Can the Judge Do That? - The Need for a Clearer Judicial Role in Settlement

Abstract

This article addresses several questions raised by the debate over managerial judging, focusing specifically on federal judges' use of managerial judging techniques to facilitate settlement: First, what evidence exists that judges are actively involved in settlement in ways that might be characterized either as abuse or as evidence of bias? Second, what relief have existing judicial processes provided to parties claiming that they have been subject to inappropriate judicial involvement in settlement? Third, are the existing processes adequate both to protect parties from misuse of managerial judging regarding settlement and to give trial judges clearer guidance about their role with regard to settlement? Finally, if the existing processes are not adequate, are there steps that should be taken to decrease misuse of judicial involvement in settlement and to clarify the appropriate role of judges in settlement?