4 - Judges as Bulwarks and Nudgers

Summary

Using illustrations from proceedings over Pradaxa, Yasmin/Yaz, Zimmer’s Durom Hip Cups, and the World Trade Center disaster, this chapter narrates some of the judicial nudges lurking behind the following statistics: a mere 8 percent of judges in the dataset took no steps whatsoever to endorse, promote, or enforce private deals. Instead, 64.7 percent of judges presiding over private aggregate settlements formally appointed the private claims administrator or settlement master. And, to varying degrees, 52.9 percent of federal judges “approved” private settlements, blurring conventional wisdom that private settlements are just that – private. Settlement designers hope that a judicial imprimatur will persuade nonlead lawyers and plaintiffs alike to settle, so they ask judges to intervene in some explicit or implicit way. But judges often lack the information they need to send reliable signals and conduct no formal inquiries to determine whether settlements are fair. Plus, when judges use their power to approve, enforce, and push plaintiffs into private settlements, they not only appear to exceed the authority that rightly belongs to them, they may also impinge on plaintiffs’ free will to consent.