Bargaining Without Law
Clinical Theory Workshop 25th Anniversary Conference, October 2010
65 Pages Posted: 9 Aug 2010 Last revised: 10 Oct 2011
Date Written: 2011
Like a professional athlete on growth hormones, legal bargaining scholarship has transformed itself over the years. Once an amateurish assortment of war stories and folk tales, now it is a hulking behemoth of social science surveys and studies. There is a lot to like in this transformation. Much of the new writing is insightful, sophisticated, and spirited, with things to tell even the most experienced bargainer. But it also is missing something important: law. Bargaining scholars now routinely write about dispute settlement as if the strength of the parties’ competing legal claims is of no consequence. Rarely do they discuss the role of substantive legal argument in evaluating settlement options, for example, and when they do, it usually is in terms of whether the argument is strategically “framed,” or “anchored,” rather than whether it is well reasoned and supported by evidence (i.e., persuasive). This is a serious mistake. At its core, a legal dispute is a disagreement about the meaning of law, and it must be resolved on substantive grounds if the resolution is to be legitimate and lasting. Psychological and social workarounds may paper over a dispute, or suppress it, for a time but they will not resolve it. If it wants to be helpful, bargaining scholarship needs to describe how legal claims are argued conversationally, without polarizing relationships, producing lingering animosities, and provoking recrimination spirals. This is the heart of bargaining; the rest is sideshow. In this article I attempt to describe how this might be done.
Keywords: dispute bargaining, negotiation, lawsuit settlement, ADR, social science, bargaining theory, legal argument, substantive law, legal reasoning, legal advocacy
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