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21 Cardozo J. Conflict Resol. 361 (2019-2020)
How a Good Idea Became a Bad Idea: Universities and the Use of Non-Disclosure Agreements in Terminations for Sexual Misconduct

handle is hein.journals/cardcore21 and id is 381 raw text is: 


                        Julie Macfarlane*

                        I. INTRODUCTION

     One of the challenges that face every third-party intervenor in
a conflict is what the parties shall agree about the public nature of
an agreed outcome. In private dispute resolution, in contrast to
adjudication by courts, there is neither a requirement nor (with a
few exceptions) a legal compulsion to reveal those outcomes, if one
or more parties prefer to keep the matter private.
     Dispute resolution scholars have written about these issues for
many years, which center on the question of whether outcomes
need to be public to ensure public accountability.' The often con-
troversial introduction of sunshine laws requiring the disclosure
of settlements that relate to public safety has been one conse-
quence of this debate.2 This discussion also implicates the continu-
ing use of mandatory arbitration, which, as scholars point out,
effectively excludes those settlements from public scrutiny.
     At an individual level, this dilemma highlights the practical
need for access to previous settlements by other litigants in the
same class. At a policy level, there are questions about the nature
of the wrong that has led to the settlement and whether, if con-

   * Distinguished University Professor and Professor of Law, University of Windsor. I owe
many thanks to Jessica Proskos, a 2019 graduate of the University of Windsor, for her invaluable
research assistance and clear-minded and creative thinking on this topic.
   1 See, e.g., David Luban, Settlements and the Erosion of the Public Realm, 83 GEO. L. J. 2619
(1995); Carrie Menkel-Meadow, Whose Dispute Is It Anyway? A Philosophical and Democratic
Defense of Settlement (In Some Cases), 83 GEO. L. J. 2663 (1995).
   2 Alison Lothes, Quality, Not Quantity: An Analysis of Confidential Settlements and Liti-
gants' Economic Incentives, 154 U. PA. L. REV. 433, 462-64 (2005); see, e.g., Erik S. Knutsen,
Keeping Settlements Secret, 37 FLA. ST. U. L. REV. 945, 969 (2010).
   3 Jean Sternlight has written extensively on this. Most recently, see Jean R. Sternlight,
Mandatory Arbitration Stymies Progress Towards Justice in Employment Law: Where To,
#MeToo?, 54 HARV. Civ. RTS. Civ. LIBERTIES L. REV. 155, 156-61 (2019); see also Carrie
Menkel-Meadow, Ethics Issues in Arbitration and Related Dispute Resolution Processes: What's
Happening and What's Not, 56 U. MIAMI L. REV. 949, 952-54 (2002).

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