Just over 40 years ago, Owen Fiss wrote his famous article Against Settlement, arguing that settlement was bad public policy. While the article has long served as a foil for dispute resolution academics, it is a good read — especially if you disagree with it, as do some of the commenters in the first volume of Discussions in Dispute Resolution: The Foundational Articles. The article also spawned a number of law review articles adopting the “against something” format, my favorite of which is likely Michael Moffitt’s Three Things to Be Against (“Settlement” Not Included).
Fiss’s article came to mind earlier this month when word broke of the $1.8 billion settlement fund stemming from President Trump’s claims against the IRS. There are many reasons to be against this settlement: the self-dealing inherent in a president suing his own administration; the case having been filed years after the statute of limitations had run; and proposed remedies — including compensation for Trump supporters, among them January 6th rioters — that have little to do with the actual claims against the IRS. All of this runs contrary to the rule of law, bringing to mind Chief Justice Roberts’s recent warning about the rule of law being in danger. Public sentiment has been against the settlement from the start, and prominent members of Trump’s political party are now voicing their opposition as well.
Because the case was voluntarily settled and withdrawn, the presiding federal judge initially allowed it to proceed like most civil settlements. Now, however, the settlement is on hold. The tipping point appears to be a motion filed by 35 retired federal judges arguing that Trump’s legal team engaged in fraud upon the court. A second federal court — overseeing a related case brought by individuals claiming to have been targeted by the Trump administration — has also put the settlement on hold, while questioning whether disbursements of this kind require congressional authorization, among other concerns.
Trump has long been celebrated for his negotiation skills, but on closer examination his prowess amounts to exploiting leverage wherever he finds (or creates) it. And, sitting presidents have no shortage of leverage or means to manipulate it. However, in our system of checks and balances, the courts serve as a not-quite-foolproof backstop. Perhaps Trump’s team was counting on no one having standing to challenge the settlement, or on a sympathetic district court judge followed by no avenue for appeal. Whatever the calculation, the public should be grateful to the 35 retired federal judges for sounding the alarm: using the courts to manufacture the appearance of a legitimate settlement, when neither the substance nor the process supports it, is a serious problem – and worth being against.
