Consent decree
A consent decree is an agreement or
Legal process
The process of introducing a consent decree begins with negotiation.
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 for contempt.[12]
Decrees by consent are more
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 a
History
Because judicial decrees are part of government civil enforcement in settlements that two parties typically agree to before
Frederick Pollock and Frederic Maitland describe how courts during the twelfth century of
Federal Rules of Civil and Criminal Procedure
The
Precedents
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. Ketchum bound 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 the Sherman Antitrust Act was Swift & Co. v. United States.[39][40] With Swift & 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 in United 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 in United 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 frame
In regard to litigation in performance rights organizations such as American Society of Composers, Authors and Publishers and Broadcast Music, Inc. in United States v. ASCAP, which began in 1941, the Department of Justice used 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
Antitrust law
Violations of
Structural reform
School desegregation
The effort to
Police use of violence
Consent decrees have been signed by a number of cities concerning their police departments'
Public law
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.
Actions under Title VII of the Civil Rights Acts of 1964
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 the Civil Rights Act of 1964, the Equal 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 Labor and AT&T compromised 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
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.
Environmental law
Consent decrees have been used to alter environmental policy, one example being the "Flannery Decision", or the Toxics Consent Decree, entered into by the Environmental Protection Agency and the Natural 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 guidelines regulations) 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 the Clean Water Act.[110][111]
Effects
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 and public interests.[115][116][117]
Advantages and disadvantages
The following are advantages of using consent decrees:
- Save financial costs of
- 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 their dockets.[122][123]
- Ability to get results of a trial: 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 of
- 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.
- Sustained judicial oversight and interpretation: 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, than adjudication",[122] especially in antitrust cases and those involving public 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 "neither judges, lawyers, nor parties know 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
The consent decree can impact those outside of the
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