User:Jc082011/sandbox

Effects
Scholars find advantages and disadvantages to using the consent decree. They see the impact of consent decrees on third parties and public interests. In addition, there is a discussion on the constitutionality of the consent decree.

Advantages and Disadvantages
The following are advantages of when using consent decrees:
 * 1) Save financial costs of litigation: Consent decrees forgo a court trial that allows for both parties and the courts to save legal expenses.
 * 2) Save the time of prolonged litigation: The parties and the courts save the time it would take for a court trial to occur  and the courts more quickly clear their dockets.
 * 3) 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.
 * 4) Parties avoid the uncertainties of a trial: Consent decrees forgo a trial and its unknown outcome, the necessity of proof, and any guilt is taken for granted (because no one is accused by the consent decree).
 * 5) Parties have control of the remedial plan: Consent decrees allow both parties to have greater latitude in deciding how to remedy their issues.    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."
 * 6) More compliance and authoritativeness: Both parties more voluntarily implement their agreements if obtained by consent than by force. Moreover, to fail to act under the consent decree seems to be more a violation of the "law" than if under a contract because the parties are "bound" and not "obligated" by the consent decree . Its authoritativeness is reinforced by the practice that a return to court for a consent decree has a priority in the court queue.
 * 7) Sustained judicial oversight & interpretation: Courts can supervise that consent decrees are upheld for a long period of time.

In contrast, the following are disadvantages of using consent decrees:
 * 1) Duration: Some argue that "consent decrees often last for too long a period." Although consent decrees are a solution to a particular issue, the context around that issue or the issue itself may change. However, the consent decree is neither as easy to modify nor adapt and thus can become inadequate.
 * 2) Ambition: The use of a consent decree is an avenue for those seeking to enact a future-oriented change that is more general and not case-specific.  Consent decrees are thus used "as a tool of enforcement [that are] less expensive, and sometimes more far-reaching, than adjudication," especially in antitrust cases and those involving public institutions.
 * 3) Complexity: The consent decree is complex in questions of modification, before and after 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."
 * 4) Ambiguity: There is ambiguity in the source of power of the consent decree, the role of judges, and the guidelines for a consent decree. 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.

Third Parties and Public Interests
The consent decree can impact those outside of the parties, who resolve their disputes with a consent decree, especially in settling institutional reform and antitrust cases. From Rufo v. Inmates of the Suffolk County Jail and United States v. Swift & Co. et al., the Supreme Court acknowledges that "the effects of the decree on third parties and the public interest should be taken into account when determining whether or not a change in fact warrants... the decree." There is criticism that "the antitrust consent decree is an opaque form of government regulation that operates without many of the checks and balances that constrain and shape ordinary regulatory programs." So, some argue that the use of consent decrees in antitrust cases and with public institutions can negatively affect third parties and public interests.

Constitutionality
There exist questions about the constitutionality and the legitimacy of consent decrees. In the dissent of Maryland v. United States where"Justice Rehnquist (joined by Justices White and Chief Justice Burger) [argues] that once the parties had agreed to withdraw or to settle a lawsuit, no "case or controversy" existed; therefore, judges lacked the power to insist upon any particular agreement. [U]nder this view, legislation such as the Tunney Act or court rules like Rule 23(e) of the Civil Rules are unconstitutional grants of authority to federal courts, and judges cannot inquire into any terms of parties' agreements."