Settlement Agreements and the Supreme Court

In 1994, the Supreme Court decided three cases-Kokkonen v. Guardian Life Insurance Co. of America, Digital Equipment Corp. v. Desktop Direct, Inc., and U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership-that involved issues relating to settlement agreements. In resolving the issues in these cases, the Court gave surprisingly little weight to the long-standing public policy favoring the private settlement of disputes. In her Article, Professor Cordray reviews these important recent decisions, focusing on the Court\u27s dismissive treatment of the policy favoring settlement. Professor Cordray then considers more thoroughly both the significance of the policy and its place in the legal analysis of issues involving settlements. In particular, she suggests that because the policy serves important institutional interests, it is more than a narrow concern that focuses on the interests of the specific parties in settling their case; instead, it is a substantial public policy that should receive more careful attention than the Court gave it in these decisions. Finally, in an effort to suggest how other legal issues involving settlements should be approached in future cases, Professor Cordray analyzes two further issues concerning settlement agreements that have troubled the lower courts

The Philosophy of Certiorari: Jurisprudential Considerations in Supreme Court Case Selection

In this Article, we offer a fuller jurisprudential analysis of the gatekeeping choices that the Justices make as they set the direction in which the Court will proceed. Using more recent data that we gathered from the docket books of Justices Brennan and Marshall, we show that rule-based and strategic factors, while undeniably important, cannot adequately account for the Justices’ voting behavior at the certiorari stage. Although the Justices consider the very same cases and materials, in light of the same criteria set out in the Court’s rule, they come to quite different conclusions about which cases merit plenary review. Even Justices closely aligned in decisions on the merits often have dramatically different voting records on certiorari. We suggest that other, more jurisprudential considerations also affect the individual Justices’ judgments about the quantity and content of the Court’s proper workload. In particular, we contend that a Justice’s views about what role the Supreme Court should play in the judicial system and American life—including his or her views on the nature of precedent, the importance of uniformity in federal law, and the Court’s appropriate role in effectuating social change—play a central role in shaping his or her decisions about case selection

The Solicitor General\u27s Changing Role in Supreme Court Litigation

Over the last two decades, as the Supreme Court has sharply cut back its case load, the Solicitor General has wielded the tremendous influence that comes with being the Court’s most frequent and successful litigant in new ways. In this Article, the authors examine both the causes and consequences of these changes, which have diminished the Solicitor General’s role at the certiorari stage and expanded it at the merits stage. They find that at the certiorari stage, when the Court is selecting its cases and setting its agenda, the Solicitor General is now seeking certiorari in so few cases—just fifteen per Term—that the Solicitor General is ceding the federal government’s once-substantial influence over the Court’s agenda-setting to more aggressive litigants. At the merits stage, in contrast, the Solicitor General is now participating in over three-quarters of the Court’s cases, and is doing so more frequently as amicus curiae than as a party. The authors address concerns that, with this nearly pervasive involvement, the Solicitor General may have become too intrusive in private litigation or too partisan in cases presenting high-profile, socially controversial issues. They find, however, that solicitors general have acted within their proper constitutional role, largely confining involvement as amicus to cases that directly and substantially affect the federal government’s institutional interests

Setting the Social Agenda: Deciding to Review High-Profile Cases at the Supreme Court

This is the published version