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Most Frequent Uses of Consent Decrees[edit]

Antitrust Law[edit]

Violations of Antitrust law are typically resolved through consent decrees, which began to be more widely used after 1914[1] with the enactment of the Clayton Antitrust Act.[2] Examples of antitrust consent decrees can be found in a wide range of areas, including their involvement in corporations specializing in technology[3] [4], the film industry [5] [6], and the motor vehicle industry.[7] [8]

Structural Reform[edit]

School Desegregation

The effort to desegregate American public schools began in 1954 with Brown v. Board of Education. This landmark Supreme Court case established that racial segregation of children in public schools was in violation of the Equal Protection Clause of the Fourteenth Amendment, which requires that states must not "deny to any person within its jurisdiction the equal protection of the laws." [9] In order to properly enforce this legislation, the Supreme Court allowed district courts to use desegregation decrees obligating states to actively transition into racially nondiscriminatory school systems, with "all deliberate speed". [10] Since the original decree did not include specific ways in which this could be done, beginning with Swann v. Charlotte-Mecklenburg Board of Education in 1971, the Supreme Court specifically defined the objective as eliminating "all vestiges of state imposed segregation"[11] within school systems, including the limited use of busing [12] [13], racial quotas [14],the creation of magnet schools and judicial placement of new schools, [15] and the redrawing of school attendance zones.[16]In order to stop judicial intervention in schools and end the consent decree through a court order, districts must demonstrate desegregation within six criteria defined in the Green v. County School Board[17] ruling which include, student assignment, faculty, staff, transportation, extracurricular activities, and facilities.[18] [19]

Public Law[edit]

Consent decrees have been used to remedy various social issues that deal with public and private organizations, where a large number of people are often concerned even if they may not be members of either party involved. [20] Examples have included Title VII, the Americans with Disabilities Act, and environmental safety provisions.

Actions under Title VII of the Civil Rights Acts of 1964

Title VII prohibits discrimination by employers on the basis of race, sex, color, religion, or national origin. [21] Most often, the remedies to workplace discrimination carried out under this Act take place in the form of consent decrees, where employers may have to provide monetary awards or introduce policies and programs that eliminate and prevent future discrimination. [22] [23] These may include decrees that require the creation of new recruitment and hiring procedures to gain a more diverse pool of job applicants, [24][25]upgrading job and promotion assignment systems, [26][27] or offering training programs focusing on discrimination and diversity[28][29] Under the Civil Rights Act of 1964 The Equal Employment Opportunity Commission (EEOC) was created to be a major advocate and enforcer of the previously mentioned Title VII remedies.[30] In a landmark decision in 1973, the EEOC, Department of Labor and AT&T compromised on a consent decree that phased out discrimination within recruiting, hiring and employment methods in regards to minorities and women. [31] This established a precedent for other large, private U.S companies to create decrees in cooperation with Title VII in order to avoid expensive litigation and government oversight. [32][33]

Americans with Disabilities Act

The Americans with Disabilities Act (ADA) was a landmark supreme court case decided in 1990 that prohibits discrimination and ensures that people with disabilities have equal access to the opportunities and benefits available to the wider American population.[34] [35] Institutions that violate the requirements of the ADA enter consent decrees typically resulting in a payment from the corporation to those wronged, which may serve to discourage future discrimination, in addition to a change in policy to avoid future payouts. [36]. Examples of altered practices through the use of a decree have included restructuring building property [37][38] or the removal of barriers[39] to allow for physical accessibility for all persons, providing supplemental communication tools such as sign language interpreters [40] for those that are hard of hearing, and eliminating discriminatory practices against those that have a disability.[41].

Environmental Law

Consent decrees have been used to alter environmental policy, one example being the "Flannery Decision", or the Toxics Consent Decree, entered into by the Environmental Protection Agency and the Natural Resources Defense Council (NDRC), an environmental advocacy group.[42] This decree, signed in 1976, highly restructured the manner in which the EPA dealt with harmful substances by requiring the agency to list and regulate 65 toxic pollutants and to regulate harmful substances on an industry-by-industry basis rather than by singular pollutants. [43] [44] This decree went on to shape the regulations and administration procedures of water policy within the United States, particularly through the Clean Water Act.[45] [46]




  1. ^ Kramer, Victor H. "Modification of Consent Decrees: A Proposal to the Antitrust Division." Mich. L. Rev. 56 (1957): 1051.
  2. ^ 15 U.S.C. 12-27
  3. ^ United States v. Microsoft Corporation 253 F.3d 34 (2001)
  4. ^ Epstein, Richard Allen. Antitrust consent decrees in theory and practice: why less is more. AEI Press, 2007.
  5. ^ United States v. Paramount Pictures, Inc., 334 US 131 (1948)
  6. ^ Legislation by Consent in the Motion Picture Industry The Yale Law Journal , Vol. 50, No. 5 (Mar., 1941) , pp. 854-875
  7. ^ Chrysler Corp. v. United States, 316 U.S. 556 (1942)
  8. ^ Antitrust Consent Decrees: How Protective an Umbrella? Seth M. Dabney The Yale Law Journal , Vol. 68, No. 7 (Jun., 1959) , pp. 1391-1407
  9. ^ Brown v. Bd. of Educ., 347 U.S. 483, 495 (1954) (Brown I).
  10. ^ Brown v. Bd. of Educ., 349 U.S. 294, 295 (1954) (Brown II)
  11. ^ Swann v. Charlotte-Mecklenburg Board of Education, P. 402 U. S. 15.(1970)
  12. ^ Swann v. Charlotte-Mecklenburg Board of Education, P. 402 U. S. 29-31.
  13. ^ Green III, Preston Cary. "Can State Constitutional Provisions Eliminate De Facto Segregation in the Public Schools?." Journal of Negro Education (1999): 138-153.
  14. ^ Swann v. Charlotte-Mecklenburg Board of Education,P. 402 U. S. 22-25.
  15. ^ Williams, G. Scott. "Unitary School Systems and Underlying Vestiges of State-Imposed Segregation." Columbia Law Review (1987): 794-816.
  16. ^ Swann v. Charlotte-Mecklenburg Board of Education P. 402 U. S. 27-29.
  17. ^ Green v. County Sch. Bd. of New Kent County, 391 U.S. 430 (1968)
  18. ^ Green v. County Sch. Bd. of New Kent County P. 391 U. S. 435.
  19. ^ Baradaran-Robinson, Shima. "Kaleidoscopic Consent Decrees: School Desegregation and Prison Reform Consent Decrees After the Prison Litigation Reform Act and Freeman-Dowell." BYU L. Rev. (2003): 1333.
  20. ^ Schwarzschild, Maimon. "Public Law by Private Bargain: Title VII Consent Decrees and the Fairness of Negotiated Institutional Reform." Duke LJ (1984): 887.
  21. ^ 42 U.S.C. § 2000e-2 (1982).
  22. ^ http://www.eeoc.gov/employees/remedies.cfm
  23. ^ Hegewisch, Ariane, Cynthia H. Deitch, and Evelyn F. Murphy. Ending sex and race discrimination in the workplace: Legal interventions that push the envelope. Institute for Women's Policy Research, 2011.
  24. ^ Bockman, et al. and EEOC v. Lucky Stores, Inc. Case Number: CIV S-83-039 RAR Pages, 13-14
  25. ^ EEOC v. Wal-Mart Stores, Inc. Case Number:01-339-KKC Page, 5
  26. ^ ABDALLAH v. COCA-COLA CO.Case Number:1-98-CV-3679 (RWS)Pages, 18-19
  27. ^ Dorman v. Winn-Dixie Stores, Inc. Case Number: 99-722-Civ-J-21B Pages, 50-65
  28. ^ Kosen, et al. v. American Express Financial Advisors, Inc., et al. Case Number: 1:02CV00082 (HHK)Page, 21.
  29. ^ Butler v. Home Depot Case Number: C 95-2182 SI; C 94-4335 SI Pages, 33-36
  30. ^ http://www.eeoc.gov/eeoc/history/35th/thelaw/
  31. ^ http://www.eeoc.gov/eeoc/history/35th/milestones/1973.html
  32. ^ Green, Venus. "Flawed Remedies: EEOC, AT&T, and Sears Outcomes Reconsidered." Black Women, Gender & Families 6.1 (2012).
  33. ^ Williams, Benton. "AT&T and the private-sector origins of private-sector affirmative action." Journal of Policy History 20.04 (2008): 542-568.
  34. ^ http://www.ada.gov/ada_intro.htm
  35. ^ 42 U.S.C. 12112–12114
  36. ^ http://www.ada.gov/settlemt.htm
  37. ^ http://www.justice.gov/opa/pr/2010/November/10-crt-1268.html
  38. ^ http://www.ada.gov/archive/uamotion.pdf
  39. ^ http://www.ada.gov/stadiumo.htm
  40. ^ http://www.justice.gov/opa/pr/2011/March/11-crt-392.html
  41. ^ http://www.eeoc.gov/eeoc/history/45th/ada20/ada_cases.cfm
  42. ^ Natural Resources Defense Council v. Train, No. 74 Civ. 4617 (S.D.N.Y., March 1976)
  43. ^ Trussell, R. Rhodes. "Constituents of emerging concern: an overview." Proceedings of the Water Environment Federation 2006.12 (2006): 1460-1467.
  44. ^ http://water.epa.gov/scitech/methods/cwa/pollutants-background.cfm
  45. ^ O'Leary, Rosemary. "The Courts and the EPA: The Amazing" Flannery Decision"." Natural Resources & Environment (1990): 18-55.
  46. ^ Wyche, Bradford W. "The Regulation of Toxic Pollutants Under the Clean Water Act: EPA's Ten Year Rulemaking Nears Completion." Natural Resources Lawyer (1983): 511-536.