Another interesting blog post over on Concurring Opinions today, this one by Lawrence Cunningham:
Can you keep a secret? If you promise to, law generally will hold you to it, even over protests that your First Amendment rights say otherwise. The famous golf pro, Tiger Woods, is reportedly asking his wife for such an ironclad lifetime promise never to discuss publicly anything about their collapsed marriage.Today’s globalized info-tech economy puts an increasing premium on the value of information, how it is used and by whom. For centuries, contract law has readily permitted contracting parties to agree to hold information confidential and law has recognized essentially unbridled party capacity to so commit, subject only to the usual rules on contract formation, interpretation and performance.
The commentary also touches on an being discussed in the contracts and privacy law discussion elsewhere:
You ought to be able to promise to keep a secret, and face legal sanctions if you breach. But the promise is not exactly like a promise to repay a loan or install electrical work. It doesn’t have to be treated the same way either.
Read more on ConcurringOpinions.com
Update: Dave Hoffman responds and adds to the discussion in his responsive post, On Nondisclosure Agreements and Societal Harm, also on Concurring Opinions.