Reciprocity, utility, and the law of aggression

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

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. IMAGE FORMULA 4IMAGE FORMULA 5