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Dispute resolution has become increasingly shrouded in secrecy, with the proliferation of protective orders in discovery, confidential settlement agreements, and private arbitration. While many civil procedure scholars have criticized this trend for undermining the systemic benefits of public adjudication, the desirability of secrecy in civil litigation proves to be a much more complicated question. On the one hand, some of those same scholars have recently sought to justify civil litigation in terms that, ironically, highlight the benefits of secrecy. Although this new justification remains somewhat inchoate, it is best understood as a claim that the procedures of civil litigation allow individual plaintiffs to realize one aspect of their dignity--which this Article labels "dignity-asstatus"--by empowering them to call those who have allegedly wronged them to account and to thereby reassert their standing as equals. The problem is that civil litigation can also undermine another aspect of plaintiffs' dignity--which this Article labels "dignity-as-image"--by requiring them to divulge sensitive personal information and thus to cede control over their public self-presentation. Secrecy can help to preserve this second aspect of plaintiffs' dignity. On the other hand, secrecy can also deprive plaintiffs of a potentially powerful expressive weapon in their quest to hold wrongdoers accountable. In conditions of socioeconomic inequality, weaker plaintiffs can sometimes turn the humiliating aspects of civil litigation to their advantage, intentionally revealing sensitive personal information that emphasizes their lower social status in order to shame their more powerful adversaries. It turns out that civil litigation can indeed promote plaintiffs' dignity-as-status, but by affording them a venue in which to deliberately compromise their dignity-as-image--to humiliate, as much as ennoble, themselves. Given the complex nature of dignity and the complex trade-off between secrecy's dignitarian benefits and costs, plaintiffs should be given more control over how much of their personal information is disseminated beyond the immediate parties to a lawsuit--a prescription with implications not only for secrecy in civil litigation, but also potentially for several other prominent procedural issues. [ABSTRACT FROM AUTHOR]

Corporate litigation is in crisis. At the state level, shareholder lawsuits challenging mergers and other corporate decisions are ubiquitous but rarely end with meaningful relief for shareholders. At the federal level, securities class actions are rife with ethical challenges and low-value settlements. Over the last several decades, multiple groups--including judges, legislatures, and corporate boards--have tried to solve this problem, but all have come up short. This Article argues that the solution lies in rewriting the procedural rules that govern corporate lawsuits. New standing requirements would lead to better screening of these claims. Discovery limits and heightened pleading requirements would give defendants better tools to fight frivolous claims. All of these new procedures, if incorporated into corporate bylaws, would apply wherever the corporation is sued to address forum shopping, a common feature in these suits. Just as importantly, institutional investors should take the lead in crafting these procedures. They stand on both sides of these lawsuits and are therefore financially invested in ensuring that corporate lawsuits live up to their potential. It is their money on the line if corporate managers breach their fiduciary duties, but also their money on the line if corporations have to pay to defend against meritless litigation. The time has come for shareholders to invest in procedure to solve the enduring problems in corporate litigation. [ABSTRACT FROM AUTHOR]

Is mandatory arbitration of shareholder claims desirable? With the blessing of the Supreme Court, mandatory arbitration provisions with class action waivers have become common in contract, consumer, and labor law. Policymakers now consider importing this trend to corporate and securities laws as well. The existing debate centers around consent and compensation: Can shareholders be held to consent to arbitration provisions in the company's corporate governance documents? Are shareholders better off with arbitration, given that litigation currently offers them very little compensation (with high fees)? This Article adopts a different, information-production perspective. It examines how the choice between litigation and arbitration affects the effectiveness of market discipline. Litigation, regardless of the legal outcomes, produces a positive externality: information on corporate behavior. Internal memos, emails, spreadsheets, and transcripts that are exposed in the process give us a glimpse into how the company-in-question is ran. This information helps outside observers reassess their willingness to do business with the parties to the dispute. In other words, litigation shapes the reputations of companies and businesspersons. By shifting from litigation to arbitration, we are likely to save administrative costs, but lose some of the effectiveness of reputational deterrence. While adopting a mandatory arbitration provision can be desirable for a given company, the ex ante effects of allowing such provisions would be overall detrimental to the market. [ABSTRACT FROM AUTHOR]