Who can quarrel with the notion that settling civil cases is generally a good thing? Litigation is expensive, time-consuming, preoccupying, and often personally destructive. Our courts are overburdened and, in any event, imperfect decision-making entities. It may even be true that, more often than not, “the absolute result of a trial is not as high a quality of justice as is the freely negotiated, give a little, take a little settlement.”
But not every case should be settled. Many are worthless. The settlement of others could too easily lead to a torrent of unwarranted litigation. Sometimes, as Professor Owen Fiss has observed, parties “settle while leaving justice undone.” While few of the settlements I have been involved with can be so described, one has plagued me since I participated in negotiating it twenty-five years ago. Now, in light of very recent and deeply disturbing revelations, it plagues me still more.