Law review articles discussing confidential settlement agreements focus more on the public policy implications of confidential settlements
rather than the incentives faced by the parties.
Several key societal
disadvantages with confidential settlements are identified in this literature: (1) continuing dangers may not be averted because they are not publicized; (2) other injured people may not realize that they have even been harmed yet; (3) other injured people may not realize that they
have a case against a wrongdoer; (4) discovery sharing that might have occurred among plaintiffs and defendants without confidentiality may
substantially reduce litigation costs.
Others argue for a right to
knowledge of settlements on the grounds that the courts are public
Proponents of confidentiality agreements argue that they can facilitate the reaching of an agreement and allow both the parties and
the courts to avoid the expense of litigation.
On this view,
transparency and publicity are a transaction tax “deadweight cost” in the scuttling of agreements
create a both plaintiff
defendant would otherwise Miller (1991) argues that
Harvard Law School Professor Arthur
Regulatory agencies, Miller suggests, are the proper
out information that is of also adopts this approach,
public benefit. even in considering
See e.g. Miller (1991), Doré (1999), Fiftal (2004). Ordinarily, discovery sharing is thought to benefit plaintiffs.
However, in recent mass tort silica litigation, defendant discovery
sharing led to the revelation of widespread fraud.
Re Silica Tex. 2005).
Indeed, Fiss (1984) argues against permitting most private
agreements to adjudication.
settle at See also
all citing the Luban (1995).