Settler\u27s Remorse

Who can quarrel with the notion that settling civil cases is generally a good thing? Litigation is expensive, time-consuming, preoccupying, and often personally destructive. Our courts are overburdened and, in any event, imperfect decision-making entities. It may even be true that, more often than not, the absolute result of a trial is not as high a quality of justice as is the freely negotiated, give a little, take a little settlement. But not every case should be settled. Many are worthless. The settlement of others could too easily lead to a torrent of unwarranted litigation. Sometimes, as Professor Owen Fiss has observed, parties settle while leaving justice undone. While few of the settlements I have been involved with can be so described, one has plagued me since I participated in negotiating it twenty-five years ago. Now, in light of very recent and deeply disturbing revelations, it plagues me still more

The First Amendment and the Imminence of Harm

Noted First Amendment litigator Floyd Abrams engages questions about the past, the present and the future of free speech directly by considering the key words from Justice Holmes’s canonical formulation for the constitutional standard governing regulation of incitement speech—the requirement that any danger justifying such speech regulation must be “clear and present.” Mr. Abrams asks what types of “danger” are sufficiently “present” to provide that justification, using as examples the Communist teachings at issue in Dennis v. United States and The Progressive magazine’s publication of plans for constructing a hydrogen bomb. While Mr. Abrams reaches no hard and fast conclusion on this exceptionally difficult question, this essay places both the difficulty and the stakes of that issue in stark relief