Apology Within a Moral Dialectic: A Reply to Professor Robbennolt

Over the last several years, much has been written about the role of apology in facilitating the resolution of legal disputes. Within this body of work a debate has developed among legal scholars, practitioners, and legislators. Under traditional rules of evidence an apology which acknowledged fault would enter evidence as an admission against interest. Now there is a movement to legislatively “protect” apologies from the effects of the traditional rule in order to facilitate apology without evidentiary encumbrance. Scholars who have argued in favor of the relaxation of the traditional rule have largely relied on anecdotal evidence to support their arguments. Now, in her recent article Apologies and Legal Settlement, Professor Jennifer K. Robbennolt makes a long-overdue empirical contribution to analyses of the role of apology in settlement. Robbennolt concludes that fault-admitting apologies will indeed enhance the likelihood of settlements, and that this is true regardless of whether or not the apology is “protected.” This conclusion matters not only because it provides an empirical basis for the efficacy of fault admitting apologies, but also because of its attraction to legislators who like to see empirical studies before changing long-standing rules of law like the evidentiary rule in question here.