учебный год 2023 / the public right

916 CALIFORNIALAWREVIEW [Vol. 85:867

The court takes the responsibility of finding facts and applying its un- derstandingof the existing law to those facts. If the partieswish to keep the option of vacatur open, they should create their own private-law system; they should hire an arbitratorand sign a contract preserving their right to vacatur of the arbitrator's decision upon settlement. In

other words, if parties wish to enjoy the benefits of unfettered dispute resolution, they should take the initiative and settle their dispute pri- vately, ratherthan using the public courts. It could be arguedthat a litigant who urges the validity of the dispute-resolution model is trying to have her cake and eat it, too-she wants the benefits of dispute resolution without accepting its costs and is willing to accept the public character of the courts only insofar as they provide her with a relatively inexpensive public forum.

In sum, a litigant has no right to be free of a non-defective adverse judgment. If there is no right to be free of a non-defective adverse judgment, it follows that the remedy of vacaturshould not be granted in these cases. As we have seen above, remedies have become detached

from rights in some important ways. Nevertheless, remedies are not grantedin cases where no rights whatsoeverhave been violated. Vacatur, functionally, is a remedy, and it should never be given unless the underlying judgment is inherently flawed or no longer serves the pur- pose for which it was designed.

CONCLUSION

Discretionaryvacaturis a relatively new practice that carries with it the potential to undermine our system of precedent and the public legitimacy of the law. The Supreme Court attemptedto place limits on the practice in Bonner Mall, but at least one circuit court has largely ignored its pronouncement. Further,the Supreme Court's ruling does not control in state courts, where the practice of vacaturmay continue to thrive. The problem is compounded by the fact that it is very difficult for an appellate court to supervise lower courts that may wish to grant vacatur. Normally, no appeal will be taken from the vacatedjudgment because both partiesto thatcase will have agreed to the post-trial settlement.

Vacatur could be curtailed if the federal Courts of Appeals would adopt local rules clarifying their position on the practice and narrowing the grounds for vacatur-if possible, reserving it for defective judgments. If state appellatecourts followed suit, it is possible that a consis- tent policy disfavoring vacatur would emerge. Even so, the problem may remain; exceptional cases may still surface that would persuade courts to grant vacaturin the interests of short-term"efficiencies." But

such limited exceptions would be a far cry from the broad allowance of

1997] VACATURANDPRECEDENT 917

the practiceby the FirstCircuitin Mottaand the CaliforniaSupreme

settlementshouldnot obscurebroaderinefficienciesand deeper injus- tices whencourtsallowthevacaturof validjudgments.