About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

73 Hastings L.J. 1 (2022)

handle is hein.journals/hastlj73 and id is 1 raw text is: Articles The Psychology of Secret Settlements GILAT JULI BACHARt The #MeToo movement called attention to the use of non-disclosure clauses in settlement agreements as a tool to silence victims of sexual wrongdoing by repeat offenders such as movie mogul Harvey Weinstein and Olympic gymnast doctor Larry Nassar. The exposure of such secret settlements prompted a fierce policy and scholarly debate on the legitimacy and desirability ofNDAs. Though the risk of NDAs hindering accountability is hardly new, NDAs are now increasingly the subject of legislative action, in states ranging from California and New York to Nevada and Tennessee. But should all NDAs be banned or limited by sunshine- in-litigation laws? And will such legislation adequately reflect the public's attitudes regarding what it wishes (and doesn't wish) to know? Existing legal scholarship on the regulation of sexual harassment NDAs fails to benefit from the theoretical wisdom and empirical methods which psychological research can offer regarding these questions. This Article is the first to empirically identify psychological factors affecting lay attitudes towards secret settlements. Using a survey experiment conducted with a large representative sample, it brings to light the mechanisms underlying the public's tendency to seek information or remain in the dark regarding sexual harassment. The findings suggest that, counter to existing psychological theories, lay people actually prefer public disclosure of arguably the most uncomfortable information. Furthermore, according to the findings, the severity of the wrongdoer's misconduct and the victim's financial status each have an independent negative effect on lay people's endorsement of NDAs. These empirical findings will allow legislatures to regulate secret settlements in a manner that appropriately embodies the scope of the public's right to know. Such regulation will in turn help preserve both employees' willingness to come forward about sexual harassment and employers' inclination to settle. Moreover, these findings should encourage victim advocates to explore ways to maintain disadvantaged victims' bargaining power under a confidentiality ban regime. Prudent advocacy would help ensure that the choice between settlement and trial remains available to financially unstable victims. The findings further show the potential t J.S.D. '18, Stanford Law School; Visiting Assistant Professor, Villanova University Charles Widger School of Law. For helpful feedback, I wish to thank Netta Barak-Corren, Michelle M. Dempsey, Nora Freeman Engstrom, Jacob Goldin, Valerie Hans, David Hoffman, Jennifer K. Robbennolt, Andrew Lund, Robert MacCoun, J.J. Prescott, Itay Ravid, Fernn Restrepo, Mary Rose, and Yochai Shavit, as well as participants at the Stanford Legal Research in Progress Workshop, the New Voices in Dispute Resolution speaker series, the Law and Society Association Annual Meeting, the Legal Theory Workshop at Maryland Carey School of Law, and law faculty workshops at Villanova, Temple, Rutgers, Seton Hall, Georgia State, Buffalo, Hawaii, Golden Gate, UIC, Chapman, Missouri and Seattle universities. Grace Wydeven provided helpful research assistance.

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most