PrawfsBlawg

Secrecy in Settlements - Who Wants To Know? (and WHY?)

I recently saw an interesting example of human behaviour and confidential lawsuit settlements, something I’ve been interested in and have recently written about (which caused some interesting reactions at Prawfsfest in T-town last year). Recently, the Royal Canadian Mounted Police settled a lawsuit with the mother of a Polish man who was tasered and died in the Vancouver airport last year. The RCMP apologized and settled for an undisclosed sum. See the CBC article here.

The interesting part about the article are the comments by web commenters – a surprising number of them ‘demand’ that the dollar figure amount of the settlement be disclosed to the public. The most common reason cited for such disclosure is “the public’s right to know what’s going on with the public’s money.”

Now, as many of you on here know, I don’t really buy this argument, for a host of reasons (about which you can read in the upcoming “Keeping Settlements Secret,” (2010) FSU L. Rev. (forthcoming)). But what I’m curious to know is why the visceral reaction by the public about the amount? 

Do they REALLY want to know for reasons of civic accountability (i.e. do they think something is wrong with the settlement or with government lawyers)? Do they REALLY want to know for reasons of public transparency (do they think the public justice system requires transparency for some transcendental reason that they just choose not to articulate on a website blog)? Or do they just plain out want to know because they’re curious about what kind of money this grieving mother got so they can complain about it at the watercooler? Those are three very different reasons for me, and the third one is not one on which I’d base a decision on revealing secrecy.

For what it’s worth, I have difficulty understanding how, in some cases, the need/want of the public to ‘know’ the amount does more good than harm for the litigants. Is ‘the public” in a good position to evaluate a settlement? How does ‘the public’ evaluate settlements? Talk about information asymmetry! And then, what do they do with the information? What’s the ‘value?’ Thankfully, the large proportion of the ‘public’ are not lawyers and thus may not know what an appropriate range of a settlement is. They are not privy to the facts that led to it. Yet there sure is the desire to ‘want to know.’

Or, do people only want to know because they “can’t?” If it was public, would they ever really peer into a court file? What’s the redeeming value for the news consuming public?

There are a multitude of public spending situations about which the ‘public’ has no ability to ask ‘how much.’ That’s why we have some governmental discretion. But here, should the grieving mother be subject to public scrutiny about the ‘value’ of her settlement? If deemed ‘too high’ by the public, she’ll be ridiculed about how the government spent ‘the public’s’ money. Or make some conjecture (perhaps untrue) about the conduct of the police defendants in question. If deemed ‘too low’ by the public, she’ll be ridiculed about how little she received for such a tragedy. It’s lose, lose. So where’s the value?

In short, in private law, civil litigation settlements where parties themselves drive the litigation and determine when and how to settle, just because the dollars come from public coffers, does the public have a right ‘to know’ the amount even if it’s perhaps not helpful information but harmful to the parties if it gets out?

Random Updates on Punitive Damages, Eighth Amendment and Family/Criminal Law Work

Hope everyone had a good weekend following the Wall Street crisis and the Noles game. I spent most of my time the last few days revising my draft of Retributive Damages, which I've just uploaded to SSRN over here. As I've mentioned before, this paper is the first in a series of three papers proposing a new way to think about punitive damages. The first one is coming out this January in Cornell Law Review, and the draft on SSRN reflects some of the edits I've received from the first round of editing there.  The sequel to that paper, How Should Punitive Damages Work?, is coming out later in the spring in the Penn L. Review. I'll be presenting the sequel paper this Friday afternoon at the Canadian Law and Economics Association in Toronto (and I hope local Prawfs readers will get in touch with me there; I'll be hanging out with Dave Hoffman and Erik Knutsen). With some luck, there will be some discussion of that sequel paper in Penn's excellent online companion, Pennumbra. (Please let me know if you're interested in participating.) In the next few months, I am also hoping to get the third part of the trilogy ready for the spring submission cycle, tentatively titled, Punitive Damages and Complex Litigation, and a book proposal unifying these ideas in a project called Fixing Punitive Damages.

I've also put up a lightly revised draft of Executing Retributivism, a paper I mentioned a few weeks ago about the implications of the Supreme Court's decision in Panetti v. Quarterman for Eighth Amendment review of cases involving both capital and non-capital punishments. I'm pleased to say that the piece will come out as an article in Northwestern U. Law Review in the late spring. In the next few months, I plan on growing the arguments in Part IV.A of the paper (about the implications of "negative retributivism" for non-capital punishment), which right now, are largely allusive in nature. I'll be presenting a version of this paper at Amherst College at an Austin Sarat-fest in a couple weeks and then revising it in light of comments around early to mid October. As a result, I'll be especially grateful for any comments that roll in prior to October 12. Also, Northwestern has an outstanding online companion, Colloquy, which sometimes publishes in both the print volume and online those responses to articles in the print volume. So if you're interested in participating in a Panetti-inspired forum, let me know.

Last, Ethan, Jennifer Collins and I are in the home stretch of getting our book manuscript together for Oxford University Press. The book is called Privilege or Punish: Criminal Justice and the Challenge of Family Ties. If you have the time and inclination to read it in draft, we'd be very grateful for your comments; we'll probably have a draft to circulate in the next week or so. The book is scheduled to appear in the early spring of 2009, and draws on but revises much of the work we've done here (our Illinois piece) and here (our BU piece forthcoming this December). The BU piece, Punishing Family Status, is the subject of a mini-symposium with wonderful and provocative responses by Rick Hills and Michael O'Hear. Michael's response is available in draft here. Our draft reply, Voluntarism, Vulnerability and Criminal Law, is available here. Come 2009, keep your eyes open for a Privilege or Punish Roundtable coming to you. We'll have a great group of people to talk about the book and its themes at Law and Society in Denver (tentatively Naomi Cahn from GW, Elizabeth Scott from Columbia, and Melissa Murray from Boalt) and at SEALS in August (tentatively Alafair Burke from Hofstra, Jack Chin from Arizona, Alice Ristroph from Seton Hall, and Bob Weisberg from Stanford).