12. In a leading case, Massachusetts’s Supreme Judicial Court said, “One cannot be required to hold a tenancy in common against his consent.” Roberts v. Jones, 307 Mass. 504, 30 N.E.2d 392, 132 A.L.R. 663 (1940).
13. In the New Testament parable of the prodigal son, when the older brother complained about his sibling’s favored treatment, the father said: “Son, thou art ever with me, and all that I have is thine … we should make merry, and be glad: for this thy brother was dead, and is alive again; and was lost, and is found” (Luke 15:32, King James Version).
14. See the Old Testament story of Cain and Abel (Genesis 4:1–16). When Cain saw the Lord preferring Abel’s gift, sibling jealousy led to fratricide.
15. Douglas Stone, Bruce Patton, and Sheila Heen, Difficult Conversations: How to Discuss What Matters Most (New York: Viking Penguin, 1999).
16. For further reading on estate planning for vacation homes, see Wendy Goffe, “Planning Strategies for Keeping the Vacation Home in the Family,” Journal of Practical Estate Planning 32 (2005): 3; Wendy Goffe, “Keeping Vacation Property in the Family,” Heckerling Institute on Estate Planning (2007); Balfe, Passing It On; Huggins, “Passing It On.”
17. In two other cases I have mediated, I have told the adult siblings that, in my view, the conflict was not their fault but the result of poor planning by their parents. In one instance a father left three siblings a number of pieces of valuable real estate as tenants in common. All the liquid assets in the estate were left to a foundation. This meant none of the siblings had the liquid assets to buy one another out. They were faced with a number of difficult decisions as co-owners. Which properties should be kept? Which should be sold? Which should be subdivided? How should the properties be valued? One sibling wanted to keep a particular property for sentimental reasons. The conflicts led to litigation. Although the disputes were ultimately resolved through mediation, the relations among the siblings were permanently damaged.
18. I love thinking about these kinds of problems. A parent may often simply leave “all personal property” such as jewelry, furniture, pictures, and the like to “my children in equal shares” with no specific allocation. There are lots of methods to divide things up: (1) “you divide, I choose”; (2) rotating choice; (3) flip a coin; (4) an internal auction, where each heir is given the same number of points to allocate among items; or (5) a sealed bid auction, where each sibling makes a dollar bid for the item in question; the high bidder gets the item, and the other heirs divide his payment. There are fascinating strategic implications of different process designs, and it is essential to think these through carefully. No single method is perfect. Depending on the context, an otherwise reasonable method may result in a very one-sided outcome. Rotating choice, for example, works badly if there is one item that is much more valuable than the others. “You divide, I choose” can be risky for those whose preferences are obvious. If I know your preferences and I get to divide, I can guarantee for myself a greater portion of the surplus. See Mnookin, “Divorce Bargaining: The Limits on Private Ordering,” University of Michigan Journal of Law Reform 18 (Summer 1985): 1015–37. See also Howard Raiffa with John Richardson and David Metcalfe, Negotiation Analysis: The Science and Art of Collaborative Decision Making (Cambridge, Mass.: Harvard University Press, 2002), pp. 232–33 (alternative process solutions to division problems) and 338–40 (division of art collection between brothers).
CONCLUSION
1. See generally Avishai Margalit’s Tanner lecture and recent book cited in the Introduction, n. 2. Avishai Margalit, “Indecent Compromise,” in the Tanner Lectures on Human Values (delivered at Stanford University, May 2005). See http://www.tannerlectures.utah.edu/lectures/documents/Margalit_2006.pdf.; Avishai Margalit, On Compromise and Rotten Compromises (Princeton, N.J.: Princeton University Press, 2009).
2. In my seminar on this topic at Harvard Law School, my students have come up with literally scores of other examples in which a disputant faces a difficult decision of whether negotiation makes sense. Should a district attorney offer immunity to a mob hit man in exchange for testimony that might help convict his boss? Should Israel negotiate with Hamas over an exchange of prisoners? Context matters. My framework requires the careful assessment of the facts and circumstances of a particular dispute at a particular time.
3. Psychologists still have much to learn about the intricacies of human judgment and decision-making. A number of journals, including Judgment and Decision Making and the Journal of Behavioral Decision Making, are devoted to the subject. For a review of current psychological research on decision-making, see Elke U. Weber and Eric J. Johnson, “Mindful Judgment and Decision Making,” Annual Review of Psychology 60 (2009): 53–85.
4. One can translate virtually any moral principle into cost/benefit terms, by attaching “weight” to it and then including it in the balance when comparing consequences.
5. Suppose, for example, you have the opportunity to save twenty lives if you are willing to kill one innocent child. Would you be prepared to shoot the child? If you are a strict consequentialist, you might pull the trigger. After all, that action would save nineteen more lives. On the other hand, many of us would find that sort of reasoning abhorrent and would not pull the trigger on the moral principle that it is always wrong to intentionally cause the death of an innocent person.
This example is analogous to the famous streetcar paradox. Suppose a streetcar is out of control, heading for five people who are tied to the track ahead. You have the opportunity to pull a switch and divert the car onto a different track, where only one person is tied to the track. Most people would opt for pulling the switch. Suppose now that you are standing on a footbridge above the streetcar, which is still headed for the five people. You have the opportunity to push a person off the footbridge so that he will land in front of the streetcar, stopping it before it reaches the five people tied to the track. Do you still choose to sacrifice one person to save five others? See Philippa Foot, “The Problem of Abortion and the Doctrine of the Double Effect,” in Virtues and Vices: And Other Essays in Moral Philosophy (Oxford U.K.: Oxford University Press, 2002); Judith Jarvis Thomson, “The Trolley Problem,” Yale Law Journal 94(6) (1985).
For a discussion of the philosophical issues, and the fascinating psychologi-cal experiments suggesting that different parts of the brain are involved in dif-ferent kinds of moral reasoning, see Joshua Greene and Jonathan Haidt, “How (and Where) Does Moral Judgment Work?” Trends in Cognitive Sciences 6(12): 517–23.
6. Religious traditions that emphasize categorical moral rules (e.g., the Ten Commandments) are in tension with a consequentialist approach, as are some philosophical approaches to morality. For example, deontological approaches to morality suggest that the morality of an act depends not on the act’s consequences but on the character of the act itself and whether it is consistent with certain immutable principles. See, e.g., Immanuel Kant, Groundwork of the Metaphysics of Morals, trans. Mary J. Gregor (New York: Cambridge University Press, 1998). For an example of a neo-Kantian argument, see Christine Korsgaard, Self-Constitution: Agency, Identity, and Integrity (New York: Oxford University Press, 2009). Another approach to morality, that of “aretology,” emphasizes the character of the moral agent and the cultivation of virtue. See, e.g., Alasdair MacIntyre, After Virtue: A Study in Moral Theory, 3rd ed. (Notre Dame, Ind.: University of Notre Dame Press, 2007).
7. For an interesting philosophical argument that to be “too moral” in a categorical sense may not be wise because it can foreclose other important human considerations, see Susan Wolf, “Moral Saints,” The Journal of Philosophy, Vol. 79, No. 8 (Aug. 1982), pp. 419–39.
8. The two examples are President Bush’s decision not to negotiate with the Taliban in 2001 and Churchill’s decision not to pursue negotiation with Nazi Germany in May 1940.
9. I am not suggesting, of course, that a representative must always do what his client or constituent wants, even if it is illegal or unethical. Nor am I sugge
sting that the representative should not try to persuade his client or constituent that negotiation would be wrong.
10. Political scientists have long debated how extensive a role moral values should and do play in the formulation of a nation’s foreign policy. “Realists” suggest that power and national interests are what count, not morality. Others see values playing an important role. See generally, Richard M. Price, Moral Limit and Possibility in World Politics, Cambridge Studies in International Relations 107 (New York: Cambridge University Press, 2008); Cathal J. Nolan, Ethics and Statecraft: The Moral Dimension of International Affairs, 2nd ed., Humanistic Perspectives on International Relations (Westport, Conn.: Praeger, 2004); Andrew Valls, Ethics in International Affairs: Theories and Cases (Lanham, Md.: Rowman & Littlefield, 2000); Gordon Graham, Ethics and International Relations, 2nd ed. (Malden, Mass.: Blackwell, 2008).
11. Scott McClellan, What Happened: Inside the Bush White House and Washington’s Culture of Deception (New York: PublicAffairs, 2008), p. 127.
12. Ibid., p. 128.
13. Leslie H. Gelb, “In the End, Every President Talks to the Bad Guys,” Washington Post, April 27, 2008.
14. President Bush once said: “There is a value system that cannot be compromised—God-given values.” Bob Woodward, Bush at War (New York: Simon & Schuster, 2002), p. 131. These values Bush said included “freedom and the human condition and mothers loving their children.” His frequent references to God made me think, Whose God? U.S. citizens hold many different views of God and spirituality. If Bush based his foreign policy decisions on his personal moral and religious views, that in my view would not be a responsible basis for decision-making.
15. His characterization of Iran, North Korea, and Saddam Hussein’s Iraq as an “axis of evil” was unwise on pragmatic grounds, even if it did not influence his subsequent decisions. See President George W. Bush, “State of the Union Address of the President to the Joint Session of Congress,” http://www.c-span.org/executive/transcript.asp?cat=current_event&code=bush_admin&year=2002. My objection is not based on any disagreement that these were evil regimes. I believe that this blatant demonization served no useful diplomatic purpose and only made it more difficult for Iran to explore secretly with the United States the possibility of a “grand bargain.” See Jahangir Amuzegar, “Iran’s Crumbling Revolution,” Foreign Affairs 82(1) (2003): 46.
16. Barack Obama, “Remarks Following a Meeting with Prime Minister Silvio Berlusconi of Italy and an Exchange with Reporters,” in June 15, 2009, Daily Compilation of Presidential Documents (Superintendent of Documents, 2009), 3. DCPD 20090046 at p. 3.
17. He supports the “clear principle that where we can resolve issues through negotiations and diplomacy, we should.” Barack H. Obama, “Remarks Following a Meeting with Prime Minister Benjamin Netanyahu of Israel and an Exchange with Reporters,” in May 18, 2009, Daily Compilation of Presidential Documents, 4. DCPD 200900375 at p. 4.
18. It is easy to imagine a deal with the Taliban that offers substantial pragmatic benefits for the United States but may seriously harm others for whom we should feel some responsibility. For example, suppose a large group of Taliban “nonstate actors” agrees to stop harboring terrorists in exchange for complete autonomy over a region of Afghanistan and Pakistan. The Taliban further guarantees that no terrorist acts against the United States will originate from within their borders. Assuming you think this deal can be enforced, it would serve the United States’ immediate interests quite well. However, this bargain would allow the Taliban to impose its version of Islamic law on the entire region, which in turn would lead to the closure of all schools for girls. Would this be, in Avishai Margolit’s terms, a “rotten compromise,” which he defines as “an agreement to establish or maintain an inhuman regime, a regime of cruelty and humiliation”?
Index
Page numbers beginning with 273 refer to notes.
Abu Ghraib, 274
accommodation, 198
across the table, 133–34, 192, 291
active listening, 197, 198, 236, 238
advice, 264
Afghanistan, 2, 6, 266, 306
Africanism, 114
African National Congress (ANC), 106, 107, 108, 113–14, 119, 120, 121, 122, 125, 127, 134
arrest of members of, 129
ban on, 107, 126, 290
Inkatha’s disputes with, 129, 130, 290–91
National Executive Committee on, 116, 123
“rolling mass action” by, 131
socialist policies of, 128
strike organized by, 117
in talks with South African government, 129
Afrikaners, 114, 115, 124, 125, 128, 133, 136
after-the-fact analysis, 6, 273
agent-principal relationship, 32
Agranat, Shimon, 74–75, 283
Agreement for Further Arbitration, 295
Ahmadinejad, Mahmoud, 267
Alepin, Ron, 168
Algeria, 118
alimony law, 299
al-Qaeda, 2, 6, 7, 273
“alternative dispute resolution” (ADR), 142
alternatives to negotiation, 262
of Churchill, 94–95
cost-benefit analysis of, 22–23
of Kasztner, 60–61, 78
of Sharansky, 41
Amdahl, Gene, 293
American Arbitration Association, 292
American Federation of Musicians (AFM), 190, 200, 207, 298
analytical reasoning, 17, 21, 36, 37, 263
anti-Semitism, 277
apartheid, 3, 4, 5, 106, 114–36, 289
creation of, 115–16
de Klerk’s loosening of, 290
worldwide movement against, 120
appeasement, 84, 85, 105
Churchill’s denunciation of, 86–87
in negotiations, 18, 20
arbitration, see med-arb (mediation and arbitration)
Arbitration Panel, 154–60, 171, 172–73
Arendt, Hannah, 280–81
ascending bid auctions, 301
assertiveness, 134, 192, 194, 198
Attlee, Clement, 84, 98
auctions, 301
Auschwitz concentration camp, 57, 65, 73, 76, 79, 279, 280
Auschwitz Protocols, 279–80
Austria, 63, 66, 86
Avital, Natasha Stieglitz, 38–39, 41, 42, 46, 276
avoiders, 198
“axis of evil” speech, 305
bad behavior, rewarding of, 4
Baldwin, Stanley, 286
Bank of America, 187
bargaining, see negotiations; specific topics
Barnard, Niel, 123, 124
Barr, Tom, 145, 155, 156, 159, 160, 162, 163, 168, 176
in IBM antitrust case, 143, 146, 147–48
Bastianini, Giuseppe, 91, 287
BATNA, see Best Alternative to a Negotiated Agreement
Becher, Kurt, 69–70, 72, 74, 75, 281, 282
Bechtle, Nancy Hellman, 179, 187–89, 196, 197, 199, 200, 206
Begin, Menachem, 118
behind the table, 134, 192, 291
Belgium, 85, 89, 92, 286, 290
Ben-Gurion, David, 282
Bergen-Belsen, 70
Berlin Wall, 128, 290
Best Alternative to a Negotiated Agreement (BATNA), 30, 275
of Audrey Harding, 259
of Sharansky, 40
“Bikuta corporation,” 11–15, 16–17, 18–21, 22–27, 28, 34–35, 49, 265, 275
bin Laden, Osama, 2, 6, 7, 273, 274
Bisho massacre, 132
Bizos, George, 122
blacks, 115–16, 289
blut gegen waren (“blood for goods”), 63, 66, 78
Boers, 115
Bok, Sissela, 284
Botha, Pieter, 122–23, 124, 125, 288–89
brainstorming, 256–57
Brand, Hansi, 65, 67–68, 279, 280, 282
Brand, Joel, 56, 61, 63, 65, 66, 79, 277, 279
Bratislava,
58, 59, 60, 279
Braunstein, Steve, 298
brinkmanship, 192
Britain, Battle of, 84, 102
British Union of Fascists, 101
Budapest, 55–56, 57, 58, 60–61, 63, 66, 67, 69, 70, 77, 79, 281
Budapest Jewish Council, 58, 277
Bulgaria, 278
Burson-Marsteller, 140
Bush, George W., 2, 3, 6, 7, 266–67, 273, 305
business, 1, 4, 5, 8
see also Fujitsu; IBM; San Francisco Symphony
Buthelezi, Mangosuthu, 290
Cadogan, Alexander, 97
California Bar Journal, 142
“call for battle,” 194, 265
“call for peace,” 18, 20
Cameroons, 118
Canada, 145
Cape Cod Land Bank, 257
Cape Colony, 114
Capone, Al, 163
Card, Claudia, 284
Chamberlain, Neville, 84, 85–86, 89, 94, 102, 105, 264, 288
Hitler seen as unreliable by, 95
and Reynaud’s offer to Mussolini, 97–98, 99
chamber music, 191
Cheney, Dick, 267
Central Intelligence Agency (CIA), 36, 39, 170
Cheshin, Mishael, 283
child custody and visitation, 212, 299
child support, 212, 299
Churchill, Jennie Jerome, 88
Churchill, Randolph, 88
Churchill, Winston, 3, 4, 78, 83–105, 264, 285–88, 305
appeasement denounced by, 86–87
made prime minister, 88
negotiations with Hitler refused by, 83, 84, 93–94, 95–96, 99–100, 101–5
and Reynaud’s offer to Mussolini, 98, 99
Clapes, Tony, 168
clients, 176
Clinton, Bill, 7, 273
Cluj, Romania, 53–54, 64, 65, 67, 72, 75, 76, 77, 80, 277, 279, 280, 283
CNN, 141
coerced license, 141
coercive power, 173–74
Coetsee, Kobie, 108, 121, 122–23
Cohen, Haim, 282
collective bargaining, 186, 191–92, 197, 199, 200
“coloreds,” in Apartheid, 115–16, 289
Committee for Human Rights, 38
communism, 85
Communist Party, South African, 113, 124, 129
competitiveness, 198
Bargaining with the Devil Page 38