Apology Subverted: The Commodification of Apology

Yale Law Journal

Volumn 109, Issue 5, 2000, Pages 1135-1160

  Taft, Lee ^a  

^a NONE

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EID: 0012399375     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: 10.2307/797485     Document Type: Review

References (117)

1. Barbara Amiel, Saying Sorry Is Fine, but Only to a Point, MACLEAN'S, May 25, 1998, at 11.
2. See, e.g., Groppi v. Leslie, 404 U.S. 496, 506 n.11 (1972) (finding an apology to be a mitigating factor in the assessment of penalties for contempt); Johnson v. Smith, 890 F. Supp. 726, 729 n.6 (N.D. Ill. 1995) (viewing an apology as a mitigating factor in the assessment of punitive damages); Phinney v. Vinson, 605 A.2d 849, 850 (Vt. 1992) (finding the defendant doctor's apology to be admissible as an admission against interest but insufficient in itself to establish breach of standard of care). For a survey of such cases, see Peter H. Rehm & Denise R. Beatty, Legal Consequences of Apologizing, 1996 J. DISP. RESOL. 115, 119-28.
3. See, e.g., Jonathan R. Cohen, Advising Clients to Apologize, 72 S. CAL. L. REV. 1009 (1999); Stephen B. Goldberg et al., Saying You're Sorry, 3 NEGOTIATION J. 221 (1987); John O. Haley, The Implications of Apology, 20 L. & SOC'Y REV. 499 (1986); Aviva Orenstein, Apology Excepted: Incorporating a Feminist Analysis into Evidence Policy Where You Would Least Expect It, 28 SW. U. L. REV. 221 (1999); Rehm & Beatty, supra note 2; Hiroshi Wagatsuma & Arthur Rosett, The Implications of Apology: Law and Culture in Japan and the United States, 20 L. & SOC'Y REV. 461 (1986); Deborah L. Levi, Note, The Role of Apology in Mediation, 72 N.Y.U. L. REV. 1165, 1183 (1997); Marshall H. Tanick & Teresa J. Ayling, Alternative Dispute Resolution by Apology: Settlement by Saying "I'm Sorry," HENNEPIN LAW., July-Aug. 1996, at 22.
4. See, e.g., Jonathan R. Cohen, Advising Clients to Apologize, 72 S. CAL. L. REV. 1009 (1999); Stephen B. Goldberg et al., Saying You're Sorry, 3 NEGOTIATION J. 221 (1987); John O. Haley, The Implications of Apology, 20 L. & SOC'Y REV. 499 (1986); Aviva Orenstein, Apology Excepted: Incorporating a Feminist Analysis into Evidence Policy Where You Would Least Expect It, 28 SW. U. L. REV. 221 (1999); Rehm & Beatty, supra note 2; Hiroshi Wagatsuma & Arthur Rosett, The Implications of Apology: Law and Culture in Japan and the United States, 20 L. & SOC'Y REV. 461 (1986); Deborah L. Levi, Note, The Role of Apology in Mediation, 72 N.Y.U. L. REV. 1165, 1183 (1997); Marshall H. Tanick & Teresa J. Ayling, Alternative Dispute Resolution by Apology: Settlement by Saying "I'm Sorry," HENNEPIN LAW., July-Aug. 1996, at 22.
5. See, e.g., Jonathan R. Cohen, Advising Clients to Apologize, 72 S. CAL. L. REV. 1009 (1999); Stephen B. Goldberg et al., Saying You're Sorry, 3 NEGOTIATION J. 221 (1987); John O. Haley, The Implications of Apology, 20 L. & SOC'Y REV. 499 (1986); Aviva Orenstein, Apology Excepted: Incorporating a Feminist Analysis into Evidence Policy Where You Would Least Expect It, 28 SW. U. L. REV. 221 (1999); Rehm & Beatty, supra note 2; Hiroshi Wagatsuma & Arthur Rosett, The Implications of Apology: Law and Culture in Japan and the United States, 20 L. & SOC'Y REV. 461 (1986); Deborah L. Levi, Note, The Role of Apology in Mediation, 72 N.Y.U. L. REV. 1165, 1183 (1997); Marshall H. Tanick & Teresa J. Ayling, Alternative Dispute Resolution by Apology: Settlement by Saying "I'm Sorry," HENNEPIN LAW., July-Aug. 1996, at 22.
6. See, e.g., Jonathan R. Cohen, Advising Clients to Apologize, 72 S. CAL. L. REV. 1009 (1999); Stephen B. Goldberg et al., Saying You're Sorry, 3 NEGOTIATION J. 221 (1987); John O. Haley, The Implications of Apology, 20 L. & SOC'Y REV. 499 (1986); Aviva Orenstein, Apology Excepted: Incorporating a Feminist Analysis into Evidence Policy Where You Would Least Expect It, 28 SW. U. L. REV. 221 (1999); Rehm & Beatty, supra note 2; Hiroshi Wagatsuma & Arthur Rosett, The Implications of Apology: Law and Culture in Japan and the United States, 20 L. & SOC'Y REV. 461 (1986); Deborah L. Levi, Note, The Role of Apology in Mediation, 72 N.Y.U. L. REV. 1165, 1183 (1997); Marshall H. Tanick & Teresa J. Ayling, Alternative Dispute Resolution by Apology: Settlement by Saying "I'm Sorry," HENNEPIN LAW., July-Aug. 1996, at 22.
7. See, e.g., Jonathan R. Cohen, Advising Clients to Apologize, 72 S. CAL. L. REV. 1009 (1999); Stephen B. Goldberg et al., Saying You're Sorry, 3 NEGOTIATION J. 221 (1987); John O. Haley, The Implications of Apology, 20 L. & SOC'Y REV. 499 (1986); Aviva Orenstein, Apology Excepted: Incorporating a Feminist Analysis into Evidence Policy Where You Would Least Expect It, 28 SW. U. L. REV. 221 (1999); Rehm & Beatty, supra note 2; Hiroshi Wagatsuma & Arthur Rosett, The Implications of Apology: Law and Culture in Japan and the United States, 20 L. & SOC'Y REV. 461 (1986); Deborah L. Levi, Note, The Role of Apology in Mediation, 72 N.Y.U. L. REV. 1165, 1183 (1997); Marshall H. Tanick & Teresa J. Ayling, Alternative Dispute Resolution by Apology: Settlement by Saying "I'm Sorry," HENNEPIN LAW., July-Aug. 1996, at 22.
8. See, e.g., Jonathan R. Cohen, Advising Clients to Apologize, 72 S. CAL. L. REV. 1009 (1999); Stephen B. Goldberg et al., Saying You're Sorry, 3 NEGOTIATION J. 221 (1987); John O. Haley, The Implications of Apology, 20 L. & SOC'Y REV. 499 (1986); Aviva Orenstein, Apology Excepted: Incorporating a Feminist Analysis into Evidence Policy Where You Would Least Expect It, 28 SW. U. L. REV. 221 (1999); Rehm & Beatty, supra note 2; Hiroshi Wagatsuma & Arthur Rosett, The Implications of Apology: Law and Culture in Japan and the United States, 20 L. & SOC'Y REV. 461 (1986); Deborah L. Levi, Note, The Role of Apology in Mediation, 72 N.Y.U. L. REV. 1165, 1183 (1997); Marshall H. Tanick & Teresa J. Ayling, Alternative Dispute Resolution by Apology: Settlement by Saying "I'm Sorry," HENNEPIN LAW., July-Aug. 1996, at 22.
9. See, e.g., Jonathan R. Cohen, Advising Clients to Apologize, 72 S. CAL. L. REV. 1009 (1999); Stephen B. Goldberg et al., Saying You're Sorry, 3 NEGOTIATION J. 221 (1987); John O. Haley, The Implications of Apology, 20 L. & SOC'Y REV. 499 (1986); Aviva Orenstein, Apology Excepted: Incorporating a Feminist Analysis into Evidence Policy Where You Would Least Expect It, 28 SW. U. L. REV. 221 (1999); Rehm & Beatty, supra note 2; Hiroshi Wagatsuma & Arthur Rosett, The Implications of Apology: Law and Culture in Japan and the United States, 20 L. & SOC'Y REV. 461 (1986); Deborah L. Levi, Note, The Role of Apology in Mediation, 72 N.Y.U. L. REV. 1165, 1183 (1997); Marshall H. Tanick & Teresa J. Ayling, Alternative Dispute Resolution by Apology: Settlement by Saying "I'm Sorry," HENNEPIN LAW., July-Aug. 1996, at 22.
10. See Cohen, supra note 3; Orenstein, supra note 3.
11. See, e.g., Cohen, supra note 3, at 1013 (arguing in favor of increased utilization of apology); Orenstein, supra note 3, at 223 (proposing an exception to existing evidentiary rules admitting apology as hearsay exception); Rehm & Beatty, supra note 2 (arguing in favor of statutorily constructed safe harbors for apology); Tanick & Ayling, supra note 3 (arguing for strategic use of apology in mediation); see also STEPHEN B. GOLDBERG ET AL., DISPUTE RESOLUTION 159-62 (3d ed. 1999) (discussing the potential for apology to further mediation efforts).
12. Margaret Jane Radin, Compensation and Commensurability, 43 DUKE L.J. 56, 56 (1993).
13. Id.
14. See id. at 60-62.
15. The offender demonstrates regard in his willingness to apologize, and the offended reflects regard when he chooses to forgive. In law this is a process that would often occur between strangers, so I do not envision that the restoration of regard would necessarily lead to a close interpersonal relationship. Rather, I envision a process in which the offender and the offended would each see and embrace the other's humanity and would recognize that each occupies a place in the wider circle we call life. The process I envision is similar to that described by Desmond Tutu in his explanation of the African word Ubuntu: [Ubuntu] speaks about the essence of being human: that my humanity is caught up in your humanity because we say a person is a person through other persons . . . . [W]e set great store by communal peace and harmony. Anything that subverts this harmony is injurious, not just to the community, but to all of us, and therefore forgiveness is an absolute necessity for continued human existence. Archbishop Desmond Tutu, Without Forgiveness There Is No Future, Foreword to EXPLORING FORGIVENESS at xiii, xiii (Robert D. Enright & Joanna North eds., 1998).
16. NICHOLAS TAVUCHIS, MEA CULPA 36 (1991).
17. For example, the phrase "I'm sorry" can be interpreted as an expression of sympathy as well as an expression of remorse. See Rehm & Beatty, supra note 2, at 117.
18. TAVUCHIS, supra note 10, at 36.
19. See id. at 46.
20. Id. As I argue later, this idea of the essential aspect of the categories of the offender and the offended becomes especially significant in the context of civil litigation, where mediators and lawyers frequently forget this dynamic. See infra Part V.
21. The classic treatment of performative utterances is in J.L. Austin's William James Lectures at Harvard University in 1955, which are collected in J.L. AUSTIN, HOW TO DO THINGS WITH WORDS (J.O. Urmson & Marina Sbisà eds., 1975). In those lectures, Austin seeks to challenge the philosophical assumption "that to say something . . . is simply to state something." Id. at 12. To do this Austin contrasts performative utterances against constative utterances. See id. at 148. A constative utterance is one which can be judged true or false, like "the cat is on the mat." Id. at 146. In other cases, Austin shows that "to say something is to do something, or in saying something we do something, and even by saying something we do something." Id. at 94. Austin calls these utterances "performatives." Id. at 6. A familiar example of a performative utterance is the utterance "I do" when uttered by the principals in the course of a marriage ceremony. See id. at 5. Austin likewise describes "I apologize" to be a paradigmatic performative utterance. See id. at 79, 146. In this Essay, I rely on Austin's definition and then examine the moral dimension of what is said and done through the utterance of the performatives, "I apologize" or "I am sorry."
22. TAVUCHIS, supra note 10, at 64.
23. See AUSTIN, supra note 15, at 79; see also JORAM GRAF HABER, FORGIVENESS 100 (1991).
24. TAVUCHIS, supra note 10, at 23; see also Steven J. Scher & John M. Darley, How Effective Are the Things People Say To Apologize? Effects of the Realization of the Apology Speech Act, 26 J. PSYCHOLINGUISTIC RES. 127, 130 (1997).
25. See Scher & Darley, supra note 18, at 130.
26. See TAVUCHIS, supra note 10, at 3.
27. See Orenstein, supra note 3, at 239; Scher & Darley, supra note 18, at 138; Wagatsuma & Rosett, supra note 3, at 469-70.
28. Aaron Lazare, Go Ahead Say You're Sorry, PSYCHOL. TODAY, Jan.-Feb. 1995, at 40, 40.
29. See id. 24. Id. at 76 (quoting President Nixon's resignation speech of August 8, 1974).
30. See id.
31. Id. (quoting Senator Packwood).
32. See id. at 78.
33. Id.
34. Id. Others object not only for the reason suggested by Lazare, but also because the first attempt shifts the blame for the hurt to the offended party and, in this process, inflicts yet another offense. See SUSAN JACOBY, WILD JUSTICE: THE EVOLUTION OF REVENGE 347-48 (1983).
35. See Lazare, supra note 22, at 78; Levi, supra note 3, at 1183. Others would suggest that this is not necessarily an American value, but rather an American male value. See Deborah Tannen, I'm Sorry, I Won't Apologize, N.Y. TIMES, July 21, 1996, § 6 (Magazine), at 34. Tannen suggests that being male is itself an impediment to apology. See id. Pulitzer Prize-winning journalist Rick Bragg shares this observation in his recent autobiography. There, he describes the last time he saw his father, a wreck of a man who had abandoned his sons and his wife to a life of total poverty: He talked and talked and never said a word, at least not the words I wanted. He never said he was sorry. He never said he wished things had turned out different. He never acted like he did anything wrong. Part of it, I know, was culture. Men did not talk about their feelings in his hard world. I did not expect, even for a second, that he would bare his soul. All I wanted was a simple acknowledgment that he was wrong, or at least too drunk to notice that he left his pretty wife and sons alone again and again, with no food, no money, no way to get any, short of begging . . . . RICK BRAGG, ALL OVER BUT THE SHOUTTN' 12 (1997). For others, this kind of gender assignment remains only a stereotype and speaks to the importance of further study. See Levi, supra note 3, at 1184-86.
36. See Lazare, supra note 22, at 78; Levi, supra note 3, at 1183. Others would suggest that this is not necessarily an American value, but rather an American male value. See Deborah Tannen, I'm Sorry, I Won't Apologize, N.Y. TIMES, July 21, 1996, § 6 (Magazine), at 34. Tannen suggests that being male is itself an impediment to apology. See id. Pulitzer Prize-winning journalist Rick Bragg shares this observation in his recent autobiography. There, he describes the last time he saw his father, a wreck of a man who had abandoned his sons and his wife to a life of total poverty: He talked and talked and never said a word, at least not the words I wanted. He never said he was sorry. He never said he wished things had turned out different. He never acted like he did anything wrong. Part of it, I know, was culture. Men did not talk about their feelings in his hard world. I did not expect, even for a second, that he would bare his soul. All I wanted was a simple acknowledgment that he was wrong, or at least too drunk to notice that he left his pretty wife and sons alone again and again, with no food, no money, no way to get any, short of begging . . . . RICK BRAGG, ALL OVER BUT THE SHOUTTN' 12 (1997). For others, this kind of gender assignment remains only a stereotype and speaks to the importance of further study. See Levi, supra note 3, at 1184-86.
37. TAVUCHIS, supra note 10, at 35.
38. Id. at 20.
39. We could pause here and formulate a Kantian critique of this teleological perspective, which sees apology not as an end in itself, but rather as a means toward obtaining forgiveness. We could focus on the moral implications of an action taken in order to receive and ask questions that dissect the legitimacy of an apology performed with that intention. Such an analysis would find support in modern culture, especially in programs such as 12-step groups, which encourage the performance of apology without regard to potentially positive possibilities. While I leave this critique for another essay, I do address apologies deployed for utilitarian means. See infra Part III.
40. Indeed, it has been suggested that the topic has given rise to an emerging field of "forgiveness studies." Scott Heller, Emerging Field of Forgiveness Studies Explores How We Let Go of Grudges, CHRON. HIGHER EDUC., July 17, 1998, at A18. Noting that this is not a phenomenon limited to the United States, Heller cites studies in Northern Ireland, Rwanda, and South Africa. See id. at A18.
41. See, e.g., Jeffrie G. Murphy, Forgiveness and Resentment, in JEFFRIE G. MURPHY & JEAN HAMPTON, FORGIVENESS AND MERCY 14, 28 (1988).
42. See id. at 24.
43. See Jean Hampton, Forgiveness, Resentment and Hatred, in MURPHY & HAMPTON, supra note 35, at 35, 36 (discussing Murphy's views).
44. See HABER, supra note 17, at 6; Murphy, supra note 35, at 24.
45. See Murphy, supra note 35, at 16.
46. Murphy's reference to Marx is one example of his concern with the premature expression of forgiveness. Murphy suggests that when Marx leveled his critique of religion as "opiate of the masses," he must have meant to "suggest that Christianity ha[d] encouraged the development of meek and forgiving dispositions that will tolerate oppression, and that will call that toleration virtue." Jeffrie G. Murphy, Introduction to MURPHY & HAMPTON, supra note 35, at 1, 9. Here, Murphy offers a critique of an inappropriate expression of forgiveness, not a condemnation of the concept.
47. See Murphy, supra note 35, at 17-18.
48. Id. at 26.
49. JACOBY, supra note 29, at 347.
50. HABER, supra note 17, at 98 (describing Jacoby's views).
51. For a discussion of my understanding of healing, see supra notes 6-9 and accompanying text.
52. It also suggests that Murphy is not considering the negative consequences of maintaining resentment. Psychologist Phillip McGraw notes that there are both physical and emotional costs to such a stance: "When you harbor hatred, anger, and resentment, your body's chemical balance is dramatically disrupted. Your 'fight-or-flight' responses stay aroused twenty-four hours a day, seven days a week. That means that hatred, anger, and resentment are absolutely incompatible with your peace, joy, and relaxation." PHILLIP C. MCGRAW, LIFE STRATEGIES: DOING WHAT WORKS, DOING WHAT MATTERS 201 (1999).
53. There are two points here. First, apology is potentially more valuable to those who share Murphy's perspective. While I acknowledge that an apology may have more value to this group, I believe apology has value even for those whose religious and philosophical location encourages forgiveness without regard to apology. In short, I think apology is valuable in the process of forgiveness for all human beings, but I highlight its special value for those, like Murphy, who insist on apology as a condition precedent to forgiveness. My second point is to identify those who would argue against Murphy's view that apology is a condition precedent to forgiveness. In this category would be ethicists like Haber who see that "[t]he wrongdoer need not be involved in any way for forgiveness to occur." HABER, supra note 17, at 11. From this perspective, forgiveness is a virtue that can occur unilaterally and internally. This view maintains moral power in the offended agent, and, consequently, the offended party's moral stance is not tied to that of the offender. The offended can choose to forgive whether or not the offender chooses to engage in the performative act of apology. This is a process a client demonstrated for me several years ago when he chose not to sue a real estate agent who, although a longtime friend, had forged the client's signature on a contract and then forwarded the client's check to the title company in a desperate attempt to force a sale. The client was initially in an understandable state of indignation. We quickly stopped payment on the check and, with the title company's cooperation, voided the transaction. While the damage was minimal, the client remained resentful, the agent uncontrite. A year or so later my client heard the agent was dying in a local hospital. The client reflected on the agent's desperate act, a reflection that caused him to recall the agent's equally desperate financial situation. My client decided to forgive. He went to the hospital to talk with the agent, expressed his sorrow that the friendship had been lost, and expressed forgiveness. My client said there was a warm conversation, an expression of gratitude by the agent that my client had come, yet the agent did not apologize. The agent died the next morning. Under Murphy's view, my client's claim that he had overcome his resentment would not be morally justified because there was no apology on which the overcoming of resentment could be based. Proponents of unilateral forgiveness would view my client's action as inherently moral because he chose not to harm himself by maintaining a negative spiritual and psychological state, and because he chose to embrace the humanity of the agent. By seeing the agent's brokenness, my client was able to forgive. While helpful in offering insight into the experience of unilateral forgiveness, this illustration also suggests that forgiveness is better understood as a process than as a single event. My client's movement to forgiveness, while unilateral, occurred over a year-long period. It is also important to note that the damage my client suffered was minimal. Would unilateral forgiveness have been attained after catastrophic loss? If so, rather than occurring over a year, might the process have taken a lifetime? Questions such as these reflect my view that forgiveness is a complicated and difficult process regardless of whether one agrees with Murphy or embraces the idea of unilateral forgiveness I describe here. My lived experience suggests that, regardless of one's ethical location, apology can serve as a catalyst to forgiveness, even if only by abbreviating the temporal dimension my client's narrative suggests. This means that apology has potential value for anyone who embraces forgiveness as a desirable moral goal.
54. Margaret Jane Radin, On the Domain of Market Rhetoric, 15 HARV. J.L. & PUB. POL'Y 711, 711 (1992); see supra text accompanying notes 6-8.
55. Radin, supra note 48, at 711.
56. Id. at 724.
57. Of course, it is not only in the legal arena that the moral dimension of apology is subverted. Children are frequently forced to apologize as a condition of receiving a benefit. Whenever an apology is forced or used as a part of a bargained-for exchange, its moral dimension is potentially disrupted. I use the word "potentially" because I recognize that repentance is not always noninstrumental. See infra note 100 and accompanying text.
58. See In re Coe, 903 S.W.2d 916 (Mo. 1995) (en banc).
59. See id. at 917. Here Coe illustrates the point the U.S. Supreme Court made when it noted that "modification of contempt penalties is common where the contemnor apologizes or presents matter in mitigation." Groppi v. Leslie, 404 U.S. 496, 506 n.11 (1972).
60. See Coe, 903 S.W.2d at 920 (Covington, J., dissenting).
61. Id. at 919 (Robertson, J., concurring).
62. See id. at 918.
63. Id. at 919 (Robertson, J., concurring).
64. Id. at 921 (Covington, J., dissenting).
65. The financial advantage seems self-evident. What lawyer wants to lose six months of practice?
66. Levi, supra note 3, at 1169.
67. Id. at 1171 (citations omitted).
68. Tanick & Ayling, supra note 3, at 22-23. I use the term lawyer-mediator to make two points: Tanick and Ayling are lawyers and mediators, and not all mediators are lawyers.
69. Id. at 22.
70. Id. "Admission" as used here is a technical term referring to evidentiary rules that allow a statement to be introduced into evidence if the statement conveys a message that would generally be considered to be contrary to one's best interests.
71. Id.
72. Id. at 23.
73. Id. at 25.
74. Levi, supra note 3, at 1176.
75. Id.
76. Id.
77. Id.
78. TAVUCHIS, supra note 10, at 62.
79. Id.
80. See supra notes 30-31 and accompanying text.
81. See, e.g., Cohen, supra note 3, at 1028-30; Orenstein, supra note 3, at 229-36; see also infra note 94 (examining Cohen and Orenstein's support for such evidentiary rules).
82. Wagatsuma & Rosett, supra note 3, at 495.
83. See Levi, supra note 3, at 1188.
84. Id.
85. Deborah Tannen, About Last Week . . . Apologies: What It Means To Say "Sorry," WASH. POST, Aug. 23, 1998, at C1.
86. Id. at C1.
87. Tanick & Ayling, supra note 3, at 22.
88. The legislative history of this bill reveals little substantive information. The bill was sponsored by State Senator Robert C. Buell and former Senator William L. Saltonstall. In a phone interview with former Senator Buell, I learned that he was asked by former Senator Saltonstall to sponsor the bill for the reasons outlined in the text. Telephone Interview with Senator Robert C. Buell (Apr. 25, 1999). Senator Buell did not recall any debate about the moral implications of a protected apology, and research of the legislative history and media reveals none.
89. MASS. GEN. LAWS ANN. ch. 233, § 23D (West Supp. 1998).
90. Id.
91. See TEX. CIV. PRAC. & REM. CODE ANN. § 18.061 (West 1999).
92. See Sorry's Safe Now, AUSTIN AM.-STATESMAN, July 2, 1999, at A14.
93. Rehm & Beatty, supra note 2, at 129.
94. Id.
95. Id.
96. Id. at 130.
97. In fact, the Texas statute is explicit in this regard: Notwithstanding the provisions of Subsections (a) and (b), a communication, including an excited utterance as defined by Rule 803(2) of the Texas Rules of Evidence, which also includes a statement or statements concerning negligence or culpable conduct pertaining to an accident or event, is admissible to prove liability of the communicator. TEX. CIV. PRAC. & REM. CODE ANN. § 18.061 (West 1999).
98. See supra notes 22-29 and accompanying text.
99. Recall that the Texas statute authorizes the admissibility of communications concerning negligence or culpable conduct. See supra note 91. One might therefore conclude that the Texas legislature considered the moral implications of a protected apology. I interviewed John Fleming, who had suggested the bill to its sponsor, Representative Patricia Gray. Fleming explained that he had suggested the bill to Representative Gray after learning of the Massachusetts statute. He also explained that the provision contained in subsection (c) had been added in response to objections from the plaintiffs' trial association, Texas Trial Lawyers Association, an objection tied to trial advantage and not moral considerations. He acknowledged that the moral issues posed here had not been considered. Telephone Interview with John Fleming (Sept. 2, 1999).
100. Orenstein, for example, argues for a rule modification even more expansive than that provided by either the Massachusetts or Texas statutes. She proposes an absolute exception to those evidentiary rules that would admit apology into evidence so that "[a]ny statement of self-blame and contrition would be inadmissible, as would be the surrounding facts." Orenstein, supra, note 3, at 247. Under this plan, expressions of contrition or acknowledgments of blame could never "in themselves be admitted as evidence of negligence or wrongdoing." Id. at 248. Orenstein's proposal would supplant existing evidentiary rules that she likens to "the law of the sandbox": "Ha, ha, you said it, now you're stuck with your own admission." Id. at 249. According to her, "[T]hough it might be maddening for a defendant . . . to deny in court what it admitted in an apology, the plaintiff on balance is better off . . . ." Id. at 255. Maddening? The plaintiff in the scenario Orenstein describes is actually in a worse position because of the protection Orenstein's proposal would extend. Now, instead of suffering only from the original injury, the plaintiff must suffer exacerbation of that injury by being forced to prove fault in spite of the defendant's admission. This exacerbation arises not only from the additional expense required to show fault but also from the additional moral indignation the plaintiff must suffer because of Orenstein's evidentiary exception. Cohen agrees with Orenstein that "the law ought to be changed to foster apology." Jonathan R. Cohen, Nagging Problem: Advising the Client Who Wants To Apologize, DISP. RESOL. MAG., Spring 1999, at 19. Indeed, he feels that a "goal of the law in this area should be to permit an offender to make a full and 'safe' apology immediately after the injury or at any time thereafter, should he so choose." Cohen, supra note 3, at 1061. Cohen states that a strength of such a "safe" apology is that it gives "the injured party maximal psychological satisfaction at the minimal legal exposure to the offender." Id. at 1051 n.139. He argues that the "safe" apology uncouples the issue of apology from the issue of liability. Id. at 1067. Cohen believes that this uncoupling is beneficial because it helps avoid much needless conflict and the adding of insult to injury. It is clear how this is beneficial to the offender. After all, the offender has an opportunity to unburden himself with "minimal legal exposure." Yet, like Orenstein, Cohen fails to appreciate how a "safe" apology potentially exacerbates the plaintiff's injury, how a safe apology can occur at the offended's expense. If the offender is truly contrite, why not admit liability and allow the case to proceed on damages alone? Trials can be bifurcated so that liability can be considered separately from damages. This means that the admission of wrongdoing can be made while the offender maintains the opportunity to dispute differing perceptions of the consequences of the wrongful act. Some might argue that conceding liability while contesting damages is the equivalent of a botched apology. I disagree. A botched apology overlooks fault; it refuses to accept responsibility. In an admission of liability, the offender accepts fault and responsibility for the wrongful act. By separating liability issues from those regarding damages, the offender says only that he disagrees with the quantitative assessment of the harm caused. In accepting liability, the wrongdoer is "owning up" to the fact that harm has been caused by a moral transgression, and by trying damages, he asks help from outsiders in evaluating the cost of that harm. Considered in this way, the "maddening" effect described by Orenstein is avoided, and the potential for healing for both parties is attained.
101. See In re Cleveland, No. 395-30342-RCM-7 (Bankr. N.D. Tex. May 18, 1995).
102. I am intentionally addressing my own feelings here and choosing to talk about how this incident affected me. I am not speaking for my partner.
103. This question is, of course, hypothetical. It assumes that the law would grant me legal rights in my partner's cause of action, such as the right of consortium granted to the non-physically injured spouse in a heterosexual marriage. No state allows this kind of recovery to members of same-sex partnerships.
104. I ask the question in this way in order to recall the moral requirements insisted on by philosophers like Murphy, and also to recall the discussion of unilateral forgiveness, where forgiveness is imagined without regard to the expressed contrition of the offender. See supra note 47.
105. It is imperative that the reader understand that I speak only of my resentment, since I have no moral right to exercise vicarious forgiveness. This is a point made clear by both Tavuchis and Murphy, but perhaps most poignantly by Dostoevsky. In a vignette from The Grand Inquisitor, Ivan recalls the story of an eight-year-old "serf boy" who threw a stone and injured a dog that was a favorite of the general who ruled the land. As punishment, the general had the boy "stripped naked" and then forced him to run. See FYODOR DOSTOEVSKY, THE BROTHERS KARAMAZOV 243 (Richard Pevear & Larissa Volokhonsky trans., Alfred A. Knopf 1990) (1880). The hounds caught him and tore him to pieces before his mother's eyes. Ivan suggests that there should be no forgiveness, at least no vicarious forgiveness, by the mother on behalf of her dead child: "Let her forgive him for herself, if she wants to, let her forgive the tormentor her immeasurable maternal suffering; but she has no right to forgive the suffering of her child who was torn to pieces . . . ." Id. at 245.
106. It is important that the reader note the phrase "potentially corrupted." I use this phrase to hold open the idea that an apology can be prompted by a lawyer or mediator and retain moral integrity. A call to repent does not have to be purely noninstrumental and uninfluenced by anyone outside of the offender; that is, the call for repentance may arise externally, lead to apology, and the apology maintain its moral integrity. In fact, learning to hear the call to repent and to respond to that call is a part of a maturation process, one that requires attention and care, like the process by which human beings learn to share and consider others. This means that lawyers and mediators have the opportunity to contribute, by influence and example, to an essential humanizing process. A mediator friend told me of an occurrence that beautifully illustrates this point. He was mediating a case that involved the wrongful death of a teenage child. The mediation was stalled. The child's father said he wanted to talk with the corporation president in a room with only him, the president, and the mediator present. This was laboriously arranged. In that session, the father explained why he thought the president and the company were responsible for his child's death, how through a father's eyes it appeared to him that his child had been murdered. The corporate president listened, then acknowledged that he himself had a teenager and, with tears of shame and remorse, apologized. After that meeting, the parties were able to resolve the case.
107. TAVUCHIS, supra note 10, at 62.
108. I refer only to the healing opportunities of apologetic discourse. As stated earlier, I believe that the offended can forgive unilaterally, and thereby heal without regard to the actions of the offending party. That is, I believe that forgiveness effected unilaterally can restore moral balance. See supra note 47.
109. See 14 OXFORD ENGLISH DICTIONARY 338-39 (2d ed. 1989) (defining "sacred" as either holy in a religious sense or inviolate); see also WEBSTER'S NEW WORLD COLLEGE DICTIONARY 1180 (3d ed. 1996) (same).
110. See 14 OXFORD ENGLISH DICTIONARY 338-39 (2d ed. 1989) (defining "sacred" as either holy in a religious sense or inviolate); see also WEBSTER'S NEW WORLD COLLEGE DICTIONARY 1180 (3d ed. 1996) (same).
111. See supra note 14 and accompanying text.
112. As suggested earlier, other cultural constructions, like gender, should be considered. I would also suggest considering religious attitudes as they affect the moral process outlined in this Essay. Judaism, Christianity, Islam, Buddhism, and Hinduism each have particular theological perspectives regarding forgiveness, points of view that are relevant to this discussion. See Ann Kathleen Bradley, Seeking Forgiveness in the World's Spiritual Traditions, SPIRITUALITY & HEALTH, Winter 1999, at 29. In Judaism, for example, forgiveness is not automatic, but must be earned through the process of t'shuvah (literally "return"), which requires contrition on the part of the offender. See id. Forgiveness is central to the Christian message and is to be unconditionally granted. See id. at 29-32. In Islam, as in Judaism, forgiveness is balanced with justice. See id. at 32-34. Buddhism views forgiveness as a natural result of the realization that we are all connected, that forgiveness of another is actually forgiveness of ourselves, that what one is doing to us is something we might have done to another over many lifetimes. See id. at 34-35. This last idea resonates with concepts of forgiveness in Hinduism, where the idea is that forgiveness interrupts negative cycles captured in concepts of karma. See id. at 35. This brief summary suggests how a party's religious location might influence a mediation stance.
113. I am not arguing that a protected apology has no utility or that it can never benefit the offended. In fact, Senator Buell advised me that, in drafting the Massachusetts bill. Senator Saltonstall believed that just hearing the words "I'm sorry" could be soothing. See supra note 82. What I am suggesting is that it is important that the victim understand the significance of a protected apology before relinquishing important legal rights. This points to the lawyer's role.
114. This was apparently President Clinton's position in the Paula Jones debacle. There, Jones alleged that Clinton had made inappropriate sexual advances in a hotel while he was Governor of Arkansas. Jones demanded an apology. Later, after the Lewinsky matter surfaced, Clinton paid $850,000 to settle the matter with Jones but refused to apologize. See Neil A. Lewis, Clinton Settles Jones Lawsuit with a Check for $850,000, N.Y. TIMES, Jan. 13, 1999, at A14. If the President was indeed not contrite, this was an appropriate moral choice. Yet, in light of the progressive apology in the Lewinsky matter, it is difficult to assign moral value to the President's behavior. After all, Jones was unable to produce the kind of evidence that prompted the apology by Clinton to Lewinsky and the citizens of the United States. This allows room to wonder whether the President was actually not contrite or, perhaps, not caught by Jones in the vise created by Lewinsky's now famous blue dress.
115. The idea that law schools should participate in their students' moral education is controversial. Clinical Professor Mary Jo Eyster thinks this is a crucial responsibility, especially in the realm of negotiation. See Mary Jo Eyster, Clinical Teaching, Ethical Negotiation and Moral Judgment, 75 NEB. L. REV. 752 (1996). But see Lee Modjeska, On Teaching Morality to Law Students, 41 J. LEGAL EDUC. 71, 71-73 (1991). Professor Modjeska takes the opposite position, holding that a law classroom is not the place for moral instruction. Modjeska's words reflect the public's worst perception of lawyers' morality when he states: "Would I represent the accused murderer, rapist, narcotics dealer? I would - and have. Would their ultimate guilt or innocence be relevant to me? It would not. Would I represent alleged members of organized crime? I would and have. Would their nefarious activities be relevant to me? They would not." Id. at 72. Leaving no room for doubt as to his opinion regarding a lawyer's role in the moral arena, Modjeska concludes, "Although I would certainly counsel legality, I would not counsel righteousness. I would not advise them - nor therefore the student - to go and sin no more. Nor would my professional retainer encompass such a pastoral role." Id. Reflection on Modjeska's words leads us to see that the controversy is about which morality to teach rather than whether morality should be taught at all.
116. The idea that law schools should participate in their students' moral education is controversial. Clinical Professor Mary Jo Eyster thinks this is a crucial responsibility, especially in the realm of negotiation. See Mary Jo Eyster, Clinical Teaching, Ethical Negotiation and Moral Judgment, 75 NEB. L. REV. 752 (1996). But see Lee Modjeska, On Teaching Morality to Law Students, 41 J. LEGAL EDUC. 71, 71-73 (1991). Professor Modjeska takes the opposite position, holding that a law classroom is not the place for moral instruction. Modjeska's words reflect the public's worst perception of lawyers' morality when he states: "Would I represent the accused murderer, rapist, narcotics dealer? I would - and have. Would their ultimate guilt or innocence be relevant to me? It would not. Would I represent alleged members of organized crime? I would and have. Would their nefarious activities be relevant to me? They would not." Id. at 72. Leaving no room for doubt as to his opinion regarding a lawyer's role in the moral arena, Modjeska concludes, "Although I would certainly counsel legality, I would not counsel righteousness. I would not advise them - nor therefore the student - to go and sin no more. Nor would my professional retainer encompass such a pastoral role." Id. Reflection on Modjeska's words leads us to see that the controversy is about which morality to teach rather than whether morality should be taught at all.
117. See Jeremiah Creedon, To Hell and Back: To Break the Cycle of Revenge Countries Must Look Beyond the Law, UTNE READER, Mar.-Apr. 1999, at 56 (quoting the view of Harvard law professor Martha Minow).