest lawyering has changed, aggregate litigation has grown with comprehensive resolution as an expected endgame, and global perspectives on litigation have become more prominent, shedding new light on the arguments Fiss raised.

The Fordham Law Review has assembled a remarkable group – many of the nation’s leading voices in ADR, complex litigation, and public interest lawyering – for a one-day symposium to reconsider questions of settlement and adjudication in civil litigation.

I have long argued that the courts should be, and are, in the business of rights enforcement and not dispute resolution.

A useful list of classic law review articles from the Yale Law Journal appears here.

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