Judging Consent

Abstract

The subject of this symposium is consent decrees, and I have been asked to think about judges and consent decrees. I have begun to wonder about the very act of a judge entering a consent decree. What is the meaning, for the court, the parties, and the public, of judicial endorsement of parties' agreements? What do we understand that a judge does when she or he transforms an agreement of the parties into a court decree? To explore these questions, I describe the forms of judicial involvement in the consent decree process; I identify the various roles created by custom, rule or statute for judges in formulating, approving, entering, and enforcing consent decrees. Thereafter, I examine the possible reasons for providing consent decrees, and I explore whether and what kind of judicial involvement in the consent decree process is appropriate. My primary interest is in the role of federal judges during the negotiation and entry phases of the consent decree process. Other commentators in this symposium will address questions of implementation, enforcement, and modification of decrees. The examination of the judicial role during the negotiation and entry of consent decrees reveals a problematic, tension-ridden, and vague conception of that role. When entering a consent decree, a person (bearing the title "judge") declines to adjudicate but nonetheless files—and sometimes blesses—parties' agreements, thus giving them a special status. Judging consent is a difficult and, in some instances, impossible task. As a consequence, I have some skepticism about reliance upon judicial role to validate the practice of providing consent decrees. However, my concerns about the role of the judge do not decide the ultimate issue of the propriety or utility of having consent decrees as an option when concluding some or all kinds of cases. Other commentators—in this symposium and elsewhere—have made claims for consent decrees. What I offer is analysis of whether judicial involvement with consent decrees can be the source of their legitimacy.