Judges as gatekeepers and the dismaying shadow of the law: courtroom observations of judicial settlement practices

Michal Alberstein, A. Sela, Nourit Zimerman

Research output: Contribution to journalArticlepeer-review


In the civil justice system, judges engage in case management and settlement promotion more than they do in trials and judgment. Despite the importance of a judge's role in settlement, its empirical depiction and jurisprudential theorization are lacking. This gap is likely the result of a key characteristic of this judicial practice: it takes place ‘off the record.' Using original data from a series of courtroom observations in pretrial settlement hearings in Israeli courts, we present new evidence and analyses of this important feature of civil litigation—which is also prevalent in many common law jurisdictions. Based on a thematic analysis of the observations, we discuss eleven structural features, techniques, and attitudes that characterize judges' courtroom settlement practices. We provide real-life examples of each theme, and discuss our findings in the context of the vanishing trial phenomenon. We argue that in today's overburdened courts, where trials are the exception, judges often find themselves in a jurisprudentially peculiar position of trial gatekeepers. In this capacity, judges leverage their institutional authority and a host of techniques to persuade litigants to settle rather than to exercise their right to receive a reasoned judicial determination of fact and law. Thus, a striking dissonance emerges in trial courts: judges—the flagbearers of the justice system—present adjudication as an inferior option compared to settlement. In this process, judges' settlement-promoting actions can cast a dismaying “shadow of the law,” that of an undesirable, lengthy, slow, costly, uncertain, unsatisfying, and—at times—even unfair path to justice. In its stead, the day-to-day pretrial reality of civil courts in Israel favors a jurisprudence focused on the goals of redress, compromise, finality, and cost-effectiveness. We elaborate on this understudied aspect of civil litigation, discuss ethical challenges it raises, and point to possible policy responses.
Original languageEnglish
Pages (from-to)83-125
Number of pages44
JournalHarvard negotiation law review
Issue number1
StatePublished - 2018


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