Presidential Settlements

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Large groups regularly turn to the White House to resolve complex disputes collectively, much like a class action. These presidential settlements go back as far as the early Republic and were particularly popular in the Progressive Era, when President Teddy Roosevelt famously brokered settlements among private groups following a rash of accidental injuries and deaths in mining, rail, and even football. More modern variants include mass compensation schemes like the Holocaust victim settlement, the Pan Am 103 settlement, and the BP oil spill settlement brokered by Presidents Bill Clinton, George W. Bush, and Barack Obama, respectively. In each case, the President helped resolve a sprawling class action–like dispute among warring parties while advancing a broader executive agenda. Just as the President has extended power over the administrative state, presidential settlements demonstrate the growth of executive authority in mass dispute resolution to provide restitution for widespread harm.

But this use of executive power creates problems for victims purportedly served by presidential settlements. When the President settles massive private disputes, the President resolves them like other forms of complex litigation but without the oversight, transparency, and participation thought necessary to resolve potential conflicts of interest among the victims. The President’s other duties aggravate conflicts with groups who may rely entirely on the settlements for relief.

This Article recommends that the President adopt complex litigation principles to reduce conflicts of interest, increase transparency, and improve public participation in White House–driven settlements. Envisioning the President as the “settler-in-chief,” this Article also raises new questions about how the coordinate branches of government, as well as actors inside the White House, may regulate executive settlements consistent with the separation of powers.

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