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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.

17

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.

18

Others argue for a right to

knowledge of settlements on the grounds that the courts are public

institutions.

19

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

that that

create a both plaintiff

and

defendant would otherwise Miller (1991) argues that

accept.

a

concern

Harvard Law School Professor Arthur

about

secrecy

should

not

impede

settlement

and

that

courts

should

facilitate

secrecy

if

it

will

increase

settlements.

Regulatory agencies, Miller suggests, are the proper

institutions to

ferret

Richard Epstein

(2002)

out information that is of also adopts this approach,

public benefit. even in considering

____________

17 18

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.

Prods.

Liab.

Litig.

No.

MDL

1553,

398

F.

Supp.2d

563

See In

(S.D.

Re Silica Tex. 2005).

19

Indeed, Fiss (1984) argues against permitting most private

agreements to adjudication.

settle at See also

all citing the Luban (1995).

many

benefits

of

a

final

public

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