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Publication Date



New York University Annual Survey of American Law




N.Y.U. Ann. Surv. Am. L.

First Page



After documenting the role of mediating judges in today’s federal courts, Part I considers both reform narratives and power narratives explaining their use. To add context and specificity, Part I presents case studies based on original research. While these examples have unusual features, they illustrate the breadth of potential mediating judge activities and offer more of a citable record than can be found for other cases. The first involves the largest municipal bankruptcy in American history. 10 The second starts with the bankruptcy of a founder of a nationwide assisted living facility enterprise, who also solicited retirees to make “can’t miss” financial investments. Part I expressly disaggregates the cases’ routine and exceptional elements. Finally, Part I highlights the separation-of-powers considerations that the case studies invite. It also shows how the Supreme Court’s vague guidance on separation of powers yields conflicting messages about how mediating judges should go about their business.

Part II considers the impact of prominent judicial accountability measures on mediating judge practices. The discussion illustrates why these systems do not operate effectively with respect to mediating judge practices. One of the biggest reasons is foundational to the mediation task: lack of a record of what transpired in behind-the-scenes negotiations. Another reason is an unduly restrictive definition of what constitutes extrajudicial activity.

Part III prescribes an agenda to preserve the virtues of the mediating judge model while managing the risks. It directs the work to institutions that make rules and policy for the federal judiciary, particularly within the powerful Judicial Conference of the United States. In addition to targeted queries arising from the research this article reflects, the agenda should address big questions, including the application of separation-of-powers principles and whether judges act in a judicial capacity when they mediate.

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