Public Law by Private Bargain: Title VII Consent Decrees and the Fairness of Negotiated Institutional Reform

Abstract

Large-scale Title VII remedies are typical of public law litigation, which differs in kind from the conventional compensatory lawsuit. Title VII remedies are commonly adopted by way of consent decrees. By approving these consent decrees, federal courts take responsibility for extensive institutional reforms while acting independently of the adversary process. Courts have frequently approved consent decrees without fair hearings for those whose interests are at stake. Professor Schwarzschild suggests a systematic procedure for approving Title VII consent decrees. This procedure would not discourage settlements, but would ensure that courts act on the basis of fair hearings, consistently with the quasi-legislative character of public law remedies