NDAs: A Study in Rights, Wrongs, and Civil Recourse.

This article examines the tension within tort law, particularly under the civil recourse theory of John Goldberg and Ben Zipursky, regarding the enforceability of nondisclosure agreements (NDAs) in cases of sexual wrongdoing. Civil recourse theory views tort law as granting plaintiffs the power, but not the duty, to seek redress for legally recognized wrongs, grounded in a Lockean social contract and positive morality inherent in law. The article explores whether victims who enter NDAs have a moral duty to warn or rescue potential future victims, a duty that tort law currently does not recognize, creating a normative mismatch between moral expectations and legal doctrine. It argues that resolving the question of NDA enforceability requires engaging with actual, first-order morality beyond the positive morality embedded in tort law, highlighting a dilemma for civil recourse theory in reconciling the content of tort law with broader moral duties.