Jump to ContentJump to Main Navigation
Show Summary Details
More options …

Theoretical Inquiries in Law

Editor-in-Chief: Klement, Alon

CiteScore 2017: 0.49

SCImago Journal Rank (SJR) 2017: 0.345
Source Normalized Impact per Paper (SNIP) 2017: 0.727

See all formats and pricing
More options …
Volume 15, Issue 1


Rethinking Settlement

Leora Bilsky / Talia Fisher
Published Online: 2014-02-19 | DOI: https://doi.org/10.1515/til-2014-005


In his canonical articles Against Settlement and The Forms of Justice, Owen Fiss argues that the erosion of civil litigation harms the deliberative process and the elucidation of public values in society. By revealing the hidden public dimension underlying not only public law litigation, but also the adjudication of private law disputes, Fiss’s argument can be conceptualized as posing a challenge to the public/ private distinction. At the same time, Fiss’s critique reinforces the public/private divide by placing settlement and civil litigation on either side of the borderline. In this Article, we set out to dispel the prevalent depiction of settlement as inherently private, and to challenge the binary logic of the private/public distinction as it is understood to apply to settlement. We show how settlements have the capacity to fulfill each and every one of the public functions attributed to the civil trial, including the elaboration of norms, the discovery of facts, the facilitation of democratic participation, and the creation of public narratives. The functional, process-oriented approach we offer depicts settlement as a device that does not stand in opposition to the promotion of rule of law values - but rather as an institution that enhances the articulation of public norms. Our discussion progresses against the background of three settlement arenas: settlement in the classic civil suit context, structural reform suits, and transnational Holocaust litigation.

About the article

Published Online: 2014-02-19

Published in Print: 2014-01-01

Citation Information: Theoretical Inquiries in Law, Volume 15, Issue 1, Pages 77–124, ISSN (Online) 1565-3404, ISSN (Print) 1565-1509, DOI: https://doi.org/10.1515/til-2014-005.

Export Citation

© 2014 by Walter de Gruyter GmbH & Co..Get Permission

Comments (0)

Please log in or register to comment.
Log in