Magazine article Editor & Publisher

Taking Judicial Notice

Magazine article Editor & Publisher

Taking Judicial Notice

Article excerpt

In a triumph for transparency, federal judges in South Carolina seek to stop the rubber-stamping of secret lawsuit settlements

Official secrecy is insidious. It insinuates its way into a public institution, sometimes even announcing itself loudly and congratulating itself for its good intentions. Soon enough, secrecy is simply another element of the ambience, no more remarkable than the memorial cannon in the town square. Nor any more threatening, so it would seem.

That process was surely at work in our courthouses, where sealed lawsuit settlements are nearly as numerous as docketed cases. Certainly the good intentions were present: Think how much pain we would assuage by allowing litigants who drag their disputes into open court to settle behind closed doors. Do we want to further savage the molested child, humiliate the victim of sexual harassment, shred the trade secrets of the honest entrepreneur, or hold up for ridicule the lapses that are the fate of imperfect Man -- all for the idle curiosities of the crowd? Of course not. And so the practice began of routinely sealing settlements of lawsuits that alleged the monstrous as well as the mundane.

As it turned out, society itself would bear that pain. As Kenneth A. Paulson, executive director of the Freedom Forum's First Amendment Center, noted recently: "There's a long and ugly history of secret settlements in cases in which disclosure would have alerted the public to serious, ongoing dangers." As long ago as 1933, a secret settlement between the Johns-Manville Co. …

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