Reciprocity, Utility, and the Law of Aggression
Bernstein, Anita, Vanderbilt Law Review
From panhandling to predatory pricing, from local court rules on civility through the condemnation of nation-states when they push past their boundaries, American law appears divided and perplexed about the question of aggression. Sometimes the law will condemn unwelcome encroachment, taking note of the boundary around an individual. The law also cheers encroachers onward, however, applauding their vigor and their tendency to create wealth.
Anita Bernstein argues that considerable order lies behind this division. The law of aggression in the United States reveals careful heed to three crucial stakes: first, the (target's) desire to be free from unwelcome incursion; second, the (initiator's) wish to pursue projects without restraint; and third, a societal judgment about the relative merits of these contrary postures. Borrowing terms from George Fletcher, she classifies the first two interests under "reciprocity" and the third under "utility." This tripartite framework provides a classification scheme for treatments of aggression, including some of those found outside the law, and enables policymakers to learn and build from interdisciplinary sources. After detailing the methods and premises of a taxonomy of aggression, the Article presents two case studies of how reformers have effected change in the law of aggression. Reciprocity-utility analysis casts these results in a newer light, suggesting that the law of aggression can be changed only when reformers heed the respective positions of targets, initiators, and societal onlookers.
The themes of incursion and boundary-crossing unite disparate legal domains. Wherever human beings cross paths and share space, law or law-like traditions develop to regulate this terrain by distinguishing permitted from proscribed intrusion.' Crimes and torts, regulation and liability, claims and defenses to claims, private law and public law all use a variety of measures-punishments, administrative rules, equitable remedies, professional discipline, and informal or extralegal sanctions-to condemn undue aggression.2 Concern about aggression may be found in the law of every jurisdiction in the United States.3
Within American law, an extra increment of aggression can amount to the only difference between condoned and condemned behavior. Panhandling, for instance, enjoys First Amendment protection,4 but states may ban aggressive panhandling.5 The crimes of harassment and stalking similarly identify aggression as that which makes tolerated conduct (call it courtship?) no longer tolerable.6 Antitrust law exalts competition, fully aware that human beings will suffer, and firms fail, in its name, while deeming predation bad enough to warrant a treble-damages civil penalty.8 Employment law rests on the premise that labor is bought and sold in a market;9 in southern California, cradle of American trends, some municipalities set a national example by making it illegal for workers to solicit employment from motorists.10 The United Nations charter, which presumes-without condemnation-that nations pursue agendas that conflict with what other nations pursue, also declares that a country violates international law when it commits an act of aggression.ll Many localities prohibit "solicitation" of prostitution, while tolerating exchanges of sex for money that do not contain the element of approach to a passive recipient.12 Lawyers are expected to work hard to garner new "business,"13 but they must do so without explicit overtures to prospective clients: Professional authorities frown on advertising, and also discipline lawyers for solicitation,14 which is said to be "fraught with the possibility of undue influence, intimidation, and overreaching."15 Although attorney influence-some would go further and substitute "client dependency"-is a sine qua non of the lawyer-client relationship,16 it must not reach a level that regulators will deem undue. …