Consent Decrees and the Rights of Third Parties

I begin in Part I by describing the dynamics of the consent decree process: why parties want consent decrees and why courts agree to enforce them. On the basis of this description, I construct a model of the consent decree as a device that encourages settlement by facilitating enforcement of the parties’ agreement.

The remainder of the article then applies this model to third-party claims. Part II considers whether there is any reason to prevent third parties from bringing an independent action attacking a consent decree. Part II concludes that the collateral attack bar is a form of abstention, serving interests of comity and judicial economy by channeling third-party attacks to the court that entered the consent decree. However, requiring mandatory intervention shortens the time third parties have to seek relief. Because courts lack authority to modify substantive rights, I suggest replacing the collateral attack bar with a simpler procedure of consolidating third-party claims and consent decree proceedings. Part III then addresses the distinct issue of whether the collateral attack bar is constitutional. I discuss this issue despite the conclusion in Part II because the Supreme Court has agreed to hear a case presenting it this Term, and because, unlike other commentators, I believe that, properly applied, the collateral attack bar is constitutional. The remainder of the article then fleshes out the details of third-party challenges to the legality of a consent decree. Part IV discusses the substantive claims that third parties can raise and the form of the remedy if they are successful. Part V addresses the need for fairness hearings and concludes that such hearings should not be required. The result is a comprehensive description of how third-party rights should be protected in the context of consent decrees.