Victims and Prison Release: A Modest Proposal

article published in law reporterThe political right pushes for the strengthening of our criminal justice system by expanding victims' rights at the expense of defendant protections. The political left advocates the gradual replacement of the criminal justice system with restorative justice techniques. At the heart of both sets of proposals is a crime victim alienated by a system that has slowly eliminated her role in criminal prosecution and punishment. This Essay proposes to serve the claimed needs of the crime victim by giving her control over the execution of 10 percent of the convict's prison sentence. Although fraught with potential complications that would need to be addressed, if carefully managed, these victim control rights could serve the interests of victims, convicts, and society by enhancing psychological healing while reducing recidivism rates. At a minimum, however, victims could be made better off without jeopardizing the legitimate interests of either criminal defendants or society. The proposal seems worth at least a carefully constructed experimen

Economics, Behavioral Biology, and Law

This article compares the relevance to law of two unexpectedly similar fields: economics and behavioral biology. It first examines the assumptions, core concepts, methodological tenets, and emphases of the two fields. It then compares the interdisciplinary fields of law and economics, on one hand, with law and behavioral biology, on the other—highlighting not only important similarities but also important differences. The article subsequently explores ways that biological perspectives on human behavior may, among other things, improve economic models and the behavioral insights they generate. The article concludes that although there are important differences between the two fields, the overlaps between economics and biology warrant even greater congress between these two disciplines, and expanded exchange between the legal thinkers interested in each of them

Group-Conflict Resolution: Sources of Resistance to Reconciliation

In the past few years a number of scholars in a variety of intellectual disciplines have contributed to a better understanding of dyadic conflicts and their resolution. In particular, sociologists, psychologists, anthropologists, lawyers, and others have explored the dynamics of apology and its role in deescalating disputes and promoting forgiveness and reconciliation. Furthermore, we have a better understanding today of the benefits to individuals from forgiveness and reconciliation. Victims who are able to forgive their transgressors have better psychological and physical health and lead richer lives.2 Because lawyers tend to focus their attentions on legal disputes, a growing body of legal scholarship attempts to apply these insights to help promote apology, forgiveness, and reconciliation in courts and alternative dispute-resolution fora. This scholarship has in turn provoked a debate among legal scholars regarding the proper use of apology and apology-promoting tools in the context of legal disputes. The early legal scholarship in this field focused on dyadic disputes. More recently, however, legal scholars have applied the interdisciplinary insights to group conflicts. In the area of apology, for example, one legal scholar has relied on interdisciplinary insights to advocate court-ordered apologies as a civil-rights remedy in cases of civil-rights violations committed against groups of individuals. Similar insights were used to explore the role of apology for helping to resolve international conflicts between states. One author uses these insights to advocate that corporations apologize for product defects and accidents that cause public harm. And another scholar has used the insights to argue that the American Bar Association should apologize and make reparations for its prior exclusion of African American lawyers. Although this development is exciting (after all, who wouldn’t like to see group conflicts and civil unrest avoided), most legal scholars have failed to think carefully about potential differences between dyadic and group conflicts and their resolution. To what extent can insights from apology and forgiveness in dyadic disputes be imported into the group-conflict context? How might differences between the two types of disputes necessitate differing dispute-resolution techniques? And specifically, how is disputant resistance to conflict resolution changed or amplified in the group-conflict context? A group of legal scholars at Vanderbilt Law School, affiliated with the Law and Human Behavior Program, wanted to bring together an interdisciplinary group of scholars whose expertise lies in and around conflict resolution to explore this question. We partnered with the Andrus Family Fund, which generously provided us with the necessary funding to host this conference. The Andrus Family Fund has provided funding to a number of conflict-resolution practitioners who have played important roles in promoting peace, reconciliation, and problem resolution to groups around the world.9 Some of the techniques used by the Fund grantees are adapted from the work of William Bridges, who developed a conceptual framework for how people transition to changes that affect their lives in important ways. The Bridges framework treats transitions in three phases. External changes often require internal psychological transitions, which involve “(1) an ending, (2) a neutral zone, and (3) a new beginning.” In the ending phase, the individual struggles to accept the end of an old way of being. Our connections to people and places, jobs, activities, ways of being, and attitudes help to define us, and the loss of any of these connections can cause not just mourning for the loss of that connection but also a kind of crisis of identity. Endings thus can be painful even when the change is desired. According to Bridges, ending experiences typically involve disengagement, dismantling, disidentification, disenchantment, and disorientation. In the neutral zone, the individual feels confused and anxious, because she does not yet know her new state of being. But in this stage the individual is able to be very creative and to conceive many possibilities for future courses of action.15 In the ending phase the individual adopts her new course of action or sense of self, or both, and reintegrates her new identity with the enduring elements of her old identity.16 Transitions are often aided by rituals set in place to mark the phases of transition and their significance to the individual. The Andrus Family Fund believes that conflicts throughout the world are often caused by or take on their own difficulties in responding to transition. Understanding the Transitions Framework and its implications for dealing with difficulties can significantly aid the process of promoting peace and reconciliation. In addition to providing the conference funding, the Andrus Family Fund was able to provide us with a connection to successful conflict-resolution practitioners who had thought a lot about the relationship between transition and conflict-resolution theory and practice. At the same time, the Fund was equally interested in the question of the extent to which work on individuals can be translated to the group-conflict context. Andrus Family Fund President Steve Kelban noted privately at the conference that the Fund had always proceeded under the assumption that learning about individuals could be applied to groups. But to what extent is this so, and how, if at all, should legal and social policies take into account differences? Of course, this is a huge question that cannot be resolved in a single conference. Many of the participants were addressing the question only indirectly, and, like any good conference, we crafted as many questions and disagreements as we did seeds of understanding. Even so, conceptual progress was made at the conference, and the product of the individual scholars’ and practitioners’ thinking is provided in this issue. Before describing the basic thesis of each of the articles in this issue, let me elaborate on some of the insights regarding group-conflict resolution that were identified at the conference

Group-Conflict Resolution: Sources of Resistance to Reconciliation

In the past few years a number of scholars in a variety of intellectual disciplines have contributed to a better understanding of dyadic conflicts and their resolution. In particular, sociologists, psychologists, anthropologists, lawyers, and others have explored the dynamics of apology and its role in deescalating disputes and promoting forgiveness and reconciliation. Furthermore, we have a better understanding today of the benefits to individuals from forgiveness and reconciliation. Victims who are able to forgive their transgressors have better psychological and physical health and lead richer lives.2 Because lawyers tend to focus their attentions on legal disputes, a growing body of legal scholarship attempts to apply these insights to help promote apology, forgiveness, and reconciliation in courts and alternative dispute-resolution fora. This scholarship has in turn provoked a debate among legal scholars regarding the proper use of apology and apology-promoting tools in the context of legal disputes. The early legal scholarship in this field focused on dyadic disputes. More recently, however, legal scholars have applied the interdisciplinary insights to group conflicts. In the area of apology, for example, one legal scholar has relied on interdisciplinary insights to advocate court-ordered apologies as a civil-rights remedy in cases of civil-rights violations committed against groups of individuals. Similar insights were used to explore the role of apology for helping to resolve international conflicts between states. One author uses these insights to advocate that corporations apologize for product defects and accidents that cause public harm. And another scholar has used the insights to argue that the American Bar Association should apologize and make reparations for its prior exclusion of African American lawyers. Although this development is exciting (after all, who wouldn’t like to see group conflicts and civil unrest avoided), most legal scholars have failed to think carefully about potential differences between dyadic and group conflicts and their resolution. To what extent can insights from apology and forgiveness in dyadic disputes be imported into the group-conflict context? How might differences between the two types of disputes necessitate differing dispute-resolution techniques? And specifically, how is disputant resistance to conflict resolution changed or amplified in the group-conflict context? A group of legal scholars at Vanderbilt Law School, affiliated with the Law and Human Behavior Program, wanted to bring together an interdisciplinary group of scholars whose expertise lies in and around conflict resolution to explore this question. We partnered with the Andrus Family Fund, which generously provided us with the necessary funding to host this conference. The Andrus Family Fund has provided funding to a number of conflict-resolution practitioners who have played important roles in promoting peace, reconciliation, and problem resolution to groups around the world.9 Some of the techniques used by the Fund grantees are adapted from the work of William Bridges, who developed a conceptual framework for how people transition to changes that affect their lives in important ways. The Bridges framework treats transitions in three phases. External changes often require internal psychological transitions, which involve “(1) an ending, (2) a neutral zone, and (3) a new beginning.” In the ending phase, the individual struggles to accept the end of an old way of being. Our connections to people and places, jobs, activities, ways of being, and attitudes help to define us, and the loss of any of these connections can cause not just mourning for the loss of that connection but also a kind of crisis of identity. Endings thus can be painful even when the change is desired. According to Bridges, ending experiences typically involve disengagement, dismantling, disidentification, disenchantment, and disorientation. In the neutral zone, the individual feels confused and anxious, because she does not yet know her new state of being. But in this stage the individual is able to be very creative and to conceive many possibilities for future courses of action.15 In the ending phase the individual adopts her new course of action or sense of self, or both, and reintegrates her new identity with the enduring elements of her old identity.16 Transitions are often aided by rituals set in place to mark the phases of transition and their significance to the individual. The Andrus Family Fund believes that conflicts throughout the world are often caused by or take on their own difficulties in responding to transition. Understanding the Transitions Framework and its implications for dealing with difficulties can significantly aid the process of promoting peace and reconciliation. In addition to providing the conference funding, the Andrus Family Fund was able to provide us with a connection to successful conflict-resolution practitioners who had thought a lot about the relationship between transition and conflict-resolution theory and practice. At the same time, the Fund was equally interested in the question of the extent to which work on individuals can be translated to the group-conflict context. Andrus Family Fund President Steve Kelban noted privately at the conference that the Fund had always proceeded under the assumption that learning about individuals could be applied to groups. But to what extent is this so, and how, if at all, should legal and social policies take into account differences? Of course, this is a huge question that cannot be resolved in a single conference. Many of the participants were addressing the question only indirectly, and, like any good conference, we crafted as many questions and disagreements as we did seeds of understanding. Even so, conceptual progress was made at the conference, and the product of the individual scholars’ and practitioners’ thinking is provided in this issue. Before describing the basic thesis of each of the articles in this issue, let me elaborate on some of the insights regarding group-conflict resolution that were identified at the conference

Economics, Public Choice, and the Perennial Conflict of Laws

This piece is a response to an article by Andrew Guzman, which proffers an efficiency framework for choice-of-law problems in interjurisdictional conflicts. The response incorporates insights from public choice theory into choice of law to draw two conclusions. First, public choice theory confounds our attempts to draw normative conclusions about efficient choice-of-law policies. Second, assuming that we can overcome these difficulties to ascertain the content of efficient choice-of-law policies, public choice theory exposes the practical difficulties of moving courts toward more efficient choice-of-law decisions. In short, the problem is both more difficult and more elusive than others, including Guzman, have presupposed

How Modern Choice of Law Helped to Kill the Private Attorney General

It is a great honor to be asked to deliver the second Annual Brainerd Currie Lecture at Mercer University School of Law. Brainerd Currie was an immensely influential law professor who is recognized as the leading scholar of conflict of laws in the twentieth century. Mercer has the distinction of being both Currie’s law school alma mater as well as his first academic appointment, probably the two most significant intellectual influences on any scholar. More recently, Mercer has attracted other influential conflicts scholars and cheerleaders of the topic, including Dean Gary Simson, Larry Ribstein, Hal Lewis, and Bruce Posnak, among others. Thus, Mercer is a most fitting host for such an occasion. The lecture provides an occasion to celebrate the highly influential work of Brainerd Currie in the area of conflict of laws. Currie formulated an entirely new approach to choice of law that has revolutionized the way courts and scholars think about the problem. With fifty years of hindsight, however, it is possible to look back on the influence of Currie’s work with quite a bit more perspective than might have been possible earlier. With that perspective, I hope to argue that Currie\u27s approach has had unintended and, for Currie, perverse consequences. Without thinking carefully about the long-term consequences of their choice-of-law decisions or how the choice-of-law landscape would play a role in the ever-increasing pressures presented by interstate and international trade, courts using modern approaches to choice of law have contributed to the demise of the private attorney general. In doing so, the choice-of-law revolution, which Currie sparked in order to enable states to more effectively promote state policies, ultimately has produced the opposite result. This Essay will briefly explain Currie’s approach to choice of law and its significant influence for modern choice-of-law approaches. It will then explain how one of those approaches, the Restatement (Second) of Conflict of Laws, both facilitated further state experimentation with choice-of-law policies and enabled private parties to gain some certainty regarding the governing law for contracts. This Essay will show how the choice-of-law clauses sanctioned in the Second Restatement work in tandem with other choice clauses to enable private parties to avoid undesired laws. Finally, this Essay will argue that the choice clauses have led to the demise of the private attorney general

Preemption and Choice-of-Law Coordination

The doctrine treating federal preemption of state law has been plagued by uncertainty and confusion. Part of the problem is that courts purport to interpret congressional intent when often Congress has never considered the particular preemption question at issue. This Article suggests that courts deciding preemption cases should take seriously a commonly articulated rationale for the federalization of law: the need to coordinate applicable legal standards in order to facilitate a national market or to otherwise provide clear guidance to parties regarding the laws that apply to their conduct. In situations where federal law can serve a coordinating function but congressional intent regarding preemption is unclear we propose that courts consider whether the states have effectively allocated sovereign authority among themselves through choice-of-law rules. Where states have achieved such horizontal coordination, Congress often has little need to usurp the states\u27 role as laboratories for experimenting with potentially diverse substantive laws. Our approach would help to promote a healthy federalism by encouraging courts to preserve the benefits of local and state sovereignty while simultaneously enabling federal statutes to coordinate U.S. law where necessary. To show how our approach might improve preemption decisions, we apply it to several areas in which the courts have struggled. Although our approach provides a conceptually obvious, and therefore elegant, solution to many preemption problems, to date it has been entirely unexplored