This is fair. Even before I saw your post, I was about to come back and retract my statement that you criticized the victims. That was Ronny. My apologies.

I don't see how any of the bolded would eliminate or meaningfully reduce the phenomenon of employees agreeing to non-disclosure provisions in connection with the resolution of legal disputes related to sexual harassment or any other topic.

As I said, you could eliminate or put temporal limitations on that practice by statute, and I would be open to a discussion about whether that is a good idea. I suspect that opinions would differ significantly, even among professional advocates for victims of sexual harassment. But I don't see any other solution to the problem.

You also should remember that non-disclosure provisions in these settlements typically run in both directions. I don't see any practical way to allow victims of sexual harassment to speak publicly against their alleged harassers without giving the harassers the right to flame their accusers in public. As I said, a lot of victims of sexual harassment don't want to go down that road.

I disagree. The proposition that compensatory damages are supposed to deter sexual harassment would be very controversial among legal scholars.

When awarding compensatory damages, juries are not supposed to consider whether the amount is sufficient to deter future misconduct. And as a lawyer, you certainly would not be allowed to argue to the jury that it should award compensatory damages in an amount that it believes would be sufficient to deter future misconduct.

Requests for punitive damages are allowed for some types of sexual harassment claims. Juries and lawyers obviously would have more latitude in those cases.

No problem.

The disparate power of legal teams (i.e Fox being able to afford better/more lawyers than you), the potential personal legal costs and the disruption an ongoing legal case can cause to your earnings in the meantime, the pressure of taking the stand and reliving the experience, having your name dragged through the mud, the lack of representation in workplace disputes, the social stigma that comes with making accusations, these are all barriers to people who might wish to fight their case further, or are effective in creating places in which sexual harassment doesn't occur in the first place. It follows then that any steps to reduce such barriers will lead to either less harassment in the first place, or more people being empowered to fight their cause.

It's a good point you make that these run in both directions. To be clear though, I'm not going to take the stance that we should simply outlaw NDAs tomorrow. Nothing that naive. What I'll say is that there is an open question here as to whether society as a whole is best served by such improprieties being kept silent. This was in essence the question raised by the Metoo movement - this happens a lot, it's awful, but victims often have to keep quiet. To the extent that NDAs institutionalise that silence I find it very hard to support them in principle as oppose to the easier concession that they might be the best option available right now for individuals.


I feel like this is going to get into philosophy of law at a level I'm not equipped for. I'd have to think about it but my gut is there's going to be a distinction between stated functions of law and how they're handled in practice and my saying that the legal system in principle is (or at least ought) to deter or prevent certain wrongdoings. And then I can't tell you what legal scholars think of that but I will repeat that I'm principally opposed to the idea of the law being reduced to some kind of transactional thing where so long as you can pay the fine you can do as you wish. Put simply, I very much want to say "You're not allowed to do this" as opposed to "You can do this for $x compensation" and I want that to be reflected by the legal system as best as possible.

I'm not even sure that it is an open question. Society as a whole probably is not best served by such improprieties being kept silent.

My concern, which I think you appreciate, is that victims of sexual harassment are the ones who have to pay the financial, reputational, and psychological price for this benefit to society.

It probably would be better for society if every victim of rape came forward. But no one is in favor of making that compulsory because it feels gross to force rape victims to cede control of their lives in that way.

Absolutely, but then I'm going to guess that when it comes to rape while you're not in favour of forcing people to press charges or go through trials you'll be heavily in favour of reducing the barriers to victims doing so. Which is analogous to my position here; I'm not going to advocate removing that option from victims right now, but I am going to advocate doing our level best to alleviate the pressure to take them.

Yup,

Which is why I still stand by this and particularly the bolded.

It should not be possible to sign away one's right to challenge harassment. The whole concept of NDAs should not be allowed. They exist to help powerful parties suppress evidence of their own wrongdoing.

I think this is arguably a position we could debate and many could agree with but it does lead to exactly what I said in the name of the 'greater good' argument...

"... I know people reflexively probably won't care about the victims who would want to settle and might end up denied and will only focus on those who decide after the fact, they signed a bad deal, but both groups should matter..."

If your point is specific to sexual harassment, then as I said, there is room for debate.

If you are arguing that NDAs should not be allowed under any circumstance, I strongly disagree. The latter position I would characterize as juvenile and not well thought out at all.

Also, if you sign a settlement with a non-disclosure provision in a sexual harassment case, you aren't signing away your right to challenge harassment in the first instance. You already have challenged harassment. You are signing away your right to seek recourse in court (or in to continue your court case). And you are signing away that right in exchange for money, which is true any time there is a settlement agreement in any context. And you are signing away your right to talk about the settlement and your right to disparage your harasser. Again, this is bog standard for the settlement of any sort of meaningful litigation claim, but perhaps that option should not be on the table in sexual harassment cases.

People shouldn't be allowed to buy protection from the law either. NDAs should be subject to the law. and not some free for all. Within that there's a genuine debate about what the law on NDA's should be.

Any claim by cuepee that this position (or yours) is any sort of lack of sympathy or concern for victims is ridiculous. That argument can be made about all protections within contract law - some people would think (possibly correctly) that they dont want those protections.

I have no idea what you are trying to say. No idea at all.

It sounds like you are saying that settlements shouldn't be allowed at all, because whenever you settle, you are buying protection from the full consequences of a trial to verdict (or final award by an arbitration panel).

That would be the dumbest rule ever and absolutely awful for plaintiffs.

laywers! I'm not talking about what the law happens to be (partuclalrly not in lol usa)

What shoudl the law on harrasment (and worse be)? Should companies or individuals be able to buy protection from it?

Some of these distinctions cease to be meaningful in legal systems where there is no notion of civil lawsuit (e.g. most European systems).

Privacy of the allegedly harassed can be (and should be) protected by law. Already disparaging someone justifiably is against the law everywhere (standards vary widely though).

But a general principle is that one cannot sign away one's rights. Allowing people to sell their rights only works if there is some mechanism that prevents abuse of such a system by very resource rich entities, and it seems plain that there is not. This seems to be a general defect of the US civil litigation system

More generally, NDAs are like plea bargains in one sense - they are forms of extrajudicial conflict resolution and this is a feature or a bug depending on your perspective. From my perspective neither serves the interest of justice, at least as currently structured.

Your statement wasnt specific to sexual harassment cases, and i didnt say anything to you at all about what the law was.

This is very simple. Do you believe that parties should be allowed to settle lawsuits for less than the full amount of claimed damages? Do you believe that parties should be allowed to settle sexual harassment lawsuits for less than the full amount of claimed damages?

Also, the differences in lolUSA law and lolEnglish law are modest--our system being derived from your system and all that.

I've posted about the evil of plea bargaining before.

It was somewhat interesting to see the usa phenomena of posters insisting there is no other way. They didn't even argue plea bargaining was good (cos you cant perhaps) but biazarly insisted nothing else was possible.

Yes NDAs are somewhat similar.

Subject to laws on settlements.

Do you not think all contracts have some limitations on what can be agreed?


There not modest. They're huge and disasterous. Plea bargaining is a monsterous evil for one.

Civil settlements are very different than plea bargains in all contexts. In cases where both parties are sophisticated, the comparison is ludicrous on its face. I mean, LOL at comparing a settlement in a dispute between Apple and Samsung to a plea bargain.

For the anti-NDA crowd, how do you envision deals working without them? Besides preventing sexual harassment victims from being compensated, and making it impossible for businesses to work together and share sensitive information, what are some of the other upsides?

I have never seen a contract that limited the ability of the contracting parties to settle their dispute on mutually agreed terms in the event of an alleged breach.

There is plenty of law on the enforceability of mandatory arbitration provisions, but that is a very different question.

That's a laywers trick. I'm not suggesting NDAs and plea bargains are simialr. I'd also compare the contract problem to minimum wage and minimum wages are not similar to NDAs either.

And the NDAs in question are not between equal parties.

I don't know why you are talking about criminal plea bargains, as this entire discussion has revolved around civil litigation. English law on civil disputes is probably closer to U.S. law than it is to the law of any other country, although Australia and New Zealand would be very much in the same ballpark.

LOL chez. Can you not remember what you posted three minutes ago.

Forget about NDAs for minute. What is the answer to this question, chez?