In settling a lawsuit, parties agree on their obligations to one another, but they need not separately address each issue, claim, or remedy that a trial court would have confronted. The legal system, however, can bifurcate the settle-ment process, requiring separate resolution of components of a settlement. Bi-furcation can protect third parties, for example, by preventing divorcing parents from trading child custody for money. In addition to identifying a wide range of contexts in which preventing trade-offs may be desirable, this Article shows that bifurcation will generally have only modest (and sometimes beneficial) effects on settlement rates.
GW Paper Series
GWU Law School Public Law Research Paper No. 2019-16; GWU Legal Studies Research Paper No. 2019-16
Abramowicz, Michael B. and Abramowicz, Sarah, Bifurcating Settlements (2018). Bifurcating Settlements, 86 Geo. Wash. L. Rev. 376 (2018) (with Sarah Abramowicz).; GWU Law School Public Law Research Paper No. 2019-16; GWU Legal Studies Research Paper No. 2019-16. Available at SSRN: https://ssrn.com/abstract=3366631