The buying and selling of silence and the cost of secrecy

In an outstanding op-ed on today’s Washington Post, David A. Dana (Kirkland & Ellis professor of law at Northwestern Pritzker School of Law) and Susan P. Koniak (professor of law at Boston University School of Law) outline the costs to society of ‘court-sanctioned secrecy and nondisclosure agreements.’ In discussing the current environment, they note

Our courts and our legislators are guilty. Over the past few weeks, we have seen how our legal system has empowered and encouraged sexual predators to continue abusing women through secret settlements and nondisclosure agreements, despite knowing how dangerous silence can be.

Now is different, we’re told. A “cultural moment.” Laws will be reformed. Courts will change their rules. Lawyers, corporations, the American Bar Association and think tanks such as the Heritage Foundation will do a 180 and end their hawking of secrecy.

And pigs will fly.

Indeed, although public attention is at this moment focused on an obscure congressional fund used to secretly settle sexual harassment claims against lawmakers with taxpayer money,

Congress is not alone. Some local and state government agencies also use taxpayer funds to secretly settle in cases of police brutality and other serious wrongs, leaving the public in the dark on the facts.

To center the debate solely on secret settlements in government, however, is a mistake. Defective fuel tanks and tires that explode, toxic chemical spills, the Dalkon Shield, leaky breast implants, GM’s faulty ignitions and asbestos-saturated air — each of these examples involves dangers to the public that lawyers and companies have kept hidden through agreements that prevent victims from speaking out.

Most courts in the United States allow vital information to be kept from the public. Only a handful of states have passed legislation limiting secrecy in cases that involve substantial public hazards. And even in those few states with legislation, the “hazards” are generally too narrowly defined, not covering, for example, cases of sexual abuse, harassment or racism in the workplace.

Dana and Koniak additionally focus attention on the question of cui bono—beyond the wrong-doers.

Their commentary is a strong and important addition to the current discussion.

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