The classic adjudicatory paradigm of opposing attorneys facing off at trial before a judge and jury in order to receive a favorable judgment is an image long past. Increased litigation volume, and the added time and expense of modern litigation has resulted in a rich practice of judges working to broker settlements between litigants in lieu of formal adjudication. Judicial settlement is the subject of much debate, however, and the diverse range of judicial practice in this area reflects the institutional, ethical, and jurisprudential uncertainties we still have regarding the propriety of judges facilitating settlements. This paper offers a new perspective on the jurisprudential issues underlying judicial settlement practices by exploring the traditional Jewish law of judicial settlement practice. The paper begins by reviewing the state of judicial settlement practices in American courts today. It starts with a brief history of alternative dispute resolution in the Federal courts and continues with a general overview of how judges work to facilitate settlements in practice. It next explores the jurisprudential roots of the debate over judicial settlement by presenting three principle approaches to the goals of the judicial process and the propriety of judges engaging in settlement. Turning to the traditional Jewish law of judicial settlement, it provides some necessary background about the Jewish legal system, discussing how Jewish law courts can resolve disputes through adjudication or settlement. The paper continues by exploring a jurisprudential argument about judicial settlement recorded in the Talmud, and then by reviewing some of the practical rules about when Jewish law judges may encourage parties to settle. Finally, it concludes by inductively developing a Jewish law jurisprudence of judicial settlement.
Jewish Law Perspectives on Judicial Settlement Practice,
20 Pepp. Disp. Resol. L.J.
Available at: https://digitalcommons.pepperdine.edu/drlj/vol20/iss2/5