Judging Consent

• NCJ Number: 117197
• Author(s): J Resnik
• Date Published: 1986
• Length: 60 pages
• Sale Source: National Institute of Justice/; Rand Corporation; NCJRS Photocopy Services
• Publication Type: Legislation/Policy Analysis
• Language: English
• Country: United States of America
• Note: Presented at a symposium on consent decrees, sponsored by the University of Chicago legal Forum and held at the University of Chicago in fall 1986.

Annotation

This essay explores the history and practice of consent decrees and examines the judge's role in approving and entering those decrees.

Abstract

'Consent decrees' and 'consent judgments' refer to agreements that parties have consented to and that a judge has entered (typically by writing 'so ordered' and by signing her/his name) as an order of the court. This essay first describes the forms of judicial involvement in the consent decree process, identifying the roles created by custom, rule, or statute for judges in formulating, approving, entering, and enforcing consent decrees. After examining the possible reasons for providing consent decrees, the essay explores whether and what kind of judicial involvement in the consent decree process is appropriate, with a focus on the role of Federal judges during the negotiation and entry phases of the consent decree process. The essay concludes that the judges are ill-equipped to do much more than agree when the litigants join together and seek court approval. Judges may, in a few limited situations, be able to determine the fact of consent or the adequacy of the bargaining process. Judges cannot, absent conflict between the parties, determine much about the legality or the quality of the compromises made. The utility and legitimacy of consent decrees must, therefore, come from explanations other than the quality of judicial involvement with consent decrees at the time of their entry. 209 footnotes.