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- Title
A Duty to Disclose Social Injustice Torts.
- Authors
Bachar, Gilat Juli
- Abstract
Are tort victims ever obligated to disclose the wrongdoing they suffered? This unanswered question demands our prompt attention given two recent trends: the prevalence of non-disclosure agreements concealing injustices such as sexual wrongdoing and police misconduct; and a new wave of sunshine-in-litigation laws attempting to curb confidentiality in at least a dozen states, from Tennessee to California. Such laws have sought to prioritize the public interest in information regarding certain harmful behavior over the interests of individual litigants. But, to date, scholars and policymakers have failed to identify one of the key justifications for curtailing the widespread practice of confidentiality in tort settlements. This Article is the first to fill this crucial gap, conceptualizing and delineating a disclosure duty owed by tort victims to others. The Article first creates a taxonomy of existing sunshine laws, arguing that current legislation has been miscalibrated and has failed to effectively address the problem of keeping valuable settlement information under wraps. Specifically, existing sunshine laws have been subject matter-based, resulting in both over- and underinclusiveness. Instead, sunshine laws should target wrongs arising from social injustice, which breed the most significant tension between the interests of individual litigants and the public. In the context of social injustice torts, the Article argues that victims owe a duty of disclosure to others. It contends that victims are best situated to report the injustices they suffered, that failing to disclose allows systems of oppression to continue to pervade our society and that disclosure should be understood as an act of solidarity between present and future victims of injustice. Next, the Article considers the administrability of such a duty for tort law, arguing that when victims seek to use the court system to vindicate a right of action against their wrongdoers, they should be required to disclose any information of public interest underlying their claim. The Article then addresses concerns regarding a potential chilling effect and suggests limiting the scope of disclosure to four categories of wrongdoers which pose the highest risk to third parties and to the public more broadly: (1) repeat wrongdoers, (2) disproportionally powerful wrongdoers, (3) organizations, and (4) public entities. Drawing on these categories to require disclosure of settlement information in social injustice torts, the Article argues, will allow society to maintain the practice of confidential settlements for the benefit of individual victims, without giving up on democratic transparency. "All actions relating to the right of other human beings are wrong if their maxim is incompatible with publicity".
- Subjects
SOCIAL justice; TORTS; NONDISCLOSURE; CONFIDENTIAL communications; JUSTICE
- Publication
Arizona State Law Journal, 2023, Vol 55, Issue 1, p41
- ISSN
0164-4297
- Publication type
Article