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Wednesday, April 02, 2014

Two by Zimmerman

If you have not yet read the work of my former St. John's  colleague and friend, Adam Zimmerman, you are missing out. Adam's work often addresses the question of settlements, but it does so drawing from (and with major structural implications for) administrative law, tort law, criminal law, and constitutional law. He has two very interesting new pieces, Presidential Settlements and The Corporate Settlement Mill (co-authored with Dana Remus, another former colleague!). Just a couple of quick thoughts on the first article.

The core idea in Presidential Settlements is that the office of the president has been used at several distinct historical moments to resolve major private disputes. Presidents use their formidable powers of persuasion to obtain financial redress for some group of private persons that seek compensation from some other group of private persons. And the aim of the paper is to explore the circumstances in which this has occurred and then to think critically about these presidential settlements. One of the latest examples is President Obama's intervention in the BP Oil Spill to set up a structure to resolve claims after a fashion that resembles a kind of class action settlement. But what Adam shows, and what is my own favorite part of the piece, is that past presidents have used the office in similar ways in response to other sorts of problems of various dimensions. The problems that inhere in presidential settlements are as old as the Jay Treaty of 1794, Adam writes, and they were worked out in interesting ways in the Labor settlements of the early twentieth century. In the modern period alone they include the "Iran-American Settlements, the Holocaust Victim Settlement, and the settlement of claims arising out the 1988 bombing of Pan Am 103 over Lockerbie, Scotland, brokered under Ronald Reagan, Bill Clinton and George W. Bush."

But here's an earlier presidential settlement that may be less familiar and I found interesting--a presidential settlement before the age of Labor settlements really got going that indicates something about the division of power among the courts and the president using a kind of property law analogy:

[P]residents assumed greater power over mass settlement awards by insulating even very minor controversies over the division of awards from judicial review. In early decisions, courts retained jurisdiction to determine the legal “title” to settlement awards among disputing parties, only deferring to the executive branch to exclusively negotiate the total amount of funds due to victims. The executive branch, however, ultimately assumed more control over distribution decisions through “finality clauses,” which expressly barred judicial review of large international settlement funds. A Special Mexican Claim Commission brokered by the Coolidge Administration to pay over 2,800 US citizens for revolutionary violence along the US-Mexican border, for example, provided that “all decisions by the commission shall constitute a full and final disposition of the cases decided.” Decades later, when Congress broadly delegated authority to the executive branch under the Foreign Claim Settlement Act to resolve private claims against most foreign governments, the Act not only contained an identically broad finality clause, but barred review of commission decisions by “any other official, department, agency ... or any court by mandamus or otherwise.” (18-19) 

Posted by Marc DeGirolami on April 2, 2014 at 08:49 AM | Permalink


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Thanks so much for this thoughtful and kind post, Marc. The overall project has been to examine the distortions that mass dispute resolution can have in non-traditional forums--like agencies, prosecutor offices, private corporations, and now, the Presidency. See Adam S. Zimmerman, Distributing Justice, 86 N.Y.U. L. Rev. 500 (2011) (agency restitution schemes); Adam S. Zimmerman & David M. Jaros, The Criminal Class Action, 159 U. Penn. L. Rev. 1385 (2011) (criminal restitution schemes); Michael D. Sant'Ambrogio, The Agency Class Action, 112 Colum. L. Rev. 1992 (2012) (all agency adjudication schemes); Dana A. Remus & Adam S. Zimmerman, 101 Va. L. Rev. (forthcoming 2015) (legislative and agency-required corporate restitution schemes); Adam S. Zimmerman, Presidential Settlements, 163 U. Penn. L. Rev. (forthcoming 2015) (presidential restitution schemes).

But yes, it's been a great platform for thinking about other so many other issues--like agency adjudication, prosecutorial discretion, government privatization and separation of powers. Just as critics complain about “activist” judges in mass disputes, officials in the executive branch have opened themselves to an analogous complaint when they press against the boundaries of executive authority by "adjudicating" claims of mass harm. E.g., James A. Henderson, Jr., The Lawlessness of Aggregative Torts, 34 Hofstra L. Rev. 329, 338 (2005); Donald G. Gifford, The Constitutional Bounding of Adjudication: A Full(ierian) Explanation for the Supreme Court’s Mass Tort Jurisprudence, 44 Ariz. St. L.J. 1109,1154-57 (2012); Jonathan Molot, An Old Judicial Role for a New Litigation Era, 113 Yale L. J. 27, 30 (2003); Linda S. Mullenix, Mass Tort as Public Law Litigation: Paradigm Misplaced, 88 NW. U. L. Rev. 579 (1994).

Perhaps, as some have suggested, there is something about the nature of any large-scale relief effort that—when undertaken by courts, legislatures, or the President—strains the delicate balance of powers between the branches to their limit. Sanford Levinson, Constitutional Norms in a State of Permanent Emergency, 40 Ga. L. Rev. 699 (2006); Hari M. Osofsky, Multidimensional Governance and the BP Deepwater Horizon Oil Spill, 63 Fla. L. Rev. 1077, 1079 (2011).

This doesn't mean that the government should abandon efforts to respond to large crises that impact public and private interests. But it may mean more attuned procedures to encourage the coordinate branches to police each other, while protecting individual complainants who depend on the government for relief from mass harm. These papers are just opening a conversation about what those rules should look like.

Posted by: Adam Zimmerman | Apr 2, 2014 5:00:06 PM

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