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Aconsent decreeis an agreement orsettlementthat resolves a dispute between two parties withoutadmission of guilt(in acriminal case) or liability (in acivil case). Most often it is such a type of settlement in theUnited States.[1][2]Theplaintiffand thedefendantask the court to enter into their agreement, and the court maintains supervision over the implementation of the decree in monetary exchanges or restructured interactions between parties.[2][3][4][5]It is similar to and sometimes referred to as anantitrust decree,stipulated judgment,orconsent judgment.[5][6][7]Consent decrees are frequently used byfederal courtsto ensure that businesses and industries adhere to regulatory laws in areas such asantitrust law,employment discrimination,andenvironmental regulation.[3][8][9]

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The process of introducing a consent decree begins with negotiation.[5]One of three things happens: alawsuitis filed and the parties concerned reach an agreement prior toadjudicationof the contested issues; a lawsuit is filed and actively contested, and the parties reach an agreement after the court has ruled on some issues; or the parties settle their dispute prior to the filing of a lawsuit and they simultaneously file a lawsuit and request that the court agree to the entry ofjudgment.[5][10][11]The court is meant to turn this agreement into a judicial decree.[11][12][13][14]In many cases, the request for entry of a consent decree prompts judges to sign the documents presented then and there.[5][13]In some cases, however, such ascriminal cases,the judge must make some sorts of assessments before the court's entry of the agreement as a consent decree.[5]

The usual consent decree is not self-executing.[12]A consent decree is implemented when the parties transform their agreements from paper to reality.[5][11][15]The judge who signed the decree may have no involvement or may monitor the implementation.[5][13]The judge can only step in to assist in enforcement if a party complains to the court that an opponent has failed to perform as agreed.[5]In this case, the offending party would be committed forcontempt.[12]

Decrees by consent are morebindingthan those issuedin invitum,or against an unwilling party,[16]which are subject to modification by the same court, and reversal by higher courts.[12]The decree issued by consent cannot be modified, except by consent. If the decree was obtained by means offraudor given by mistake, it may be set aside by a court.[12]Errors of law or of inferences from the facts may invalidate it completely.[12][13]

Typically, a consent decree dispenses with the necessity of having proof in court, since by definition the defendant agrees to the order. Thus, the use of a consent decree does not involve asentenceor an admission of guilt.[12][17][18]Likewise, the consent decree prevents afinding of facts,so the decree cannot be pleaded asres adjudicata.[11][12][19]

History

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Because judicial decrees are part of government civil enforcement in settlements that two parties typically agree to beforelitigationis filed, they act as a hybrid between ajudicial orderand asettlementwithout a party conceding criminal responsibility.[9][20]

Frederick Pollock and Frederic Maitland describe how courts during the 12th century ofMedieval Europeused "fines" as a form of court orders to settle land disputes among litigants with the punitive power and legitimacy of courts through the use of consent decree.[5][21]In the United States, 19th and 20th century legal treatises[22][23][24]show that consent decrees and the role of the court in the parties' settlement was ambiguous. The 1947Corpus Juris Secundumdeclares that although consent decrees are "not the judgment of the court", they do have the "force and effect of a judgment".[5][25]

Federal Rules of Civil and Criminal Procedure

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TheFederal Rules of Civil Procedureand theFederal Rules of Criminal Procedure,which both went into effect in 1938,[5]lay many of the legal foundations that govern the use of consent decrees.[26][27]Creating space for courts, which are important actors in implementing a consent decree, to enter into a settlement,Rule 23[28]of theFederal Rules of Civil Proceduregivesfederal district courtsthe power to approveclass actionsettlements as long as they are "fair, reasonable, and adequate".[5][9][26]Rule 54(b) definesjudgment,which refers to consent decree, and allows the court to "direct entry of a final judgment" when multiple parties are involved,[29]and Rule 58 describes the procedure of how parties may enter judgment.[30][31]Additionally, Rule 60 describes conditions under which parties can be granted "relief from a judgment or order" (such as a consent decree).[32][33]As Rule 48 in the Federal Rules of Criminal Procedure stipulates that dismissals in criminal cases may not occur without "leave of court",[5][34]Rule 41 allows, if all the parties agree, the court to dismiss any suit besidesclass action suits,shareholder derivative suits,or bankruptcy action.[6][35]Many of these rules create the space for consent decree by establishing the role of judges within the settlement of two parties.[26][36]

Precedents

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Many of the early court cases involving consent decree set precedents for the roles that judges would play in the negotiating, approving, interpreting, and modifying a settlement between two parties.[5][9][27]The role of the judge in regard to consent decree wavers between "rubber stamping" versus applying their own judgments to a proposed settlement.[9][37]In 1879,Pacific Railroad of Missouri v. Ketchumbound the court's role in consent decrees to simply supporting to an agreement that parties have already established on their own.[5][38]In regard to antitrust decrees, the first consent decree used in antitrust regulation under theSherman Antitrust ActwasSwift & Co. v. United States.[39][40]WithSwift & Co. v. United States,the Supreme Court ruled that a consent decree could be modified or terminated only when new developments over time bring out a "grievous wrong" in how the ruling of the consent decree affects the parties of the suit.[39][41][31]The Supreme Court supported this limited flexibility of consent decrees inUnited States v. Terminal Railroad Association:"[A] decree will not be expanded by implication or intendment beyond the meaning of its terms when read in the light of the issues and the purposes for which the suit was brought."[6][42]

In 1968, the Supreme Court ruled inUnited States v. United Shoe Machinery Corp.,that to promote finality, a court's changes to consent a decree should be rare—but the courts can modify a consent decree or frameinjunctiverelief to ensure the litigation achieves its purpose.[6][43]Before a judge can enter a consent decree, according to the rulings inFirefighters v. City of Cleveland[6][44]andFirefighters v. Stotts[45]they must havesubject-matter jurisdiction,and they cannot modify a consent decree when one of the parties objects.[5][46]The Supreme Court's position on how much authority a judge possesses in regard to influencing how the settlement is agreed upon is conflicting. InFirefighters v. City of Cleveland,the Supreme Court ruled that consent decrees "have attributes both of contracts and of judicial decrees", so consent decrees should be treated differently for different purposes.[9][31][44]InRufo v. Inmates of Suffolk County Jail,[47]the Supreme Court decided that courts could take into account the changing times and circumstances for more flexibility in the administration of consent decrees.[31][41]

In regard to litigation inperformance rights organizationssuch asAmerican Society of Composers, Authors and PublishersandBroadcast Music, Inc.inUnited States v. ASCAP,which began in 1941, theDepartment of Justiceused consent decrees (which are amended according to the times and technology) to regulate how they issued blanket licenses to ensure that trade is not restrained and that the prices of licenses would not be competitive.[48][49][50][51]The Department of Justice reviewed the music consent decrees starting 2019, and issued a statement in January 2021 that they would not be terminating them as they still offered several efficiencies in music licensing that maintained benefits to the artists.[52]

Most frequent uses

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Antitrust law

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Violations ofantitrust laware typically resolved through consent decrees, which began to be more widely used after 1914 with the enactment of theClayton Antitrust Act.[53]This act began to address the complexities of antitrust economic regulation[54]by recognizing the use of consent decrees as a method for the enforcement of federal antitrust legislation.[55][54]In amending the antitrust statutes laid out in theSherman Antitrust Act(1890) and its supplement, theClayton Antitrust Act(1914),[48]theTunney Actfurther specified how consent decrees could be used by establishing that the courts must demonstrate that consent decrees serve the "public interest" in antitrust cases filed by theJustice Department.[5][9][41][56]In regard to antitrust decrees, the first consent decree used in antitrust regulation under theSherman Antitrust ActwasSwift & Co. v. United States[40]in which the Court used its power under theCommerce Clauseto regulate the Chicago meat trust as an unlawful economic monopoly.[39][57]InStandard Oil Company of New Jersey v. United States,the government used consent decrees to dissolve thehorizontal monopolythatJohn D. Rockefellerhad established.[58][39][41]Other examples of antitrust consent decrees can be found in a wide range of areas, including their involvement in corporations specializing in technology,[59][41]the film industry,[60][61]and the motor vehicle industry.[9][62][63]

Structural reform

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School desegregation

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The effort todesegregateAmerican public schools began in 1954 withBrown v. Board of Education.ThislandmarkSupreme Court case established that racial segregation of children in public schools was in violation of theEqual Protection Clauseof theFourteenth Amendment,which requires that states must not "deny to any person within its jurisdiction the equal protection of the laws".[64]To properly enforce this legislation, the Supreme Court allowed district courts to use desegregation decrees obligating states to actively transition into racially nondiscriminatory school systems, with "all deliberate speed".[65]Since the original decree did not include specific ways this could be done, beginning withSwann v. Charlotte-Mecklenburg Board of Educationin 1971, the Supreme Court specifically defined the objective as eliminating "all vestiges of state imposed segregation"[66][full citation needed]within school systems, including the limited use ofbusing,[67][68]racial quotas,[69]the creation ofmagnet schoolsand judicial placement of new schools,[70]and the redrawing of school attendance zones.[71]To stop judicial intervention in schools and end the consent decree through a court order, districts must demonstrate desegregation within six criteria defined in theGreen v. County School Board of New Kent County[72]ruling – which include, student assignment, faculty, staff, transportation, extracurricular activities, and facilities.[73][74]

Police use of violence

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Consent decrees have been signed by a number of cities concerning their police departments'use-of-forcepolicies and practices,[75]includingChicago,New Orleans,[76]Oakland,[77]Los Angeles(whose consent decree was lifted in 2013),[78]Baltimore,[79]Ferguson, Missouri,[80]Seattle,[81]Portland,andAlbuquerque.[82]On June 16, 2023, Minneapolis officials promised to enter into negotiations for a consent decree to be enforced by the DOJ in response to a scathing June 2023US Department of Justicereport resulting from a multiyear federal investigation into the "patterns and practices" ofMinneapolis Police Departmentfollowing theMay 25, 2020murder of George Floydby MPD officers.[83][84]

Public law

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Consent decrees have been used to remedy various social issues that deal with public and private organizations, where a large number of people are often concerned even if they may not be members of either party involved.[85]Examples have includedTitle VII of the Civil Rights Act of 1964,theAmericans with Disabilities Act,and environmental safety provisions.

Actions under Title VII of the Civil Rights Acts of 1964

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Title VII of the Civil Rights Act of 1964 prohibits discrimination by employers on the basis of race, sex, color, religion, or national origin.[86]Most often, the remedies to workplace discrimination carried out under this Act take place in the form of consent decrees, where employers may have to provide monetary awards or introduce policies and programs that eliminate and prevent future discrimination.[87][88]These may include decrees that require the creation of new recruitment and hiring procedures to gain a more diverse pool of job applicants,[89][90]upgrading job and promotion assignment systems,[91][92]or offering training programs focusing on discrimination and diversity.[93][94]Under theCivil Rights Act of 1964,theEqual Employment Opportunity Commission(EEOC) was created to be a major advocate and enforcer of the previously mentioned Title VII remedies.[95]In a landmark decision in 1973, the EEOC,Department of LaborandAT&Tcompromised on a consent decree that phased out discrimination within recruiting, hiring and employment methods in regard to minorities and women.[96]This established a precedent for other large, private U.S. companies to avoid litigation and government oversight by creating decrees in cooperation with Title VII.[97][98]

Americans with Disabilities Act

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The Americans with Disabilities Act (ADA) was a civil rights law passed in 1990 that prohibits discrimination and ensures that people with disabilities have equal access to the opportunities and benefits available to the wider American population.[99][100]Institutions that violate the requirements of the ADA enter consent decrees typically resulting in a payment from the corporation to those wronged, which may serve to discourage future discrimination, in addition to a change in policy to avoid future payouts.[101]Examples of altered practices through the use of a decree have included restructuring building property[102][103]or the removal of barriers[104]to allow for physical accessibility for all persons, providing supplemental communication tools such assign language interpreters[105]for those that are hard of hearing, and eliminating discriminatory practices against those that have a disability.[106]

Environmental law

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Consent decrees have been used to alter environmental policy, one example being the "Flannery Decision", or the Toxics Consent Decree, entered into by theEnvironmental Protection Agencyand theNatural Resources Defense Council,an environmental advocacy group.[107]This decree, signed in 1976, highly restructured the way the EPA dealt with harmful substances by requiring the agency to list and regulate 65 toxic pollutants and to regulate pollutant discharges on an industry-by-industry basis (i.e.,effluent guidelinesregulations) rather than by singular pollutants.[108][109]This decree went on to shape the regulations and administration procedures of water policy within the United States, particularly through theClean Water Act.[110][111]

Effects

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Scholars find advantages and disadvantages to using the consent decree.[112][113][114]In addition, consent decrees can affect those outside of the litigants, such as third parties andpublic interests.[115][116][117]

Advantages and disadvantages

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The following are advantages of using consent decrees:

  • Save financial costs oflitigation:Consent decrees forgo acourt trialthat allows for both parties and the courts to savelegal expenses.[118][119][115][120][18][121]
  • Save the time of prolonged litigation: The parties and the courts save the time it would take for a court trial to occur[120]and the courts more quickly clear theirdockets.[122][123]
  • Ability to get results of atrial:The parties are able to obtain similar results of a court trial, specifically where a change is required to appease the dispute.[124][125]
  • Parties avoid the uncertainties of a trial: Consent decrees forgo a trial and its unknown outcome, the necessity ofproof,and anyguiltis taken for granted (because no one is accused by the consent decree).[118][119][124][120][18][123]
  • Parties have control of the remedial plan: Consent decrees allow both parties to have greater latitude in deciding how to remedy their issues.[118][115][126][123]This is an advantage "because the parties, not the court, determine the remedy, [and] the assumption is that the remedy is better suited to the parties' needs".[127]
  • More compliance and authoritativeness: Both parties more voluntarily implement their agreements if obtained by consent than by force.[128][129]Moreover, to fail to act under the consent decree seems to be more aviolationof the "law"than if under acontractbecause the parties are "bound" and not "obligated"by the consent decree.[128][130]Its authoritativeness is reinforced by the practice that a return to court for a consent decree has a priority in the court queue.[128]
  • Sustainedjudicial oversightandinterpretation:Courts can supervise that consent decrees are upheld for an indefinite period of time.[131][132][123]

In contrast, the following are disadvantages of using consent decrees:

  • Duration: Some argue that "consent decrees often last for too long a period".[132]Although consent decrees are a solution to a particular issue, the context around that issue or the issue itself may change.[132][133][118]However, the consent decree is neither as easy to modify nor adapt and thus can become inadequate.[132][133]
  • Ambition: Consent decrees can be an avenue for those seeking to enact a future-oriented change that is more general and not case-specific.[132][134][135]Consent decrees are thus used "as a tool of enforcement [that is] less expensive, and sometimes more far-reaching, thanadjudication",[122]especially inantitrustcases and those involvingpublic institutions.[132][136]
  • Complexity: Consent decrees can be complex in questions of modification, either before[137]or after[132][133]it is enacted: "the decree issued by consent cannot be modified, except by consent. Only where the consent has been obtained by fraud or given by mistake will a bill be entertained to set it aside".[138]
  • Ambiguity: There is ambiguity in the source of power of the consent decree,[139]the role of judges,[136]and the guidelines for a consent decree.[139]Some see that "neitherjudges,lawyers,norpartiesknow exactly what they give or get when a consent decree is entered... [which may bear] testimony to the negative consequences of the ambiguity that surrounds consent decrees ".[140]

Third parties and public interests

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The consent decree can impact those outside of theparties,who resolve their disputes with a consent decree, especially in settlinginstitutionalreform andantitrustcases.[118][141][142]FromRufo v. Inmates of the Suffolk County Jail[47]andSwift & Co. v. United States,[39]theSupreme Courtacknowledges that "the effects of the decree onthird partiesand thepublic interestshould be taken into account when determining whether or not a change in fact warrants... the decree ".[143][129]There is criticism that "the antitrust consent decree is an opaque form ofgovernment regulationthat operates without many of thechecks and balancesthat constrain and shape ordinaryregulatoryprograms ".[144]So, some argue that the use of consent decrees inantitrustcases and withpublic institutionscan negatively affectthird partiesandpublic interests.[145][146][147][130]

[edit]

Consent decrees have appeared in various forms of popular media, often as plot devices to explore legal and political themes.

In the 2024 TV seriesElsbeth,starringCarrie Preston,the intricacies of consent decrees are highlighted. The show, a spinoff ofThe Good WifeandThe Good Fight,follows the lawyer Elsbeth Tascioni as she follows the NYPD where she is assigned to oversee a monitorship or consent decree after some controversial arrests.[148]

References

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  113. ^Mengler 1987,p. 294.
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  115. ^abcEpstein 2007,p. 4.
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  118. ^abcdeFieweger 1993,p. 1025.
  119. ^abConsent Decrees 1922,pp. 345–346.
  120. ^abcBaradaran-Robinson 2003,p. 1340.
  121. ^Keating, Gregory C. (1992)."Settling through Consent Decree in Prison Reform Litigation: Exploring the Effects ofRufo v. Inmates of Suffolk County Jail".Boston College Law Review.34:163–201.
  122. ^abResnik 2015,p. 67.
  123. ^abcdKeating 1992,p. 164.
  124. ^abResnik 2015,p. 63.
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  129. ^abKeating 1992,p. 191.
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  132. ^abcdefgEpstein 2007,p. 6.
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