Whose Judgment? Vacating Judgments, Preferences for Settlement, and the Role of Adjudication at the Close of the Twentieth Century

Abstract

Should a court vacate either its own decision or the decision of a lower court at parties' request so that, with such "vacatur on consent," settlement will occur? Should courts vacate decisions "as moot" when parties settle after those decisions are issued but while petitions for rehearing or certiorari are filed or notices of appeal pending? At first glance, vacatur may seem a narrow issue, of technical interest only. Yet this question, which has recently prompted an extensive debate in case law and commentary, is not for proceduralists alone. Nor is it happenstance that state and federal case law addressing this question has suddenly mushroomed and that the United States Supreme Court has agreed to hear cases with various iterations of this issue. In responses to vacatur on consent lie the central problems of fin-de-siecle procedure: What value should be accorded adjudication? What limits, if any, should there be on courts' encouragement and facilitation of settlement? Who owns lawsuits, the risks they entail, and the decisions generated in their wake? What do the words "public" and "private" mean in the context of court decisions? How should one balance litigants' autonomy and third party interests in litigation?