Thread by @alexthechick

🧵Good morning and welcome to Twitter Law School. Today we'll be reviewing consent decrees - what are they, whether they're are good or bad, and why I think the DOJ seeking the termination of consent decrees is a good thing. Grab caffeine conveyance of choice and let's get it.

A consent decree is a legal agreement between parties to a lawsuit in which they agree to terms to resolve the matter and that agreement is then signed by a judge. Here's the LII definition -
law.cornell.edu/wex/consent_de…

Let's break it down into two parts - consent and decree. Consent is straightforward. Both parties agree to the terms and, by signing the agreement, they consent to the terms and the enforcement of it.

Decree is because the court is decreeing that the terms of the agreement will be enforced. Why is that important? A settlement agreement is a contract between the parties. If one party breaches it, the other must bring suit to enforce it and prove both terms and breach.

When a consent decree has been entered by a court, the terms of that consent decree have been reviewed by the court, are on record with the court and, generally, the consequences for breach are already set out.

When a consent decree is breached, the other party simply has to file a petition with the court showing that the terms were breached and requesting the court enforce the consent decree.

A consent decree involving a government entity, either as plaintiff or defendant, is generally a hybrid of a settlement agreement and an injunction moving forward. It's a settlement agreement to compensate for past actions and an injunction to prevent future similar actions.

In those cases, there will usually be some kind of monitoring by either a court appointed monitor or an agreed upon monitor. That monitor will report back to the court if the terms of the consent decree are being followed.

So are consent decrees good or bad? Neither. Consent decrees are a tool and, like all other tools, are neutral. It's the use and abuse of consent decrees that is a problem. There are absolutely valid uses of consent decrees to enforce future compliance.

Let's look at Evil Corp and Good Corp for how a consent decree can be used in a positive manner. Evil Corp did the math and decided that it was cheaper to pay the fine and settle lawsuits then to stop dumping chemical waste into the river.

Good Corp did everything it could to comply with environmental regulations and also because dumping chemicals into the river is bad, but, due to plain old human error, there was an on going leak that no one noticed. The EPA brings suit against both.

Future monitoring for compliance is necessary to prevent Evil Corp for doing the same math and for Good Corp to go through its processes to make sure that the fail safes actually save the fails. Both had a history of past noncompliance which make future monitoring necessary.

Consent decrees can also be abused in order for an advocacy group to obtain via judicial order a policy win that the advocacy group cannot obtain through legislative means. Let's look at the Sheetz case (which has now been dismissed thankfully) and what I think the goal was.

Here's my thread with a discussion of the Sheetz case -

Briefly, the DOJ sued Sheetz for racial discrimination for using criminal background checks in a racially neutral manner.

https://x.com/alexthechick/status/1915382677730926794

In my opinion, this was an attempt to get Ban The Box implemented via consent decrees. Getting a consent decree from one large employer in an industry would absolutely have a chilling effect on others in that industry. It's an end round around to having to pass legislation.

There's a related process - sue and settle. An advocacy group sues for whatever its pet reason and then a friendly DOJ enters into a consent decree that gives that advocacy group what it wants. That removes the issue, at least partially, from legislative review.

The problem is not that consent decrees exist. The problem, as always, is in how that tool is used. In cases where consent decrees have been entered requiring on going monitoring, it can be nearly impossible for the terms by which the monitoring is to end to ever be met.

So why do I think the DOJ seeking termination of some consent decrees is a good thing? Because I think that using the courts as an end around for public policy matters is wrong. It is using the courts to save you. It is also very lazy indeed and breeds complacency.

If you can get a friendly court to enter an order giving you what you want, then you, advocacy group, do not have to advocate for your position. You do not have to persuade the public. You do not have to hone your arguments. You do not have to examine your own goals.

It is a good thing for future administrations to look at what past administrations did and determine whether or not those past actions confirm to the current administration's goals. I think this even when a future administration will seek to undo actions with which I agree.

To the extent that a consent decree should limit future government actions and require on going monitoring, that consent decree should be limited in time and limited in scope. Absent that, the courts are implementing public policy changes via private legislations.

TL;DR - consent decrees, in and of themselves, are a tool and are neutral. Once humans start being all human in how they are used and abused, consent decrees become a problem. Have a red panda.

/fin