Say you're sorry: Court-ordered apologies as a civil rights remedy

Cornell Law Review

Volumn 91, Issue 6, 2006, Pages 1261-1311

  White, Brent T ^a  

^a UNIVERSITY OF ARIZONA   (United States)

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EID: 33749681693     PISSN: 00108847     EISSN: None     Source Type: Journal    
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References (335)

1. See, e.g., NICHOLAS TAVUCHIS, MEA CULPA: A SOCIOLOGY OF APOLOGY AND RECONCILIATION 90-98 (1991) (discussing the general reluctance of collectivities to apologize);
2. Jeremiah Marquez, Apology in L.A. Shooting Rare from Police, SAVE OUR CIVIL LIBERTIES, May 31, 2005, available at http://www.saveourcivilliberties. org/en/2005/05/1152.shtml (describing a police apology as "a rare instance of officers defying a common police taboo against 'mea culpas'");
3. WPRI-12 Eyewitness News, Court Ruling on Narragansett Smokeshop Raid (Fox television broadcast, May 12, 2005) (discussing Rhode Island's refusal to apologize after a federal appeals court found that the state violated the sovereignty of the Narragansett tribe).
4. See Jennifer K. Robbennolt et al., Symbolism and Incommensurability in Civil Sanctions: Decision Makers as Goal Managers, 68 BROOK. L. REV. 1121, 1147 n.114 (2003) (noting that court-ordered apologies are not available as a civil remedy in the United States). Countries in which court-ordered apologies are a civil legal remedy include at least China, Japan, Indonesia, Ukraine, Korea, and the Czech Republic. Information on other countries is not readily available. Much has been written on the availability of apology as a legal remedy in Japan, however.
5. See Max Bolstad, Learning from Japan: The Case for Increased Use of Apology in Mediation, 48 CLEV. ST. L. REV. 545 (2000);
6. John O. Haley, Comment, The Implications of Apology, 20 LAW & SOC'Y REV. 499, 500 (1986);
7. Hiroshi Wagatsuma & Arthur Rosett, The Implications of Apology: Law and Culture in Japan and the United States, 20 LAW & SOC'Y REV. 461, 488-92 (1986);
8. see also Dai-Kwon Choi, Freedom of Conscience and the Court-Ordered Apology for Defamatory Remarks, 8 CARDOZO J. INT'L & COMP. L. 205 (2000) (discussing apology in Korea);
9. Brent T. Yonehara, Enter the Dragon: China's WTO Accession, Film Piracy and Prospects for Enforcement of Copyright Laws, 12 DEPAUL-LCA J. ART & ENT. L. & POL'Y 63, 83-85 (2002) (noting that apology is a remedy for copyright infringement in China);
10. Court to Hear Civil Action Against "AWSJ," JAKARTA POST, May 18, 2005, at 4 (reporting a civil suit by an American lobbyist who sought $50 million in damages and a formal apology in an Indonesian court, alleging that an article falsely accused him of bribery);
11. Yanukovych Ordered to Apologize to Veteran, Pay Fine, INTERFAX, May 19, 2005, available at http://www.interfax.ru/e/B/0/28.html?id_issue=11293945 (reporting that a Kiev court ordered former Ukrainian prime minister Viktor Yanukovych to apologize publicly to a man whom he had insulted by using an obscenity).
12. See, e.g., Debra Barayuga, City Sued over Family Day Event, HONOLULU STAR-BULL., July 15, 2003, available at http://starbulletin.com/2003/07/15/news/ story5.html.
13. See Plaintiffs Complaint for Injunctive Relief at ¶ 57, PFLAG v. City and County of Honolulu (No. _) (settled) (on file with author).
14. See id. at ¶¶ 73, 79.
15. PFLAG was represented by the American Civil Liberties Union of Hawaii, of which I was Legal Director at the time. While I have provided sources whenever possible, some representations made in regard to facts surrounding this case are based on personal knowledge and experience. For news accounts of this case, see Gay Groups Denied Participation in Honolulu Parade, ADVOCATE, June 28, 2003, available at http://www.advocate.com/news_detail_ ektid10006.asp;
16. Craig Gima, ACLU Files Suit over City Parade, HONOLULU STAR-BULL., June 23, 2003, at A1 [hereinafter Gima, ACLU Files Suit];
17. Craig Gima, Judge Signals Support for Gays in Kids' Parade, HONOLULU STAR-BULL., July 2, 2003, at A1;
18. Curtis Lum, Ruling Expected on Gays in Parade, HONOLULU ADVERTISER, July 2, 2003, at B1;
19. Mary Kaye Ritz, ACLU Sues City in Parade Rejection, HONOLULU ADVERTISER, June 28, 2003, at B1.
20. See Gima, ACLU Files Suit, supra note 6 (quoting City of Honolulu spokesperson Carol Costa).
21. See Mary Adamski, ACLU Deal Separates Church from July 3 Park Festivities, HONOLULU STAR-BULL., June 23, 2004, at A3;
22. David Waite, City to Open Parades to All, HONOLULU ADVERTISER, June 24, 2004, at B1.
23. Waite, supra note 8.
24. See id. As background, PFLAG originally moved for a temporary restraining order to prevent the City from excluding it from the parade. See David Waite, Parade Dispute Could Lead to City Guidelines, HONOLULU ADVERTISER, July 9, 2005 [hereinafter Waite, Parade Dispute]. Despite the fact that City employees had planned the parade, the City responded by stating that it was not actually sponsoring the parade and was merely providing logistical support to the Hawaii Christian Coalition. See id. Simultaneously, the Hawaii Christian Coalition threatened in the press to cancel the parade and leave thousands of children disappointed if the judge ordered that it allow PFLAG to join.
25. See Craig Gima, Ruling Set for Tomorrow in Suit over 'Family Day' Parade Access, HONOLULU STAR-BULL.,July 2, 2003, available at http://starbulletin.com/ 2003/07/02/news/stoiy8.html; Lum, supra note 6. The judge blinked, denied PFLAG's motion, and the lesbian and gay families of Honolulu were confined to protest from the sidelines.
26. See Editorial, City Doubletalk Wins in Court Case on Family Parade, HONOLULU STAR-BULL., July 5, 2003, at A11;
27. Craig Gima, Judge Says Parade Can Exclude Gay Groups, HONOLULU STAR-BULL., July 4, 2003, at A1;
28. David Waite, Ruling Supports Parade Organizers, HONOLULU ADVERTISER, July 4, 2003, at B3. When the case did not go away following the parade, the judge encouraged the City to settle amid mounting evidence that the City funded and organized the parade. See Waite, Parade Dispute, supra note 10.
29. While PFLAG could have gone to trial and sought nominal damages and a declaratory judgment, it would not have received injunctive relief, as the parade had already passed. Moreover, as will be discussed in greater detail, nominal damages and declaratory judgments lack the expressive value of an apology. See infra notes 101-03, 131 and accompanying text.
30. Waite, supra note 8.
31. The spin was as follows: "This global settlement reaffirms basic constitutional principles - the government cannot censor speech or exclude people from public events simply because officials do not agree with the participants' sexual orientation, gender identity or their message." See Press Release, ACLU, In Historic Court Victory for ACLU, Honolulu Agrees to Create New Rules Affirming Religious Neutrality and Free Speech (June 23, 2004), available at http://www.aclu.org/religion/frb/16355prs20040623.html.
32. Because of First Amendment concerns with compelling non-governmental actors to apologize, see infra Part IV.C, this article does not propose court-ordered apologies as a general civil remedy but rather as a limited remedy against the government in civil rights cases. The term "civil rights cases" refers to litigation claiming violations of constitutional rights and brought under any of the panoply of state and federal civil rights statutes.
33. See Lisa de Moraes, "CSI" Interruption: The Producer Did It!, WASH. POST, Nov. 12, 2004. available at http://www.washingtonpost.com/wp-dyn/ articles/A44123-2004Nov11. html. The apology read: "An overly aggressive CBS News producer jumped the gun with a report that should have been offered to local stations for their late news. We sincerely regret the error." Id.
34. See L.E. Campenella, Academy Sex Case a Teaching Moment, PATRIOT LEDGER, June 2, 2005, at 1.
35. See Slave Report Prompts Wachovia Contribution, ABC NEWS, June 3, 2005, available at http://abcnews.go.com/Business/wireStory?id=817603.
36. See Afghan Clerics Demand U.S. Apology for Alleged Quran Abuse, USA TODAY, June 14, 2005, available at http://www.usatoday.com/news/world/2005-06- 14-clerics-koran_x.htm.
37. Kentucky Catholic Diocese Offers Abuse Settlement, REUTERS, June 3, 2005, available at http://www.boston.com/news/nation/articles/2005/06/03/ kentucky_catholic_diocese_offers_abuse_ settlement/.
38. See Emil Guillermo, The Politics of Apology, ASIAN WEEK, June 2, 2005, at 5.
39. This ubiquity extends to popular television shows, where apologies are common fodder for plot lines. For example, an ongoing plot line on the sitcom Friends was Ross's refusal to apologize sincerely to Rachel for sleeping with another woman when they were "on a break." See Friends: The One with the Morning After (NBC television broadcast Feb. 20, 1997); Friends: The One with the Jellyfish (NBC television broadcast Sept. 25, 1997). Seinfeld devoted an episode to George's frustration over not receiving an apology from a friend going through the "making amends" part of a twelve-step program. See Seinfeld: The Apology (NBC television broadcast Dec. 11, 1997). The television drama ER has dedicated several shows to the issue of apology and medical malpractice. See ER: Where the Heart Is (NBC television broadcast May 10, 2001); ER: Forgive and Forget (NBC television broadcast Feb. 26, 2004). Apologies are also prevalent in popular music: Elton John's 1976 hit Sorry Seems to Be the Hardest Word spent fourteen weeks on the U.S. Billboard Top 40 chart, peaking at number six. See Paul Maclauchlan, Charting the Rocket Man: 30 Years of Elton John on the Pop Charts, http://www.vex.net/~paulmac/elton/ej_chart.html (last visited Apr. 21, 2006). Other artists have produced popular songs about apology. See, e.g., Howie Day with Sorry So Sorry, on MADRIGALS (Sony 2003), Eminem with Cleanin' Out My Closet, on EMINEM SHOW (Interscope Records 2002), Connie Francis with Who's Sorry Now? (MGM 1958), R. Kelly with Apologies of a Thug, on CHOCOLATE FACTORY (Bonus CD) (Jive 2003), S Club 8 with Don't Tell Me You're Sorry, on DON'T TELL ME YOU'RE SORRY (Universal 2003), Ruben Studdard of American Idol fame with Sorry 2004, on SOULFUL (J-records 2003), and UB40 with Sorry, on PROMISES AND LIES (Virgin Records 1993). Apologies strike at the heart of human experience. Indeed, if news reports are an indication, the importance of apology transcends culture.
40. See Bofors: BJP Ridicules Gong Demand for Apology, OUTLOOKINDIA.COM, June 2, 2005, http://www.outlookindia.com/pti_news.asp?id=301974 (reporting the Indian Bharatiya Janata Party's ridiculing of a rival party's demand for an apology from persons making allegations about former Indian Prime Minister Rajiv Gandhi);
41. De Lille Deserves Apology, Says ID Whip, INDEP. ONLINE, June 2, 2005, http://www.int.iol.co.za/index.php?set _id=1&click_id=15&art_id= qw1117715041427B223 (reporting a South African politician's demands for an apology after she received death threats for raising concerns about an arms deal);
42. Govt to Be Forced to Seek Apology for Incidents on DU Campus, BANGL. OBSERVER, June 4, 2005, available at http://www.bangladeshobserveronline.com/ new/2005/06/04/front.htm (reporting a Bangladeshi politician's call for a public apology for the government's alleged involvement in killings on the campus of Dhaka University);
43. Henin-Hardenne Cruises to French Title, TSN.CA, June 4, 2005, available at http://www.tsn.ca/tennis/french_open/ news_story.asp?ID=126950&hubName= tennis-french_open (reporting Mary Pierce's apology to the French people for losing the 2005 French Open);
44. Lapid Demands Apology for Philippine Ambassador's Nazi Remarks, HAARETZ, June 4, 2005, available at http://www.haaretz. com/hasen/objects/pages/ PrintArticleEn.jhtml?itemNo=584243 (reporting former Israeli Justice Minister Joseph Lapid's call for a public apology from the Philippine ambassador to Israel after he compared Israel's immigration police to the Nazis);
45. Morgan Lee, Mexican Official Issues Apology, BOSTON GLOBE, May 18, 2005, at A13 (reporting Mexican government officials public apology following President Vicente Fox's statement that Mexican immigrants take jobs "not even" African Americans want);
46. North Korea Demands U.S. Apology, CNN.COM, June 2, 2005, http://www.cnn.com/2005/US/06/02/northkorea.cheney (reporting North Korea's demand for an apology after Vice President Dick Cheney referred to North Korean leader Kim Jong Il as "one of the world's most irresponsible leaders").
47. See AARON LAZARE, ON APOLOGY 4-5, 7-15, 39 (2004) (discussing the growing importance of public and private apologies in American culture).
48. See TAVUCHIS, supra note 1, at 70-71. Private apologies are interpersonal apologies between individuals; the kind of apologies with which most of us are most familiar. These apologies include run-of-the-mill apologies for things like being late and more consequential apologies such as being sorry for harsh words that damaged a personal relationship. We know of the power, difficulty, and healing potential of such apologies from our own lived experience. Most of us have fought with a loved one over who owes whom an apology. We have felt the reparative effects of a sincere apology either given or received, and the sting of another's refusal to offer an apology that we felt we deserved. And we have refused to give apologies demanded, either because we felt we had done nothing wrong or because we were reluctant to admit our fault. While we may intuitively understand that apologies are called for when we hurt or inconvenience another, we also know firsthand that apologies can be painful to deliver, regardless of how wonderful they are to receive.
49. See infra Part IV.A.
50. LAZARE, supra note 22, at 1-21, 251.
51. Id. at 4-5, 51, 254.
52. See Avis Thomas-Lester, A Senate Apology for History on Lynching, WASH. POST, June 14, 2005, at A12 (reporting that by apologizing "the senators in essence admitted that their predecessors' failure to act [to pass an anti-lynching law] had helped perpetuate a horror that took the lives of more than 4,700 people from 1882 to 1968, most of them black men," but noting that the apology resolution was signed by only eighty of the one hundred Senators, and that "[m]issing from that list were senators from the state that reported the most lynching incidents: Mississippi Republicans Trent Lott and Thad Cochran").
53. Roy L. Brooks, The Age of Apology, in WHEN SORRY ISN'T ENOUGH: THE CONTROVERSY OVER APOLOGIES AND REPARATIONS FOR HUMAN INJUSTICE 3 (Roy L. Brooks ed., 1999).
54. See Jayne W. Barnard, Reintegrative Shaming in Corporate Sentencing, 72 S. CAL. L. REV. 959 (1999);
55. Stephanos Bibas & Richard A. Bierschbach, Integrating Remorse and Apology into Criminal Procedure, 114 YALE L.J. 85 (2004);
56. Stephen P. Garvey, Can Shaming Punishments Educate?, 65 U. CHI L. REV. 733 (1998);
57. Dan M. Kahan & Eric A. Posner, Shaming White-Collar Criminals: A Proposal for Reform of the Federal Sentencing Guidelines, 42 J.L. & ECON. 365 (1999);
58. Dan M. Kahan, What Do Alternative Sanctions Mean?, 63 U. CHI. L. REV. 591 (1996);
59. Toni M. Massaro, Shame, Culture, and American Criminal Law, 89 MICH. L. REV. 1880 (1991);
60. David A. Skeel, Jr., Shaming in Corporate Law, 149 U. PA. L. REV. 1811 (2001);
61. James Q. Whitman, What Is Wrong with Inflicting Shame Sanctions?, 107 YALE L.J. 1055 (1997).
62. See Kahan & Posner, supra note 29, at 367-68; Kahan, supra note 29, at 593; Skeel, supra note 29, at 1814-17.
63. See, e.g., Bibas & Bierschbach, supra note 29.
64. See id. at 130-34 (noting that victim-offender mediation programs "seem to leave both victims and offenders more satisfied and better off").
65. See generally Elizabeth Latif, Note, Apologetic Justice: Evaluating Apologies Tailored Toward Legal Solutions, 81 B.U. L. REV. 289, 296-98 (2001) (describing several such reports including one about an Ohio judge who ordered three men to publicly apologize for disorderly conduct during Oktoberfest celebrations and a Texas judge who ordered a teenager to apologize to students for vandalizing their schools).
66. See, e.g., id.
67. See Daniel W. Shuman, The Role of Apology in Tort Law, 83 JUDICATURE 180, 187 (2000).
68. See, e.g., Haya El Nasser, Paying for Crime with Shame: Judges Say "Scarlet Letter" Angle Works, USA TODAY, June 25, 1996, at A1;
69. see also Thomas M. Antkowiak, Note, Truth as Right and Remedy in International Human Rights Experience, 23 MICH. J. INT'L L. 977, 1009-12 (2002) (noting several instances of judge-ordered apology in the context of a discussion of the benefits of systematically incorporating restorative principles in the U.S. criminal justice system).
70. See Kahan & Posner, supra note 29, at 367 (citing Richard Phillips, Shame as a Deterrent, CHI. TRIB., July 27, 1988, at C20).
71. See KITV News, The Hawaii Channel (ABC television broadcast May 16, 2005).
72. Alan J. Keays, Court: Man Must Work on Empathy Issues, RUTLAND HERALD, May 17, 2005, at B1.
73. See Bibas & Bierschbach, supra note 29, at 93 n.19 (citing U.S. SENTENCING GUIDELINES MANUAL § 3E1.1, cmt. n.3 (2003) (authorizing judges to consider defendants' acceptance of responsibility when determining sentences); see also United States v. Fagan, 162 F.3d 1280, 1284 (10th Cir. 1998) ("The commentary to Section 3E1.1 of the Sentencing Guidelines also indicates the Commission intended remorse to be a component of acceptance of responsibility."); United States v. Hammick, 36 F.3d 594, 600 (7th Cir. 1994).
74. See Lee Taft, Apology Subverted: The Commodification of Apology, 109 YALE L.J. 1135 (2000) (discussing the benefits of apology in the context of civil mediation);
75. Deborah L. Levi, Note, The Role of Apology in Mediation, 72 N.Y.U. L. REV. 1165 (1997) (arguing for an increased role for apology in dispute resolution).
76. See, e.g., Shuman, supra note 35, at 180.
77. See Levi, supra note 41, at 1167.
78. See Shuman, supra note 35, at 188.
79. See Taft, supra note 41, at 1138 (arguing that the "strategic" use of apology to facilitate dispute resolution may undermine the moral quality of apology).
80. See Jonathan R. Cohen, Legislating Apology: The Pros and Cons, 70 U. CIN. L. REV. 819, 820 (2002) (noting that as of 2002 eight states were considering bills that would exclude from admissibility apologetic expressions of sympathy); Shuman, supra note 35, at 188 (discussing Massachusetts evidence rules rendering inadmissible evidence related to "benevolent gestures" to show liability in a civil action).
81. See Jennifer K. Robbennolt, Apologies and Legal Settlement: An Empirical Examination, 102 MICH. L. REV. 460, 463 (2003);
82. Aviva Orenstein, Apology Excepted: Incorporating a Feminist Analysis into Evidence Policy Where You Would Least Expect It, 28 SW. U. L. REV. 221 (1999).
83. See, e.g., Levi, supra note 41, at 1171.
84. See Shuman, supra note 35, at 185 (citing Nathalie Des Rosiers et al., Legal Compensation for Sexual Violence: Therapeutic Consequences and Consequences for the Judicial System, 4 PSYCHOL. PUB. POL'Y & L. 433 (1998)).
85. See id.
86. See Robbennolt et al., supra note 2, at 1147 (noting that juries, if allowed, might prefer to order apologies in addition to or in lieu of damages in some civil cases); Sharon Elizabeth Rush, The Heart of Equal Protection: Education and Race, 23 N.Y.U. REV. L. & SOC. CHANGE 1, 50-57 (1997) (stating that court-ordered apologies should be but are not available as an equitable remedy in civil cases); Wagatsuma & Rosett, supra note 2, at 487 (suggesting that the civil legal system would be improved if apology were better incorporated).
87. See, e.g., LAZARE, supra note 22, at 44 (listing psychological needs that successful apologies satisfy); see also TAVUCHIS, supra note 1, at 13; Robbennolt et al., supra note 2, at 1140-41 (noting that civil punishment is a means of restoring the value of equality); Wagatsuma & Rosett, supra note 2, at 473, 492.
88. Haley, supra note 2, at 503 (discussing the socially transformative effect of apologies related to pollution and drug-related injury cases in Japan in the 1970s).
89. See TAVUCHIS, supra note 1, at 3; Robbennolt, supra note 47, at 463 & n.12; see also Des Rosiers et al., supra note 49; Amy B. Witman et al., How Do Patients Want Physicians to Handle Mistakes? A Survey of Internal Medicine Patients in an Academic Setting, 156 ARCHIVES OF INTERNAL MED. 2565 (1996).
90. See Witman et al., supra note 54, at 2566.
91. See Charles Vincent et al., Why Do People Sue Doctors? A Study of Patients and Relatives Taking Legal Action, 343 LANCET 1609, 1612 (1994), cited in Robbennolt, supra note 47, at 463 n.12.
92. See Des Rosiers et al., supra note 49, at 443-44.
93. Shuman, supra note 35, at 185; see also Katharine K. Baker, Sex, Rape, and Shame, 79 B.U. L. REV. 663, 695 (1999) (citing Andrea Parrot, Recommendations for College Policies and Procedures to Deal with Acquaintance Rape, in ACQUAINTANCE RAPE: THE HIDDEN CRIME 368 (Andrea Parrot & Laurie Bechhofer eds., 1991)) (explaining that most victims of acquaintance rape would prefer that their assailants know that what they did was wrong rather than be arrested).
94. See Mark S. Umbreit, VICTIM MEETS OFFENDER: THE IMPACT OF RESTORATIVE JUSTICE AND MEDIATION 22 (1994), cited in Bolstad, supra note 2, at 548-49.
95. See Shuman, supra note 35, at 183 (noting that a civil rights action over the Ohio National Guard's killing of students at Kent State University during a protest of the Vietnam War did not settle until an apology was negotiated).
96. Interview with Michael Dasrath, in New York, N.Y. (June 23, 2005) (on file with author). The airline pilot took this action after a white female passenger told the pilot that the "brown men are behaving suspiciously." Press Release, ACLU, ACLU Sues Four Major Airlines Over Discrimination Against Passengers (June 4, 2002), available at http://www. aclu.org/racialjustice/racialprofiling/15867prs20020604.html. Though Mr. Dasrath had been repeatedly searched and cleared to fly, and though his wife actually worked for Continental Airlines, the pilot had him removed from the plane and asked that he be arrested. Instead, Mr. Dasrath was placed on the next flight, without being required to undergo any additional security checks whatsoever, and his luggage was allowed to remain on the original airplane. Since Mr. Dasrath's lawsuit is against Continental Airlines and not the government, this Article does not propose that he should be able to pursue a court-ordered apology. Rather, Mr. Dasrath's story is used to illustrate the motivations and desires of a typical civil rights plaintiff.
97. Interview with Michael Dasrath, supra note 61.
98. Id. While anecdotal, Mr. Dasrath's story illustrates in concrete terms what psychological literature already tells us about the importance of apology to many individuals who have been injured.
99. See, e.g., TAVUCHIS, supra note 1, at 92; see also Marquez, supra note 1 (reporting a rare apology from the Los Angeles County Sheriffs Department for damage caused to several Compton homes when sheriffs fired 120 rounds at an unarmed driver).
100. TAVUCHIS, supra note 1, at 93.
101. See, e.g., 42 U.S.C. § 1983 (2000) (providing for the liability of a party depriving constitutional rights of another in an "action at law, suit in equity, or other proper proceeding for redress").
102. See Robbennolt et al., supra note 2, at 1147 n.114 ("Civil jurors . . . do not typically have the ability to compel an apology from the defendant to the plaintiff."); Robert A. Creo, Mediation 2004: The Art and the Artist, 108 PENN ST. L. REV. 1017, 1037 (2004) ("Civil courts do not order apolog[ies] . . . .").
103. Wagatsuma & Rosett, supra note 2, at 487.
104. Id.
105. John Braithwaite, A Future Where Punishment Is Marginalized: Realistic or Utopian?, 46 UCLA L. REV. 1727, 1744 (1999).
106. See Bolstad, supra note 2, at 545 ("The conspicuous absence of apology . . . in American legal mechanisms[] constitutes a surprising failure given the importance of both apology and forgiveness in Judeo-Christian culture.").
107. See, e.g., Antkowiak, supra note 36, at 1011 ("The enduring American emphasis on monetary damages is a completely inadequate method of providing a true satisfaction to victims."). As Mr. Dasrath put it, "Money doesn't matter to me. It's not about money. I'd rather have an apology than money. I want them to know it was wrong." Interview with Michael Dasrath, supra note 61; see also Jeffrey Berryman, Reconceptualizing Aggravated Damages: Recognizing the Dignitary Interest and Referential Loss, 41 SAN DIEGO L. REV. 1521, 1549-50 (2004) (concluding that the ideal of "complete compensation" includes dignitary damages and noting that apologies may assume a greater role in achieving complete compensation); Taft, supra note 41, at 1136-37 (discussing a widow's anger at not having received an apology after her husband died due to medical malpractice).
108. LAZARE, supra note 22, at 44.
109. See id.
110. See id. at 45.
111. See Interview with Michael Dasrath, supra note 61.
112. Id. The emotions expressed by Mr. Dasrath are similar to those expressed by a British pilot of Arab origin who was imprisoned for five months in London due to the FBI's false allegation that he helped plan 9/11. After being released for lack of evidence, the pilot protested, "'My family doesn't deserve to be labeled as terrorists and I didn't deserve five months in prison.'" LAZARE, supra note 22, at 51. He sought an apology from the United States Department of Justice, which, not surprisingly, it refused to provide. "The man wanted his dignity restored and was willing to accept an apology as the mode of that restoration. However, when the government refused to apologize, he was forced to seek a different remedy." Id.
113. See id. at 58.
114. See id. at 45-53 (discussing restoration of self-respect and dignity as one way in which apologies heal damaged relationships).
115. See id. at 52.
116. Victims can sometimes heighten their superiority over the offender by accepting the apology. Consider, for example, First Lady Laura Bush's gracious acceptance of Teresa Heinz Kerry's apology for incorrectly stating that the First Lady had never held a "real job." Mrs. Bush replied, "She didn't have to apologize. I know how tough it is. And actually I know those trick questions." See Laura Bush Brushes Aside Heinz Kerry's Remarks, CNN.COM, Oct. 21, 2004, http://www.cnn.com/2004/ALLPOLITICS/10/21/laura.teresa. The effect of this apologetic exchange was to confirm Mrs. Bush's status as a very likeable First Lady. It also called into question Heinz Kerry's acceptability to replace her.
117. See LAZARE, supra note 22, at 38-42 (comparing public and private apologies noting that public apologies are those between individuals in the presence of a broader audience).
118. Id. at 52; see also Des Rosiers et al., supra note 49, at 444 (explaining that in the sexual violence context, "the [litigation] process often has symbolic meaning for the survivor, who may seek to reclaim, in a protected environment, the power that she lost to the aggressor"). The ability of an apology to facilitate the healing process has been explained by equity theorists. See, e.g., Elaine Walster et al., New Directions In Equity Research, 25 J. PERSONALITY & SOC. PSYCHOL. 151, 156, 163 (1973). Equity theory posits that whenever individuals find themselves in unequal relationships, they become emotionally distressed. But the symbolic exchange of humiliation and power can rebalance the relationship and restore equity. The restoration of equity in turn helps eliminate the psychological distress. See id. at 156, 163.
119. See LAZARE, supra note 22, at 58. For example, Mr. Dasrath stated, "People think I should just take it. Their attorney asked me in the deposition, don't you think you should accept that stuff like this is going to happen given the need to be cautious about terrorism?" Interview with Michael Dasrath, supra note 61. While Mr. Dasrath feels strongly that "it's not right," my interpretation is that he needs to hear confirmation that he doesn't have to endure such mistreatment and that he isn't being selfish by complaining about bearing the brunt of the "war on terror."
120. See LAZARE, supra note 22, at 58-59 (discussing the value to two sisters of an apology from the Vermont Social and Rehabilitation Department for "failing to protect them from being repeatedly raped by their stepfather," and noting one sister's statement that the apology was about "getting over the feeling that I was the bad girl").
121. Shuman, supra note 35, at 183.
122. See LAZARE, supra note 22, at 60 (noting that apologies "restore a sense of control over physical and psychological safety to the offended parties").
123. See, e.g., Walster et al., supra note 83, at 162.
124. Id.
125. See id. at 104. As Mr. Dasrath explained, "I realize that they feel it's justified. They just don't get it. And if they don't get it, they're gonna keep doing it." Interview with Michael Dasrath, supra note 61.
126. See, e.g., LAZARE, supra note 22, at 60. But cf. ELAINE PINDERHUGHES, UNDERSTANDING RACE, ETHNICITY, AND POWER: THE KEY TO EFFICACY IN CLINICAL PRACTICE (1989) (suggesting that long-term cultural mistreatment can lead to the perpetuation of feelings of defensiveness even when the risk is diminished or removed).
127. See Gima, ACLU Files Suit, supra note 6 (reporting the director of the Hawaii Christian Coalition's opinion that the parade was about having role models for children and that he did not "believe the gay lifestyle fits that description").
128. See LAZARE, supra note 22, at 67 (citing Martha Minow, Truth Commissions, in BETWEEN VENGEANCE AND FORGIVENESS 68 (1998) (quoting a commissioner of the United Nations Truth Commission for El Salvador stating that for victims, "the mere act of telling what had happened was a healing emotional release, and that they were more interested in recounting their story and being heard than in retribution")); see also Robbennolt et al., supra note 2, at 1141 (explaining that tort plaintiffs care as much about "a chance to 'tell their story,' as about the actual monetary outcomes at stake").
129. TAVUCHIS, supra note 1, at 57.
130. LAZARE, supra note 22, at 68.
131. Id. (noting "the many ways in which the victims' participation in the [apologetic] dialogue . . . has a healing or therapeutic impact" and how the opportunity for the victim to tell his story "results in a kind of catharsis").
132. See, e.g., id.
133. Id.
134. See Robbennolt et al., supra note 2, at 1139 (arguing that one of the benefits of an apology is that "the victim may experience some retributive justice in seeing the offender suffer through stating the offense").
135. See, e.g., Robbennolt et al., supra note 2, at 1131 ("Another class of goals that may influence legal decisions is related to the expressive functions such decisions can serve. The law functions expressively to the extent that its role is more symbolic than instrumental, as it focuses on 'making statements' as opposed to controlling behavior directly.").
136. Kahan & Posner, supra note 29, at 380 (defining "expressive utility" as the power of a punishment to "convey desired social meanings").
137. See, e.g., Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 310 (1986) (holding that "damages based on the abstract 'value' or 'importance' of constitutional rights are not a permissible element of compensatory damages in [§ 1983] cases," and thus, regardless of the importance of the right at issue, courts cannot award more than nominal damages when there has been no actual injury); see also California Protesters Win Pepper Spray Lawsuit, FREE REPUBLIC, Apr. 29, 2005, http://www.freerepublic.com/focus/f-news/1393865/posts (reporting that a jury awarded eight plaintiffs $1 each when "[l]aw enforcement officers from two northern California counties were found liable Thursday for using excessive force by swabbing pepper spray in the eyes of logging protesters in 1997").
138. See Stachura, 477 U.S. at 310; see also Farrar v. Hobby, 113 S.Ct. 566, 573 (1992) ("[T]he basic purpose of a § 1983 damages award should be to compensate persons for injuries caused by the deprivation of constitutional rights. For this reason, no compensatory damages may be awarded in a § 1983 suit absent proof of actual injury." (citations omitted)); ERWIN CHEMERINSKY, FEDERAL JURISDICTION § 8.11, at 516 (2d ed. 1991) (concluding that "it seems clearly established [from cases such as Stachura] that recovery of damages under § 1983 is limited to compensation for actual injuries suffered"); Mark Morrell, Who Wants Nominal Damages Anyway?: The Impact of an Automatic Entitlement to Nominal Damages Under § 1983, 13 REGENT U. L. REV. 225, 228 (2001).
139. Janet Holmes, Sex Differences and Apologies: One Aspect of Communicative Competence, 10 APPLIED LINGUISTICS 194, 210 (1989)
140. (quoting Nessa Wolfson, The Bulge: A Theory of Speech Behaviour and Social Distance, in SECOND LANGUAGE DISCOURSE: A TEXTBOOK OF RESEARCH (Jonathan Fine ed., 1988)).
141. Robbennolt et al., supra note 2, at 1147.
142. Bibas & Bierschbach, supra note 29, at 113.
143. Kahan & Posner, supra note 29, at 365.
144. See, e.g., City of Newport v. Fact Concerts, 453 U.S. 247, 271 (1981) (holding that municipalities enjoy absolute immunity from liability for punitive damages under 42 U.S.C. § 1983).
145. Wagatsuma & Rosett, supra note 2, at 488.
146. See Shuman, supra note 35, at 180 (noting that tort plaintiffs often claim that an apology "was the most valuable part of the settlement"); Bolstad, supra note 2, at 551 (relating the story of a Dalkon Shield plaintiff who explained that for the company to "apologize to me . . . would be worth millions").
147. See Shuman, supra note 35, at 180-85.
148. See, e.g., Andrea Gerlin, A Matter of Degree: How a Jury Decided That a Coffee Spill Is Worth $2.9 Million, WALL ST. J., Sept. 1, 1994, at A1.
149. See id.
150. See id. (reporting an expert's statement at trial that McDonald's sells 1 billion cups of coffee per year).
151. Susan Bandes, Not Enough Blame to Go Around: Reflections on Requiring Purposeful Government Conduct, 68 BROOK. L. REV. 1195, 1211 (2003).
152. See id. at 1210 (quoting Olmstead v. United States, 277 U.S. 438, 485 (1928) (Brandeis, J., dissenting)).
153. Id. (quoting Owen v. City of Independence, 445 U.S. 622, 651 (1980)).
154. In The Age of Apology, Roy Brooks lists a number of human injustices that are deserving of apology: [T]he violation or suppression of human rights or fundamental freedoms recognized by international law, including but not limited to genocide; slavery; extrajudicial killings; torture and other cruel or degrading treatment; arbitrary detention; rape; the denial of due process of law; forced refugee movements; the deprivation of a means of subsistence; the denial of universal suffrage; and discrimination, distinction, exclusion, or preference based on race, sex, descent, religion, or other identifying factor with the purpose or effect of impairing the recognition, enjoyment, or exercise, on an equal footing, of human rights and fundamental freedoms in the political, social, economic, cultural, or any other field of public life. In sum, a human injustice is simply the violation or suppression of human rights or fundamental freedoms recognized by international law. Brooks, supra note 28, at 7. This list encompasses a wide range of acts that would also violate rights and freedoms recognized by state and federal laws in the United States.
155. See TAVUCHIS, supra note 1, at 13.
156. See LAZARE, supra note 22, at 181 ("The last group of apologies includes those motivated by a new understanding or a new application of an ethical ideal, who perhaps see for the first time that their actions violate an important moral value."); see also TAVUCHIS, supra note 1, at 13 ("As symbolic barometers, apologies register tensions and displacements in personal and public belief systems, that is, the contraction and expansion of interdictory motifs - what calls for an apology and what does not - that either precede or follow changes in social behavior and cultural expectations.").
157. TAVUCHIS, supra note 1, at 13. Elizabeth Rush argues that an apology for slavery would serve a similar function, by confirming the accepted societal consensus that slavery was immoral and a blight on our country's history, as well as reinforcing the notion, still contested by some, that because the effects of slavery continue today, the government should act to redress continuing inequality. Rush, supra note 51, at 51-52.
158. LAZARE, supra note 22, at 55.
159. Haley, supra note 2, at 503.
160. Id. at 503-04.
161. Id. at 503. Comparing our legal system with others provides "examples of different ways of dealing with common social problems." Hilary K. Josephs, The Remedy of Apology in Comparative and International Law: Self-Healing and Reconciliation, 18 EMORY INT'L L. REV. 53, 54 (2004)
162. (citing JOHN HENRY MERRYMAN ET AL., THE CIVIL LAW TRADITION: EUROPE, LATIN AMERICA, AND EAST ASIA 1 (1994)). Due to its cultural traditions, Japan is a particularly helpful reference because its legal system frequently comes up with different answers than the U.S. legal system does. On the other hand, "Japan is one of few prosperous democracies in Asia with a legal system that functions on a high level of professionalism and incorruptibility. Second, Japan's legal system is perhaps the only one in Asia that legal scholars classify as truly 'Western,' squarely within one of its recognized lineages." Id. at 56.
163. See supra Part I.
164. See materials prepared for litigation (on file with author).
165. Id.
166. Id.
167. Id.
168. For example, in 1999, the ACLU of Hawaii challenged an ordinance banning street performers from Kalakaua Avenue, the main pedestrian thoroughfare in Waikiki. The ACLU sought declaratory and injunctive relief. The court eventually issued a decision granting both. The media, however, reported only that street performers could continue to perform in Waikiki, with no explanation of the court's decision or the First Amendment rights at stake. See David Waite, Waikiki Performers' Show Will Go On, HONOLULU ADVERTISER, Dec. 29, 2001, at A1. On the other hand, if the City had been ordered to apologize for violating the speech rights of street performers, the press would very likely have reported the apology. Such an apology would have had much greater expressive value than a declaratory judgment read by only a few interested individuals.
169. See generally Stanley Ingber, Rethinking Intangible Injuries: A Focus on Remedy, 73 CAL. L. REV. 772, 835 (1985) ("Even declaratory judgments . . . are inadequate [in the defamation context]. Often they cannot restore the injured party's reputation in the community because they are insufficiently publicized, especially in comparison with the defamatory statement.").
170. See TAVUCHIS, supra note 1, at 64.
171. See id.; see also Bibas & Bierschbach, supra note 29, at 143 ("The very act of apologizing teaches, which explains why parents make their children apologize (grudgingly) for hitting a sibling or taking a toy. In other words, the ordeal of expressing remorse and apologizing, even if done initially for the wrong reasons, may in time promote genuine repentance.").
172. Garvey, supra note 29, at 792-93 (citations omitted).
173. TAVUCHIS, supra note 1, at 50-51.
174. TAVUCHIS, supra note 1, at 65.
175. Bibas & Bierschbach, supra note 29, at 143.
176. See, e.g., Greg Bonnell, Eastern Ontario Cops Release Study Disputing Allegations of Racial Profiling, CANADIAN PRESS, June 7, 2005 (reporting an Ontario Police Association spokesperson's statement that calls for an apology for racial profiling were "unfounded and premature").
177. See Robbennolt et al., supra note 2, at 1144-47; id. at 1147 ("[I]f civil decision makers were allowed to compel an apology as part of their verdict, they might choose to do so as a better way by which to restore equity.").
178. Mr. Dasrath explained that part of the reason he wants an apology is to send a message that it's unacceptable to treat people of color the way he was treated: I want to help other people like me, Indians, so it doesn't happen to them. People shouldn't have to worry that they are going to get treated like that. I've seen it happen to other people. It makes you anxious every time you fly. When they're searching us, they're actually looking for something, not like with a white person. It just feels different. Interview with Michael Dasrath, supra note 61.
179. For an example of both the public instability caused by offenses that diminish groups and the power of an apology to restore social equilibrium, consider a reported incident involving former Supreme Court nominee Harriet Miers. See Jo Becker, The Right Result was Key to Miers, WASH. POST, Oct. 8, 2005, at A1. When Miers was a member of the Dallas City Council, the city was on edge after a series of police shootings that killed innocent African American men. In the wake of the shootings, an African American county commissioner was arrested after an altercation with a white off-duty police officer who called him a racist name. More than 1,000 demonstrators marched on City Hall and many feared violence. Harriet Miers grabbed a microphone and said, "If it means anything to you, I want to apologize. . . . I want to apologize to die African American community of this city for an unprovoked and unexcusable [sic] attack on one of their elected leaders." Id. Reportedly, her apology met with applause from the crowd and played a key role in defusing the tension. See id.
180. But see, e.g., Marquez, supra note 1. Publicized exceptions include police officers apologizing in Boston for killing a twenty-one-year-old woman with rubber bullets while trying to subdue a rowdy fan after the Red Sox won the World Series, in Philadelphia for arresting and handcuffing a ten-year-old girl who came to school with scissors in her backpack, and in Los Angeles for indiscriminately firing 120 bullets at an unarmed suspect, damaging the homes and risking the lives of members of the predominately African American community. See id.
181. See id. (noting that the apology by the Los Angeles County Sheriffs Department "was not expected to prompt severe repercussions in any potential lawsuits because it was carefully worded as an expression of sympathy, not an admission of guilt").
182. Bolstad, supra note 2, at 563.
183. See supra notes 79-83 and accompanying text.
184. See Garvey, supra note 29, at 751 ("[P]ublicity and its potentially attendant shame can deter wrongdoing in three ways. First, they impose . . . some limitation on the offender's freedom. . . . Second, and more importantly, they produce (if they work) an unpleasant emotional experience for the offender, which potential offenders will want to avoid and actual offenders will want to avoid repeating. Third, depending on the nature of his communal attachments, he may suffer adverse consequences from members of the community, who may gossip about him or refuse to engage in various forms of social and economic intercourse with him." (citations omitted)); Kahan & Posner, supra note 29, at 377 ("Shaming penalties and other sorts of sanctions can, in theory, be used to change beliefs as well as behavior . . . ."); Sharon Lamb, The Psychology of Condemnation: Underlying Emotions and Their Symbolic Expression in Condemning and Shaming, 68 BROOK. L. REV. 929, 955 (2003) ("[W]e hope [the act of apologizing] will influence [criminals]. . . ."); Latif, supra note 33, at 313 ("[A]n ordered apology can deter future transgressions."). But see Massaro, supra note 29, at 1933-34 ("At best, [shaming sanctions] are likely to prove futile, even silly, responses to crime. At worst, they may become highly destructive, state-imposed assaults on human personality.").
185. See, e.g., Kahan & Posner, supra note 29, at 377 (stating that the authors have used the cognitive dissonance theory of Leon Festinger, see LEON FESTINGER, A THEORY OF COGNITIVE DISSONANCE (1957), in an "impressionistic way").
186. See, e.g., Eddie Harmon-Jones & Judson Mills, An Introduction to Cognitive Dissonance Theory and an Overview of Current Perspectives on the Theory, in COGNITIVE DISSONANCE: PROGRESS ON A PIVOTAL THEORY IN SOCIAL PSYCHOLOGY 3-21 (Eddie Harmon-Jones & Judson Mills eds., 1999).
187. See id.
188. See id.
189. BULLY (Lions Gate Releasing 2001). For a literary portrayal of the Bobby Kent story, see JIM SCHUTZE, BULLY: A TRUE STORY OF HIGH SCHOOL REVENGE (1997).
190. Id.
191. Id.
192. See id.
193. See Harmon-Jones & Mills, supra note 148, at 4-5; Leon Festinger & James M. Carlsmith, Cognitive Consequences of Forced Compliance, 58 J. ABNORMAL & SOC. PSYCHOL. 203 (1959) (discussing the effects on a person's private opinion of being forced to do or say something contrary to that opinion).
194. See, e.g., Festinger & Carlsmith, supra note 155, at 203. This process is known by cognitive psychologists as the induced-compliance paradigm. See Harmon-Jones & Mills, supra note 148, at 8-10.
195. See, e.g., Latif, supra note 33, at 314.
196. See Baker, supra note 58, at 704 (discussing the efficacy of forced apologies in the context of date rape).
197. Id.
198. See Antkowiak, supra note 36, at 1012 (discussing a Texas federal court's decision to force wife batterers to apologize to their spouses in front of women's groups); Latif, supra note 33, at 312 (discussing a Kentucky judge who forced white defendants to apologize for arson of a church founded by freed slaves to the church's congregation); Shuman, supra note 35, at 187 (discussing an Illinois judge who forced drunk drivers to publish apologies in local newspapers).
199. See Bibas & Bierschbach, supra note 29, at 143; Garvey, supra note 29; Lamb, supra note 144, at 955; Kahan & Posner, supra note 29, at 377; Latif, supra note 33, at 314; Shuman, supra note 35, at 187.
200. See Harmon-Jones & Mills, supra note 148, at 8-10. See generally JEAN-LEON BEAUVOIS & ROBERT-VINCENT JOULE, A RADICAL DISSONANCE THEORY 73-97 (1996) (examining behavioral ramifications of forced compliance).
201. See, e.g., Massaro, supra note 29, at 1920-21 (highlighting the dangers of requiring judges to predict offenders' susceptibility to shame and likely post-shaming behavior).
202. See generally Harmon-Jones & Mills, supra note 148, at 28-40 (discussing cognitions and their role in the context of dissonance theory).
203. See Baker, supra note 58, at 704.
204. See, e.g., BEAUVOIS & JOULE, supra note 162, at 58-60.
205. See Carol Gilligan & Jane Attanuci, Two Moral Orientations: Gender Differences and Similarities, 34 MERRILL-PALMER Q. 223 (1988);
206. see also CAROL GILUGAN, IN A DIFFERENT VOICE: PSYCHOLOGICAL THEORY AND WOMEN'S DEVELOPMENT 27 (1993).
207. See Lester A. Lefton, Child Development, in PSYCHOLOGY 349-50 (2000) (discussing Kohlberg's three-tiered model of moral development); see also GILLIGAN, supra note 167, at 27.
208. See Lefton, supra note 168, at 348-50.
209. See id.
210. See Barnard, supra note 29, at 965 (advocating a woodshedding process, wherein "a wrongdoer admits his misconduct, recognizes its social significance, pledges corrective action, and is welcomed back . . . into the community of law-abiding citizens, in the context of corporate crime").
211. See id. at 973-74.
212. See id.
213. Id. at 974 (quoting JOHN BRAITHWAITE, CRIME, SHAME AND REINTEGRATION 9 (1989)).
214. id.
215. When asked how he would feel about such a proceeding, Mr. Dasrath replied: I'd really like that. I'd like to tell them how it felt. But I also want to hear from them. Ask them what they were thinking. Would they have done this if I were white? Do they think everyone who is white is in the Klan? I'd like them to understand that what they did was wrong. 'Cause I don't think they get it. Interview with Michael Dasrath, supra note 61. Cf. LAZARE, supra note 22, at 69 (suggesting that victim impact statements made in the presence of criminal offenders help victims heal by giving voice to their pain).
216. See Barnard, supra note 29, at 974.
217. Cf. id., supra note 29, at 966-72 (observing that in the reputation-conscious corporate world, shaming penalties could be useful
218. See BRENT FISSE & JOHN BRAITHWAITE, THE IMPACT OF PUBLICITY ON CORPORATE OFFENDERS 233 (1983) (noting the behavior-influencing "sting" of negative publicity for corporations through "loss of corporate prestige, loss of prestige in the community for top management, trauma for executives in facing cross-examination about the scandal, distraction of top management from normal duties, and decline in employee morale").
219. Barnard, supra note 29, at 1006.
220. See generally Bandes, supra note 115, at 1209 ("There is far too little nuanced information on the ways in which governmental entities make decisions, and the sorts of incentives, legal or otherwise, that would best promote accountability.").
221. Compare Richard Borreca, Reported Abuse of Teens Prompts Probe of Lockup, HONOLULU STAR-BULL., Aug. 27, 2003, at A1 (reporting Hawaii Governor Linda Lingle's replacement of top management at the Hawaii Youth Correctional Facility),
222. and Rod Ohlra, Youth Facility Investigated, HONOLULU ADVERTISER, Aug. 27, 2003, at A1 (reporting same),
223. with Lynda Arakawa, Youth Prison Reform Initiated, HONOLULU ADVERTISER, Jan. 7, 2004, at B3 (reporting the formation of the Hawaii Juvenile Justice Project, whose mission was to change conditions at the youth correctional facility and create alternatives to youth incarceration).
224. A Gallup Poll taken after 9/11 found that as many as 60% of Americans supported racial profiling of Arabs at airports. See Kari Lyderson, What Next, Concentration Camps? Racial Profiling in the War on Terrorism, IMPACT PRESS, Feb. 2003, available at http://www.impactpress.com/articles/febmar03/ racialpro2303.html (describing the widespread practice and acceptance of racial profiling despite lawsuits by the ACLU and others).
225. See Bolstad, supra note 2, at 549; Cohen, supra note 46, at 849; Taft, supra note 41, at 1156-58.
226. See, e.g., Massaro, supra note 29, at 1942-43.
227. See, e.g., Robbennolt et al., supra note 2, at 1147 n.114.
228. See infra Part IV.D.
229. See, e.g., Skeel, supra note 29, at 1864.
230. See LAZARE, supra note 22, at 117-19 (acknowledging that while apologies ideally will be sincere, they need not be in order to be effective); see also Bolstad, supra note 2, at 549; Cohen, supra note 46, at 849; Taft, supra note 41, at 1156-58.
231. Taft, supra note 41, at 1157.
232. Id. at 1159. Ironically, despite his central theme that apology has been commodified, this quotation suggests that Taft has no problem with commodifying a client's resentment, which the lawyer should trade for valuable compensation rather than an inauthentic apology.
233. Taft establishes this framework from the beginning of his article, where he observes that "apology is valuable because it offers the offender a vehicle for expressing repentance and the offended an opportunity to forgive." Id. at 1138. Throughout his article, Taft describes apology as an act of repentance. See, e.g., id. at 1139-41, 1144.
234. See LAZARE, supra note 22, at 39-40 (discussing similarities and differences between public and private apologies); see id. at 117-19 (arguing that apologies need not be sincere to be effective); see also TAVUCHIS, supra note 1, at 70-71.
235. See LAZARE, supra note 22, at 229-33.
236. See id. at 37, 117-19.
237. See id. at 35-38 (discussing several anecdotes illustrating the efficacy of brief or nonverbal apologies).
238. See id. at 37, 117-19.
239. See TAVUCHIS, supra note 1, at 71.
240. Id.
241. See LAZARE, supra note 22, at 39-40, 204-06.
242. TAVUCHIS, supra note 1, at 102, 104.
243. id. at 102.
244. Id. at 104.
245. Taft, supra note 41, at 1140 (quoting TAVUCHIS, supra note 1, at 23).
246. TAVUCHIS, supra note 1, at 117. Tavuchis elaborates: [T]he major structural requirement and ultimate task of collective apologetic speech is to put things on the record, to document as a prelude to reconciliation. And what goes on record . . . does not necessarily express sorrow and, except in a pro forma fashion, need not in order to effect reconciliation between collectivities. It is the latter function, then, that is the singular and significant achievement of collective apology. Id. at 109.
247. LAZARE, supra note 22, at 157-58.
248. See, e.g., Wagatsuma & Rosett, supra note 2, at 477, 495.
249. See Bibas & Bierschbach, supra note 29, at 143 ("[V]ictims may find even half-hearted apologies satisfying. . . . This explains why victims negotiate for confessions and apologies as part of settlements or plea bargains, even though the apology is an obvious quid pro quo.").
250. Taft, supra note 41, at 1156, 1159.
251. See Interview with Michael Dasrath, supra note 61.
252. See, e.g., Massaro, supra note 29, at 1942-43 ("When a shame sanction hits home, it is a direct assault on a basic need of all people, the esteem of others.").
253. See id. at 1881-82.
254. Id. at 1920.
255. See id.
256. See infra Part V.B.
257. See, e.g., Robbennolt et al., supra note 2, at 1147 n.114 ("The First Amendment raises potential obstacles to compelled apologies in civil cases."). The First Amendment does not generally present a barrier to compelled apologies in the criminal context, however, because trial courts have broad discretion to impose probation conditions, including conditions that significantly burden First Amendment rights. For a discussion and critique of this deferential standard of review, see Andrew Horwitz, Coercion, Pop-Psychology, and Judicial Moralizing: Some Proposals for Curbing Judicial Abuse of Probation Conditions, 57 WASH. & LEE L. REV. 75, 114 (2000) (noting the dearth of research into the efficacy of shaming sentences and the fact that judges are increasingly imposing them despite expert theories that "shaming is either totally ineffective or counter-productive as a response to criminality");
258. Phaedra Athena O'Hara Kelly, Comment, The Ideology of Shame: An Analysis of First Amendment and Eighth Amendment Challenges to Scarlet-Letter Probation Conditions, 77 N.C. L. REV. 783 (1999) (discussing the constitutionality of scarlet-letter probation conditions on grounds that such conditions compel probationers to speak).
259. See W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943); Wooley v. Maynard, 430 U.S. 705, 714 (1977) ("[T]he right of freedom of thought . . . against state action includes both the right to speak freely and the right to refrain from speaking at all.").
260. See id.
261. See Riley v. Nat'l Fed'n of the Blind of N.C., 487 U.S. 781, 782 (1988) (holding that the First Amendment draws no distinction between compelled statements of opinion and compelled statements of fact, because either form of compulsion burdens protected speech).
262. See Pac. Gas & Elec. v. Pub. Util. Comm'n, 475 U.S. 1, 8 (1986).
263. See generally Nicholas Nesgos, Pacific Gas and Electric Co. v. Public Utilities Commission: The Right to Hear in Corporate Negative and Affirmative Speech, 73 CORNELL L. REV. 1080 (1988) (arguing that the Pacific Gas Court incorrectly expanded negative speech rights to corporations);
264. David W. Ogden, Is There a First Amendment "Right to Remain Silent?": The Supreme Court's "Compelled Speech" Doctrine, 40 FED. B. NEWS & J. 368 (1993) (arguing that negative speech rights should be moored in rights of conscience).
265. This barrier stems from the fact that when compelling an individual to apologize, the court is necessarily concerned with the content of the speech. See United States v. United Foods, 533 U.S. 405, 410-411 (2001); Hurley v. Irish-Amer. Gay Lesbian & Bisexual Group of Boston, 515 U.S. 557, 573 (1995); Riley, 487 U.S. at 795; Pac. Gas & Electric, 475 U.S. at 8-18. As opposed to content-neutral burdens on speech, which need only survive an intermediate level of scrutiny, content-based burdens on speech are subject to strict scrutiny. See Hurley, 515 U.S. at 573; Riley, 487 U.S. at 498. Strict scrutiny requires that the restriction be narrowly tailored to promote a compelling governmental interest - otherwise known as the "least restrictive alternative" analysis - and almost always spells death for the speech limitation at issue. See 16 AM. JUR. 2D Constitutional Law § 460 (2005).
266. See infra Section V.A. Cf. LAZARE, supra note 22, at 38; Shuman, supra note 35, at 185.
267. As a practical matter, the government regularly forces individuals to speak, such as when filling out tax forms or signing up for the draft. See, e.g., Kelly, supra note 216, at 858. The difference, of course, is that filling out tax forms or draft cards merely requires an individual to report objective facts accurately, while a forced apology requires a moral statement. It would seem that the government's interest in requiring an individual to report facts need not be as strong as its interest in requiring an individual to state opinions or beliefs. In other words, the greater the burden on core First Amendment rights, the more compelling the government interest must be. This sliding scale would suggest that in cases in which an apology was the only remedy that could make a severely injured plaintiff whole, a court might be justified in ordering an individual civil defendant to apologize. Additionally, the government interest might not need to be as compelling in ordering corporate defendants to apologize, because corporations lack the capacity for thought. See Choi, supra note 2, at 207. Regardless, this Article leaves such First Amendment questions for another day. Instead, it focuses on the benefits of court-ordered apologies because court-ordered apologies offer the greatest promise as a remedy in civil rights case against state actors. For cases discussing First Amendment concerns with apologies in non-civil rights cases, see Matchett v. Chi. Bar Ass'n, 467 N.E.2d 271, 275 (Ill. App. Ct. May 17, 1984) (dismissing a complaint that sought publication of a response, a retraction, or an apology, holding that the defendant could not be compelled to "publish information it has chosen not to publish"), cert. denied, Matchett v. Chi. Bar Ass'n, 471 U.S. 1054 (1985); Tackett v. KRIV-TV, No. H-93-3699, 1994 WL 591637, at *2-3 (S.D. Tex. May 5, 1994) (granting a Rule 12(b)(6) motion in a defamation action seeking a retraction and apology); Griffith v. Smith, No. LT-460-2, 1993 WL 945995, at *13 (Va. Cir. Ct. Mar 4, 1993) ("First Amendment concerns preclude the Court from ordering the apology originally suggested . . . ."), rev'd on other grounds, Roberts v. Clarke, No. 930781, 1994 WL 16011491 (Va. May 06, 1994). But see Kicklighter v. Evans County Sch. Dist., 968 F. Supp. 712, 719 (S.D. Ga. 1997) ("[T]o require a simple apology for truculent and disruptive in-school behavior falls well within the ambit of an institution's balanced comprehensive authority. If the school board can determine what manner of speech is inappropriate in the classroom, it can also dictate what speech is proper when fulfilling its charge to inculcate the habits and manners of civility . . . ." (citations and quotations omitted)).
268. While the Eleventh Amendment precludes suits against states without their consent, see U.S. CONST, art. XI, it does not bar suits against state officials for injunctive relief. See, e.g., 15 AM. JUR. 2D Civil Rights § 101 (2005) ("An action in federal court under 42 U.S.C.A. § 1983 against a state official in his official capacity, which seeks only declaratory or injunctive relief, is not barred by the Eleventh Amendment as such actions are not treated as actions against the state." (citations omitted)).
269. See 63C AM. JUR. 2D Public Officers and Employees § 477 (2005); Mike Harper, Note, Connick v. Myers and the First Amendment Rights of Public Employees, 16 HASTINGS COMM. & ENT. L.J. 525, 527-29 (1994) (discussing the Court's four-part test, see Connick v. Myers, 461 U.S. 138 (1983), for determining whether a public employer's sanctions of an employee for expression receives First Amendment scrutiny).
270. See, e.g., 63C AM. JUR. 2D Public Officers and Employees § 477 (2005) ("[T]o trigger First Amendment protection, the speech at issue must relate to matters of public interest, and the employee's interest in First Amendment expression must outweigh the employer's interest in efficient operation of the workplace.").
271. TAVUCHIS, supra note 1, at 100.
272. See 63C AM. JUR. 2D Public Officers and Employees § 477 (1997); Harper, supra note 226, at 527-29.
273. see 63C AM. JUR. 2D Public Officers and Employees § 477 (1997).
274. Most federal civil rights cases are brought under 42 U.S.C. § 1983, which authorizes "suits in equity" for "deprivation of any rights, privileges, or immunities secured by the Constitution and laws." 42 U.S.C. § 1983 (2000).
275. See Deborah Tussey, Annotation, Requiring Apology as "Affirmative Action" or Other Form of Redress Under State Civil Rights Act, 85 A.L.R.3D 402 (1978) (collecting cases that discuss whether civil rights violators can or should be required to formally apologize).
276. See Minneapolis v. Richardson, 239 N.W.2d 197, 206 (Minn. 1976) ("A letter of apology is not a proper means to effectuate [the reversal of discriminatory effects].").
277. Id.
278. See Alto-Reste Park Cemetery Ass'n v. Pa. Human Relations Comm'n, 298 A.2d 619, 623 (Pa. Commw. Ct. 1972).
279. Id. at 623; see also State Comm'n for Human Rights v. Lieber, 277 N.Y.S.2d 589, 591 (App. Div. 1967) (holding that requiring a landlord to apologize for housing discrimination would be "a useless, vain and meaningless gesture"), rev'd on other grounds, State Comm'n for Human Rights v. Lieber, 23 N.Y.2d 253 (1968).
280. Imperial Diner v. State Human Rights Appeals Bd., 417 N.E.2d 525, 526 (1980).
281. Id. at 529 n.*. The court declined to consider the dissent's concern that the compelled apology violated the First Amendment. See id.
282. The Eleventh Amendment bars suits against states seeking retroactive monetary relief, but not those against municipalities. See Alabama v. Pugh, 438 U.S. 781, 782 (1978) (per curiam). Moreover, the Eleventh Amendment does not bar suits against state officials for prospective injunctive relief. See, e.g., Ex parte Young, 209 U.S. 123 (1908). See generally CHEMERINSKY, supra note 103, § 7.5.1 (discussing Young). It's an open question whether the Eleventh Amendment bars non-monetary retroactive relief against state officials. However, because the underlying purpose of the Eleventh Amendment is to protect state treasuries, the stronger position would be that it does not. See Edelman v. Jordan, 415 U.S. 651, 678 (1974) (holding that the Eleventh Amendment bars the retroactive payment of benefits found to have been wrongfully withheld); CHEMERINSKY, supra note 103, §§ 7.5.1-2. Nevertheless, because ordering an apology imposes a prospective requirement (as one may not retroactively apologize) there is no need to resolve that issue here. See Ford Motor Co. v. Dep't of Treasury, 323 U.S. 459, 464 (1945) (holding that orders that impose prospective requirements, as opposed to retroactive compensation, are permitted), overruled by Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613 (2002).
283. See Minneapolis v. Richardson, 239 N.W.2d 197, 206 (Minn. 1976); Alto-Reste Park, 298 A.2d at 623.
284. See Imperial Diner, 417 N.E.2d at 526.
285. See supra Part III.A.
286. Courts rightly reject apologies that are meant merely to humiliate offenders, including most apologies currently ordered in the criminal justice system and most forced apologies advanced by shaming advocates.
287. 42 U.S.C. § 1983 (2000).
288. 5 U.S.C. § 702 (providing that an action that states a claim and involves non-monetary damages shall not be dismissed on the ground that it is against the United States or that the United States is an indispensable party); see also CHEMERINSKY, supra note 103, § 8.9, at 494.
289. See, e.g., Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1 (1971).
290. See, e.g., Vazquez v. Carver, 18 F. Supp. 2d 503 (E.D. Pa. 1998).
291. See, e.g., Dixon v. Barry, 967 F. Supp. 535 (D.D.C. 1997).
292. See Massaro, supra note 29, at 1930-33; Skeel, supra note 29, at 1864.
293. Conceivably, however, the prospect of being ordered to apologize publicly following a trial will induce more governments to agree to offer apologies to plaintiffs as part of the settlement process. One advantage of litigation for governmental defendants is never having to say they're sorry - even when they anticipate losing at trial. This dynamic is particularly at play where it would be unpopular or embarrassing for the government to concede the plaintiffs point. Even when the government loses, it saves face by vowing to appeal, regardless of whether it ever does. The prospect of a court-ordered apology at the end of the litigation process might change the government's calculation.
294. See Lazare, supra note 22, at 8. Apologies can be so difficult that a string of recent self-help books offer advice on how to give them. See, e.g., KEN BLANCHARD & MARGARET MCBRIDE, THE ONE MINUTE APOLOGY: A POWERFUL WAY TO MAKE THINGS BETTER (2003);
295. KEITH MICHAEL HEARIT, CRISIS MANAGEMENT BY APOLOGY: CORPORATE RESPONSES TO ALLEGATIONS OF WRONGDOING (2005);
296. SUSAN KENT, LEARNING HOW TO SAY YOU ARE SORRY (2001).
297. See, e.g., LAZARE, supra note 22, at 8.
298. See id. at 85-106 (describing the various self-serving ways in which one can undercut an apology).
299. See Guillermo, supra note 20.
300. Id.
301. See id.
302. Id.
303. Id.
304. Id.
305. Id.
306. Id.
307. Id. When an apology is inadequate for whatever reason - timing, wording, inadequacy compared with the harm suffered - the recipient of the apology often acknowledges the apology without accepting it. In this way, the power remains with the offended party, who can choose when to accept the apology, or not accept it at all. See LAZARE, supra note 22, at 178.
308. See Guillermo, supra note 20.
309. Id.
310. See LAZARE, supra note 22, at 88-90; Erin Ann O'Hara & Douglas Yarn, On Apology and Consilience, 77 WASH. L. REV. 1121, 1133-36 (2002) (describing three key elements to a successful apology).
311. Here, the apology should probably also identify precisely what those comments were.
312. See LAZARE, supra note 22, at 91-97; O'Hara & Yarn, supra note 265, at 1133.
313. Even Guillermo's suggested apology is not quite as clear about who the injured party was as it could be. For example, here he might have suggested, "The comments were racist and hurtful and intimidating to the Asian and Asian American community."
314. See LAZARE, supra note 22, at 85, 90.
315. See O'Hara & Yarn, supra note 265, at 1134.
316. See id.
317. Guillermo, supra note 20.
318. See Wagatsuma & Rosett, supra note 2, at 487 ("An apology without reparation is a hollow form, at least when the injured person has suffered a clear economic loss and when the actor has the capacity to make compensation."); see also LAZARE, supra note 22, at 127; Eric K. Yamamoto, Race Apologies, 1 J. GENDER RACE & JUST. 47, 54 (1997) (discussing apologies and reparations in the context of racial groups' attempts to redress historical wrongs).
319. Guillermo, supra note 20.
320. Id.
321. Id. He further describes the apology as a significant victory for Asian Americans in general: There's victory, sweet victory, in New Jersey! The activists can't gloat. That would be impolitic. So let me go amok for them. We got the apology. Or rather, they did for all of us. After a month of negotiations, a coalition of Asian American and community groups against hate speech received an on-air apology May 25 from Millennium Broadcasting's New Jersey 101.5 FM and its two foul-mouthed DJs who insulted Asian Americans on-air last month.
322. See generally TAVUCHIS, supra note 1, at 105-07 (discussing several public apologies arising from events surrounding World War II that reached many people).
323. Lincoln's apology for slavery during his Second Inaugural Address is an eloquent and powerful testament to the evil of slavery. See Brooks, supra note 28, at 360-61 (reproducing Lincoln's speech).
324. See generally LAZARE, supra note 22, at 40 (contrasting private apologies, where the identification of the apologizer is easy, with public apologies, where it is less so).
325. See, e.g., Bradley Graham, Rumsfeld Takes Responsibility for Abuse, WASH. POST, May 8, 2004, at A1.
326. See, e.g., Fred Kaplan, Why Bush Didn't Apologize, SLATE, May 5, 2004, http://www. slate.com/id/2100015/. While Mr. Dasrath, for example, eventually received a letter expressing regret from Continental customer service, he rejected it because he felt the apology should come from the pilot or at least someone with supervisory authority over the pilot. See Interview with Michael Dasrath, supra note 61.
327. For example, if those at the top ordered or encouraged the abuse, they should apologize. If a supervisor fails in her duty to monitor her subordinates and allows grievous abuse, she has to assume responsibility. On the other hand, if some inadvertent bureaucratic blunder causes the harm, an apology from a government spokesperson could suffice.
328. For instance, a courtroom is a quasi-public setting, and an apology given in court is likely to be heard by only a few people. An apology in a newspaper can be more visible, but not if the apology is buried alongside other public notices where few people are likely to see it. An apology aired on television could be more prominent, but the number of people who view it depends on what time, what station, and how often it's aired. Other possible forums include Web sites, posters on city buses, billboards, and public notices in government offices. Each of these also presents an additional list of variables, including how prominently the apology should be placed on the Web site, how many city buses it should be posted on, how long left up on the billboard, what size public notice, and so forth.
329. See supra text accompanying notes 171-75.
330. Mr. Dasrath noted, "I want them to apologize in public. Maybe issue a press release. Many people know about it because it's been in the news. I want the public to know what happened and that it was wrong." Interview with Michael Dasrath, supra note 61.
331. See TAVUCHIS, supra note 1, at 70-71 ("[A]pologetic discourse between the One and the Many takes place and unfolds in a public domain from beginning to end, no matter how limited the engaged public may be. It's this that invests the exchange with new purpose and significance. For publicity, ventilated speech, does more than direct attention to a plurality of offended parties; it situates the offender in a sociolinguistic territory whose logic and economy require a particular kind of display or, more aptly, performance.").
332. Wagatsuma & Rosett, supra note 2, at 487.
333. Yamamoto, supra note 273, at 54.
334. While restitution may be necessary, the particular type of restitution will vary according to the harm suffered. At times, reparation will be injunctive in nature, as in the case of affirmative action programs for hiring and promoting individuals of races that have suffered discrimination. At others, in cases where the injury is intangible, symbolic reparation can be offered. See LAZARE, supra note 22, at 127. The case of the New Jersey radio station donating money to a charity is one example. See Guillermo, supra note 20.
335. See Bandes, supra note 115, at 1211.