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

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

How much autonomy do you want?

At root, the questions of special accommodation and religious adjudicatory independence arise most urgently when a government grows in its reach and ambition. After all, if most areas of life, including those that touch on religious life, are left to people’s private arrangement, then not much special accommodation will be necessary. But when government takes control over more and more areas of life, regulating who shall do what and under what rules and conditions, then clashes with one or another religious way of life are almost inevitable. The dispute over government mandates to provide abortive drugs and contraception, in the framework of increasing government control and possible takeover of health care in America, is merely a well-known recent example. With a relatively open market in health care and private health insurance, religious institutions needed no special exemptions to adopt their own approaches on questions of contraception and abortion as on other matters. But greatly increased government regulation implies more uniform standards and rules and hence more controversy over whether there should be religious exemptions, and if so, for whom, to what degree, and on what terms. Special accommodation for religion and special adjudicatory powers are problematic for reasons I have tried to suggest. In the long run, especially under less than favorable social circumstances, they might not be workable. If not, then society may ultimately have to choose between big government—an ever-growing and ever-more-powerful administrative and redistributive state—on the one hand, and lively religious pluralism and thriving religious life on the other. This, it seems to me, and not the dubious panaceas of religious exemption and group autonomy, is what religious people and groups ought to fix their attention on

On This Side of the Law and On That Side of the Law

Value pluralism is the idea that legitimate human values and goals are many, often incompatible, and not reducible to any single overarching principle or Good. Value pluralism is probably the central idea - you could say the single overarching idea - in the work of Sir Isaiah Berlin, the English philosopher and historian of ideas. Berlin\u27s theme is that individuals, and societies as well, have ideals and aspirations that conflict, and that therefore cannot all be fully realized. Thus a society cannot have perfect equality and perfect liberty because some people will exercise freedom to differentiate themselves, and hence to make themselves unequal to their fellow citizens. Equality or freedom may be at odds with other values as well, such as tradition, or the desire for social unity, or for social tolerance. Good government may be at odds with self-government, secularism with the desire for common faith, and so on. Value pluralism sees good in many irreconcilable aspirations, ways of life, and public and private choices. What are the implications of value pluralism for law and legal thought? Value pluralism can be invoked, it would seem, on any side, or at least on many sides, or various legal issues