Abstract

Justice Brennan, in his dissent in Marek v. Chesney, posed a perplexing question that stands unanswered over six years later. Under the Federal Rules of Civil Procedure Rule 68, a defendant may make an offer to accept adverse judgment prior to trial which, if not accepted by the plaintiff, will result in the plaintiff paying all "costs" incurred after the offer was made, if the "judgment finally obtained by the offeree is not more favorable than the offer….  As Justice Brennan pointed out, in his dissent, the Court's decision in Marek v. Chesney fails to address the difficult issue which arises whenever a plaintiff seeks equitable relief: "For example, if a plaintiff recovers less money than was offered before trial but obtains potentially far-reaching injunctive or declaratory relief, it is altogether unclear how the Court intends judges to go, about quantifying the 'value' of the plaintiff's success."

This Note briefly describes the difficulty of valuing equitable relief, raised by Justice Brennan in his dissenting opinion in Marek v. Chesney, and then examines the disparate treatment given to this issue in a few of the reported federal cases directly or tangentially addressing it. Finally, this Note proposes and discusses a potential solution to this unsolved problem.

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