Hushing Contracts

69 Pages Posted: 6 Feb 2019 Last revised: 2 Mar 2019

See all articles by David A. Hoffman

David A. Hoffman

University of Pennsylvania Law School; Cultural Cognition Project at Yale Law School

Erik Lampmann

University of Pennsylvania Law School

Date Written: February 4, 2019

Abstract

The last few years have brought a renewed appreciation of the costs of nondisclosure agreements that suppress information about sexual wrongdoing. Recently passed bills in a number of states, including New York and California, have attempted to deal with such hush contracts. But such legislation is often incomplete, and many courts and commentators continue to ask if victims of harassment can sign enforceable settlements that conceal serious, potentially metastasizing, social harms. In this Article, we argue that employing the public policy doctrine, courts ought to generally refuse to enforce hush agreements, especially those created by organizations. We restate public policy as a defense which should to be concerned with managing externalities, and which expresses a legitimating account of contract law.

Keywords: #metoo, sexual harassment, contracts, public policies, externalities

JEL Classification: K12, K31

Suggested Citation

Hoffman, David A. and Lampmann, Erik, Hushing Contracts (February 4, 2019). Washington University Law Review, Forthcoming; U of Penn, Inst for Law & Econ Research Paper No. 19-08. Available at SSRN: https://ssrn.com/abstract=3328569

David A. Hoffman (Contact Author)

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States

Cultural Cognition Project at Yale Law School

127 Wall St
New Haven, CT 06520
United States

Erik Lampmann

University of Pennsylvania Law School ( email )

Philadelphia, PA
United States

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