Content uploaded by Roger Conner
Author content
All content in this area was uploaded by Roger Conner on Mar 20, 2015
Content may be subject to copyright.
19_CONNER & JORDAN_FINAL.DOC 9/18/2009 11:03:57 AM
NEVER BEING ABLE TO SAY YOU’RE
SORRY: BARRIERS TO APOLOGY BY
LEADERS IN GROUP CONFLICTS
ROGER CONNER*
PATRICIA JORDAN**
I
INTRODUCTION
A hopeful period in the Middle East conflict culminated in a formal peace
accord between Jordan and Israel in 1994. Disputes over the implementation of
this agreement arose, however, and by 1997, the positive feelings of the peace
accord had given way to an escalating war of words between Israeli Prime
Minister Benjamin Netanyahu and Jordan’s King Hussein over Jewish
settlements. In a letter dated March 9, Hussein warned Netanyahu of
“inevitable violent resistance” unless Israel relented in its proposal to construct
a new Jewish settlement in East Jerusalem.1 Netanyahu defensively replied the
next day that he had “inherited a [peace] process that was failing.”2 On March
13, a Jordanian soldier opened fire on Israeli girls on a school outing to a nature
preserve along the Jordan River.3 Seven of the girls were killed.4 Yelling
“madman,” other Jordanian soldiers restrained the gunman.5 Jordanian officials
Copyright © 2009 by Roger Conner and Patricia Jordan.
This Article is also available at http://www.law.duke.edu/journals/lcp.
* Adjunct Professor of Law and Director of the Advocacy Project, Vanderbilt University Law
School.
** Associate Project Director of the Advocacy Project, Vanderbilt University Law School. The
authors wish to thank the Andrus Family Fund for its support. We also wish to acknowledge the very
valuable feedback we received from Steven Kelban, Ed Rubin, Erin O’Hara, Sabena Leake, Jay
Rothman, Meghan Clarke, Al Gerhardstein, Damon Lynch, Marvin Johnson, Margaret Blair, and
Stephen Jordan.
1. Serge Schmemann, King Hussein Rebukes Netanyahu for “Intent to Destroy” Peace Plan, N.Y.
TIMES, Mar. 12, 1997, at A1.
2. Id.; see also Serge Schmemann, “Fed Up” with Criticism, Netanyahu Lashes Out, N.Y. TIMES,
Mar. 13, 1997, at A10 (“‘I’m getting frankly fed up with the idea that everything we do is a violation of
the agreement, and everything the Palestinians say is in compliance with the agreement.’”) (quoting
Prime Minister Netanyahu).
3. Serge Schmemann, Jordanian Soldier Kills 7 Israeli Schoolgirls, N.Y. TIMES, Mar. 14, 1997, at
A1.
4. Id.
5. Id.
19_CONNER & JORDAN_FINAL.DOC 9/18/2009 11:03:57 AM
234 LAW AND CONTEMPORARY PROBLEMS [Vol. 72:233
condemned the shooting as “a murderous act carried out by a Jordanian soldier
on his own,” and vowed to prosecute him “to the full extent of the law.”6
Israeli officials immediately blamed King Hussein for the attack, saying his
words were “an invitation to murder.”7 The King denied that the shooting was
related to his letter, but he cut short a state visit to Spain and traveled to the
victims’ hometown to meet the grieving parents.8
Wearing a red-checkered kaffiyeh with his dark suit and accompanied by two of his
children . . . the King knelt before each of the families in their separate homes as they
sat on the floor in the Jewish custom for the seven-day mourning period.9
“I feel that I’ve lost a child,” the King told the parents, promising to spend
his life pursuing peace and security for all children.10 “[King Hussein] was very
human, very warm,” one of the parents said.11 The King’s act struck “a deep
emotional chord”12 among Israelis who followed live broadcasts of the King’s
visits.13 Cries for revenge simply vanished.
Thus was the fragile peace agreement between Israel and Jordan protected
at a moment of extreme peril. Hussein was a powerful leader on one side of a
group conflict. He apologized to individuals from the opposing group for
injuries caused by members of his own. The effect was to provide a measure of
solace to the victims’ families,14 to lessen the desire of the opposing group for
revenge and retaliation, and to improve the relationship between the groups by
increasing feelings of empathy.15
6. Ann LoLordo, Jordanian Soldier Kills Seven Israeli Schoolgirls; 6 More Are Wounded at Scenic
Border Site Near Jordan River; Other Soldiers Subdue Him; King Hussein Assails Shooting; Abruptly
Returns from Spain, BALTIMORE SUN, Mar. 14, 1997, at 1A.
7. Liat Collins, Tichon: The Pain is All of Ours, JERUSALEM POST, Mar. 14, 1997, at 5 (quoting
Michael Kleiner, head of the Land of Israel Front, describing the letter sent by King Hussein to Prime
Minister Netanyahu). Another Labor party official said “words can cause madmen to carry out hideous
crimes.” Id.; see also Ethan Bronner, Jordanian Kills 7 Israeli Girls on Outing, BOSTON GLOBE, Mar.
14, 1997, at A1 (“‘Recent declarations created a psychological atmosphere that could lead to such tragic
acts.’”) (quoting Israel’s foreign minister).
8. Schmemann, supra note 3; Serge Schmemann, A Time to Mourn: King Hussein Comforts
Israelis, N.Y. TIMES, Mar. 17, 1997, at A1.
9. Schmemann, supra note 8.
10. Joel Greenberg, “I Feel I’ve Lost a Child,” King Says, N.Y. TIMES, Mar. 16, 1997, at A6.
11. Id.
12. Id. For example, an Israeli watching King Hussein’s actions recounted, “[Y]ou could see the
sadness in his eyes. He is simply human, a human being.” Id. Another Israeli acknowledged, “You see
that he wants peace.” Id.
13. Schmemann, supra note 8.
14. Greenberg, supra note 10 (“Ruhama Cohen, who lost her 13-year-old daughter, Keren, had
been reluctant at first to receive the King, but after his visit she said it had helped her cope with the
loss. ‘He gave us a good feeling and strengthened us,’ she said.”).
15. Greenberg, supra note 10; Schmemann, supra note 8 (“As [Hussein] rose to leave, [the
grandfather of one of the slain schoolgirls], Nisim Petihi, an immigrant from Yemen, blessed him in
Arabic.”).
19_CONNER & JORDAN_FINAL.DOC 9/18/2009 11:03:57 AM
Spring 2009] NEVER BEING ABLE TO SAY YOU’RE SORRY 235
Group conflict frequently produces behavior by members of one side that is
perceived as unjust by those who are harmed on the other side.16 Unless the
resulting retaliatory urge is blunted or defused in some way, distrust and a
desire for revenge grow.17 Eventually, some act of real or perceived retaliation
occurs, and the cycle is repeated in the “cause-effect-effect-effect” pattern or
the “inexorable chain of causality.”18 This is perpetuated by Rothman’s four
engines of permanent disputes:
(1) Blaming the other side for the conflict;
(2) Polarizing our side against theirs;
(3) Attributing negative character and disposition to the opponents;
(4) Projecting unacceptable traits from one’s own side onto another side.19
The success of King Hussein’s initiative suggests that apology is an
instrument of leadership that can interrupt this pattern and advance the
interests of the leader and his group, reducing the desire to retaliate and
increasing the willingness to cooperate. Put another way, unlike dyadic disputes,
in which the benefits of apology flow primarily to the recipient, in group
conflicts the benefits flow equally to the maker. Still, apologies by powerful
leaders for injuries to members of a competing group are extremely rare. The
purpose of this article is to explore why this is so.
Section II describes what typically occurs in a long-standing conflict when
one group is accused of unjustly harming people from the other side. Leaders
respond with a standard script that minimizes their responsibility and calls
attention to the other’s wrongdoing. An apology or even an acknowledgment of
responsibility for the injury thus represents a significant change in well-settled
patterns of behavior and attitudes.
Section III lays out a series of hurdles that stand between a leader and the
decision to apologize even if doing so would advance the group’s interests. First,
leaders do not think they need to apologize because their own psychological
processes screen out or distort information conflicting with their belief that fault
lies mostly on the other side. Second, even if leaders perceive that facts on the
ground might call for apology, they find it difficult to get through the
psychological transition required to change their public identity and behavior.
16. JAY ROTHMAN, RESOLVING IDENTITY-BASED CONFLICT IN NATIONS, ORGANIZATIONS,
AND COMMUNITIES 23–28 (1997) (arguing that conflict between different groups is inevitable and that
each side tends to see its own motives in a positive light but to be suspicious of the other’s intentions).
17. Tamra Pearson d’Estrée, Dynamics, in CONFLICT: FROM ANALYSIS TO INTERVENTION 68, 73
(Sandra I. Cheldelin et al. eds., 2003) (describing the spiral of escalation in which “[h]eavy tactics used
by one party . . . produce certain psychological states in the other party . . . such as blame, anger, fear,
and threats to image. These psychological states encourage the other party to respond harshly . . . which
in turn produce[s] these same psychological states in the first party, leading to another harsh
response.”).
18. Danielle Celermajer, From the Levinasian Apology to the Political Apology: Reflections on
Ethical Politics 6, 12 (Sept. 25–27, 2006) (refereed paper presented to the Australasian Political Studies
Association conference) (citing HANNAH ARENDT, THE HUMAN CONDITION 241 (1958)).
19. ROTHMAN, supra note 16, at 24 (numbers and internal punctuation added).
19_CONNER & JORDAN_FINAL.DOC 9/18/2009 11:03:57 AM
236 LAW AND CONTEMPORARY PROBLEMS [Vol. 72:233
Third, the very forces that hold a group together deter its leader from taking the
political risk of breaking from established patterns.
Section IV examines how the apology works if a leader can overcome these
hurdles and apologize. Considering that the same attitudes, beliefs, and habitual
patterns of response that prevent apology also prevent the receiving group from
giving the opposing group a fair hearing, how does apology generate
forbearance and forgiveness? We argue here that an apology bypasses these
cognitive and social defenses to the extent that listeners perceive it as a
reenactment of an “archetypal narrative.”
Section V discusses the implications of this analysis for leaders in group
conflicts, and argues that three conditions appear to be necessary before an
effective apology can be expected. First, a degree of ripeness—some
considerable diminution in hostile attitudes and negative stereotypes sufficient
to open communication—appears to be a necessary precondition for a leader to
consider and make an apology. Second, apology is unrealistic without a window
of opportunity—circumstances allowing the leader to limit the scope of the
subject matter of the apology. Finally, words alone are not enough. Since a
positive response requires victims to see a reenactment of an archetypal
narrative, appropriate rituals and symbolic communication are as important to
effective apologies as the text.
II
DENY AND DEFEND: STANDARD RESPONSES TO INJURY IN GROUP
CONFLICTS
Whether the conflict is between Arabs and Israelis in the Middle East,
Hutus and Tutsis in Africa, police officers and African American youth in
Cincinnati, or environmentalists and property owners in California, group
conflict is a repeat-play game. Over time, each group develops a narrative to
explain the conflict, a lens through which every event, past and present, is
interpreted. Each group places the stories of the most egregious behavior of the
other at the center of the narrative, thereby laying claim to the emotional and
political rewards that accrue to victims. Beliefs and attitudes are passed on
regarding the cause of the conflict, who is to blame, and the defensive or
retaliatory conduct needed for self-protection or to even the score.
Leaders from opposing groups also have a script to deal with demands for
acknowledgment, compensation, or apology. For example, if someone from
group B claims to have been injured by a member of group A, A’s leader will
respond along the following lines:
Leader A: The injury did not occur, or if it did occur the claims are exaggerated.
Leader B: A’s refusal to acknowledge the injury fits the pattern of their past deceit.
Leader A: If the injury did occur, the member of our group cannot be blamed because
it was an accident or the result of provocation.
19_CONNER & JORDAN_FINAL.DOC 9/18/2009 11:03:57 AM
Spring 2009] NEVER BEING ABLE TO SAY YOU’RE SORRY 237
Leader B: Claims of “accident” are deceitful and charges of provocation constitute
“blaming the victim.”
Leader A: If the perpetrator is blameworthy, the actions cannot be laid to our group
because he is not a full or legitimate member (for example, an “extremist.”).
Leader B: The perpetrator is not only a member of A’s group, but the act complained
of is a product of A’s policies, beliefs, and values.
Leader A: Even if the perpetrator is a member of our group, the actions were a
regrettable but understandable consequence from being pushed beyond the breaking
point by the accumulation of unresolved grievances and injustice from the past.
Leader B: As to the accumulation of grievances, our cumulative suffering vastly
exceeds that of the other side.
Leader A: In any case, Group B is in no position to demand an apology since it has yet
to apologize for its many past wrongs.
Leader B: Group A’s failure to apologize demonstrates anew their lack of decency and
morality.
These scripts are familiar to leaders and members of both groups, and even
if a leader expresses some regret for the harm to a particular victim, the message
is clear: The events have confirmed, rather than altered, the speaker’s
preexisting narrative.
This script is illustrated by city officials’ and African American leaders’
responses to a tragic episode in the long-simmering conflict between police
officers and African Americans in Cincinnati, Ohio. On April 7, 2001, at about
2:15 a.m., Officer Stephen Roach joined pursuit of Timothy Thomas, a
nineteen-year-old African American wanted by police on fourteen outstanding
misdemeanor warrants.20 Moments after Roach caught up with Thomas in a
darkened alley, the youth lay, fatally wounded, the fifteenth person to die at the
hands of a Cincinnati police officer in six years. All fifteen were African
American.21
At first, the mayor and the chief of police stated that the officer had acted in
self-defense; African American leaders denied the youth was armed. When no
weapon was found, the officer’s defenders pointed out that it had been dark and
the youth had reached inside his pocket when ordered to raise his hands.
African American leaders cited this explanation as proof of the force’s utter
disregard for the lives of black youth.22
Tensions mounted until a full-scale civil disturbance broke out in “Over-the-
Rhine,” the predominantly African American, low-income community adjacent
20. Jane Prendergast & Robert Anglen, Hundreds Protest Police Shooting, CINCINNATI
ENQUIRER, Apr. 10, 2001, at 1A.
21. Id.
22. Id.; see also Dan Horn, The Riots Explode: A City’s Darkest Week, CINCINNATI ENQUIRER,
Dec. 30, 2001, at 4G (describing the rioting, looting, and overall “urban unrest” that caused the mayor
of Cincinnati to issue a state of emergency as well as a mandatory curfew in order to quell the tension
and violence).
19_CONNER & JORDAN_FINAL.DOC 9/18/2009 11:03:57 AM
238 LAW AND CONTEMPORARY PROBLEMS [Vol. 72:233
to the central business district.23 Demonstrators threw rocks and set fires in trash
cans; police officers responded with horses, tear gas, and rubber bullets to
enforce the mayor’s emergency twenty-four-hour curfew.24
Other officers expressed their own doubts about Officer Roach’s version of
events,25 prompting Mayor Charlie Luken to retreat from his earlier defense.
Thomas’s mother announced that she had forgiven Officer Roach and pleaded
for calm.26 While the mayor expressed sorrow over the loss of life, he did not
acknowledge any wrongdoing by the officer or the police department, and
instead emphasized his desire to move on, for Thomas’s death to “be a catalyst
for a new Cincinnati.”27
The “uprising,” as African Americans called it,28 produced a new group of
victims: a predominantly white group of small-business owners and investors
who had been working to create jobs, housing, and economic redevelopment in
Over-the-Rhine. The script was followed again, this time with the roles
reversed. African American leaders blamed the police for provoking
demonstrators, insisted that the youth were pushed beyond the breaking point
by an accumulation of insults and injustice, and argued that the business owners
and investors were at fault for failing to put pressure on the mayor over police
misconduct.29
The point of this example is not to place blame on Mayor Luken for the civil
unrest, as others have done.30 It is rather to illustrate the habitual response of
leaders in group conflicts when a member of their own group is accused of
wrongdoing. Leaders go through a routine script in which any regret is drowned
out by defensive, qualified justifications based on preconceived assumptions,
23. Horn, supra note 22; Francis X. Clines, Appeals for Peace in Ohio After Two Days of Protests,
N.Y. TIMES, Apr. 12, 2001, at A18.
24. Clines, supra note 23.
25. See id. (“‘I have been told [ranking officers] are troubled by the story they are getting,’ Mayor
Luken said. ‘The initial findings don’t back [Officer Roach] up.’”).
26. Gregory Flannery, Mother of the City: Angela Leisure is CityBeat’s 2001 Person of the Year,
CITYBEAT, Feb. 14, 2002, at 21 (“Without doubt, Mrs. Leisure’s plea for peace and her statement of
forgiveness for Roach are exemplary.”); The Early Show: Angela Leisure, Mother of Slain Teenager in
Cincinnati, Talks About the Incident (CBS television broadcast Apr. 13, 2001).
27. Doug Trapp, Firing on Children: Now You Know Why People Run from Cincinnati Police,
CITYBEAT, Apr. 19, 2001, at 16.
28. Gregory Flannery, Long Live the Rebellion: Five Years Later, We’re Still Learning About Our
‘Riot’,’ C
ITYBEAT, Apr. 5, 2006, at 20–21, available at http://www.citybeat.com/cincinnati/article-930-
cover-story-long-live-the-rebellion.html (“Politicians and church groups prefer to speak of ‘civil
unrest,’” whereas African Americans and activists insist “‘[u]prising’ is a much better name for it”
because “[p]eople were rebelling against injustice.”).
29. Trapp, supra note 27; see also Horn, supra note 22 (“Businesses suffered hundreds of thousands
of dollars in damage. . . . ‘Just when things are turning the corner—a lot of reinvestment occurring in
the city—there is this destruction.’”).
30. See, e.g., Gregory Flannery, Mayor Hunky Dory: Black Rage Seems a Mystery to White
Leaders, CITYBEAT, Apr. 19, 2001, at 14 (“Demonstrator Donald Warfield says he’ll put it real simple
for this white reporter. ‘All the mayor’s got to do is apologize to people for what the f**k the police
done,’ Warfield says. ‘He could have calmed this s**t down.’”).
19_CONNER & JORDAN_FINAL.DOC 9/18/2009 11:03:57 AM
Spring 2009] NEVER BEING ABLE TO SAY YOU’RE SORRY 239
even when an effective apology might advance the interests of their group.
Assuming this is so, what prevents leaders from doing what is called for?
III
SOURCES OF A GROUP-CONFLICT LEADER’S RESISTANCE TO CHANGE
To depart from the standard script and apologize requires a leader to break
from habitual patterns of behavior and to change previously held beliefs and
attitudes about her group, the opposing group, and the conflict. Seen in this
light, apology is a subset of a much larger category: actions that require changes
in entrenched attitudes, beliefs, or habits. The human tendency to resist change
has been the subject of considerable academic study in many fields. This section
will discuss insights from the fields of public health, social psychology, political
psychology, public policy, and business management that are particularly
helpful to explain why leaders in group conflicts might fail to seize or even to
recognize an opportunity for the effective use of apology.
A. Behavioral Health and Psychological Resistance
Some of the most extensive scholarship on behavioral change comes from
the world of public health. One widely used model for treatment of patients
who must change their behavior in order to move toward a healthier lifestyle,
for example, smoking or chemical-abuse cessation, arthritis self-management,
or weight reduction, tracks a number of steps.31 According to this model,
individuals move through six stages to achieve sustainable change: (1)
precontemplation, (2) contemplation, (3) preparation, (4) action, (5)
maintenance, and (6) termination.32 In the “precontemplation” period, the
31. James O. Prochaska & Carlo C. DiClemente, Transtheoretical Therapy: Toward a More
Integrative Model of Change, 19 PSYCHOTHERAPY: THEORY RES. & PRAC. 276, 282–85 (1982)
(identifying four stages of the process of change, as well as the preceding and following stages of
precontemplation and termination). The main stages were initially identified as contemplation,
determination, action, and maintenance. Later, the researchers renamed “determination” as
“preparation.” See, e.g., James O. Prochaska et al., Stages of Change and Decisional Balance for 12
Problem Behaviors, 13 HEALTH PSYCHOL. 39, 40 (1994); see also James O Prochaska & John C.
Norcross, Stages of Change, 38 PSYCHOTHERAPY: THEORY RES. PRAC. TRAINING 443, 443–44 (2001)
(defining all six stages).
32. Id. This model is known as the “transtheoretical” or “stages of change” model. See James O.
Prochaska & Carlo C. DiClemente, The Stages and Processes of Self-Change in Smoking: Towards an
Integrative Model of Change, 51 J. CONSULTING & CLIN. PSYCHOL. 390, 391, 393 (1983) (confirming
that “[b]ecause precontemplators tend to be defensive and avoid changing their thinking and
behavior,” those smokers placed in the precontemplation stage (no intention to quit smoking within
one year) “used the processes of change . . . less than subjects in any other stage”). Not all public-health
scholars accept the model proposed by Prochaska and others. See, e.g., Robert West, Time for a
Change: Putting the Transtheoretical (Stages of Change) Model to Rest, 100 ADDICTION 1036, 1036–39
(2005) (arguing that the transtheoretical model arbitrarily classifies persons in particular stages of
change, fails to account for many forces and motivations that generate different behaviors, especially
addiction, as well as reward and punishment, and is unable to make substantial predictions “beyond
those that could be made from common sense”); Robert West, The Transtheoretical Model of
Behaviour Change and the Scientific Method, 101 ADDICTION 774, 774–78 (2006) (“There appears to be
no evidence that tailoring brief opportunistic advice to stop smoking to stage of change is more
effective than simply advising all-comers to stop and offering them treatment to help.”). But see James
19_CONNER & JORDAN_FINAL.DOC 9/18/2009 11:03:57 AM
240 LAW AND CONTEMPORARY PROBLEMS [Vol. 72:233
person has formed no intention to change and either does not recognize or is in
denial about the existence of a problem. In the “contemplation” phase, the
person becomes aware of the problem and considers whether to attempt
change. “Preparation” includes the person’s taking baby steps toward a change;
“action” is her making substantial and overt behavioral changes.
“Maintenance” is incorporating the new behavior and making efforts to prevent
relapse. “Termination” signals the completed adoption of the change. In real
life, unlike the model, the process is not necessarily linear, and frequent
backsliding is the norm.
Applying this model to group conflict, a robust apology is an “action” that
will not occur until a leader has moved from precontemplation through
contemplation and preparation. In the Jordan–Israel example, King Hussein
had been personally involved in negotiations with Israelis over several years,33
and he had personal relationships with key Israeli leaders.34 Indeed, the war-like
rhetoric leading up to the border incident may actually have represented a
relapse into old patterns. In contrast, in the months leading up to the Thomas
incident in Cincinnati, Mayor Luken had been involved in a heated and highly
personal dispute with civil-rights leaders over alleged racial profiling and misuse
of force by the Cincinnati police.35 Luken (and, it might be added, his critics)
appeared to be stalled in the precontemplation stage.
B. Cognitive and Emotional Resistance
Designating an apology an “action” preceded by many smaller steps does
not explain why so few leaders make the effort to apologize. Adapting to new
circumstances is one of the core skills of a political leader. Social psychology
literature suggests a partial answer: leaders caught in group conflicts
unconsciously screen out, invalidate, counterattack, or forget information
inconsistent with their established attitudes36 about the conflict and the other.
O. Prochaska, Moving Beyond the Transtheoretical Mode, 101 ADDICTION 768, 768–74 (2006)
(responding to West’s principal criticisms and defending the transtheoretical model as applicable to
entire populations and especially essential for studying and serving individuals who are unmotivated to
change their behavior, which traditional models of behavior change avoided).
33. Deborah Sontag, Death of a King: In Jerusalem, N.Y. TIMES, Feb. 8, 1999, at A13 (recounting
that prior to the 1994 peace treaty, King Hussein was involved in secret negotiations with Yitzhak
Rabin and other Israeli leaders).
34. The Rabin Funeral; Words of Respect, Love, NEWSDAY, Nov. 7, 1995, at A21 (quoting excerpts
from King Hussein’s eulogy at the funeral of Israeli Prime Minister Yitzhak Rabin, grieving “the loss of
a brother, a colleague and a friend”).
35. Jane Prendergast, ACLU Aids Protest of Profiling, CINCINNATI ENQUIRER, Nov. 21, 2000, at
1B (noting that “trust is gone” for “many in the African-American community”); Jane Prendergast &
Marie McCain, ACLU Weighs Suit on Profiling, CINCINNATI ENQUIRER, Jan. 31, 2001, at 2B
(“[L]eaders of the community action group Cincinnati Black United Front said discussion with
Cincinnati police had done little to solve the problem.”). Less than one month before the Timothy
Thomas incident, a group of black civil-rights groups and ACLU attorneys filed a federal complaint
that alleged racially discriminatory police practices by the Cincinnati police force. See In re Cincinnati
Policing, 209 F.R.D. 395, 397 (S.D. Ohio 2002).
36. Attitude is defined in social psychology as “a psychological tendency that is expressed by
evaluating a particular entity with some degree of favor or disfavor.” Alice H. Eagly & Shelly Chaiken,
19_CONNER & JORDAN_FINAL.DOC 9/18/2009 11:03:57 AM
Spring 2009] NEVER BEING ABLE TO SAY YOU’RE SORRY 241
An attitude is composed of an associative neural network among thoughts,
images, and feelings associated with a person, place, group, issue, or idea, and a
position of like–dislike, for–against.37 These neural connections become stronger
when continually reinforced by new encounters with information and other
people.38 Particularly strong and resistant to change are attitudes with ego
involvement or linkage to self-defining reference groups,39 as well as attitudes
formed from salient or searing emotional experiences that have made us who
we are.40 Social psychologists agree that the stronger the attitude, the more it
tends to resist change: “Both high theory and common sense converge to say
that a strong attitude is one that will endure, will resist attempts at persuasion in
contrary directions, will exert influence on the formation of related perceptions
and beliefs, and—perhaps most important—will predict behavioral decisions
with highest fidelity.”41
The annealing fire of conflict magnifies and strengthens the link between a
group narrative and personal identity.42 The narrative of a group regarding the
THE PSYCHOLOGY OF ATTITUDES 1 (1993); see also Dolores Albarracín et al., Attitudes: Introduction
and Scope, in THE HANDBOOK OF ATTITUDES 3, 4 (Dolores Albarracín et al. eds., 2005) (referring to
this definition of “attitude” as “the most conventional contemporary definition”). As a term of art in
this field, the term “attitude” is distinct from “belief.” “Beliefs are cognitions [thoughts] about the
probability that an object or event is associated with a given attribute.” Id. at 3. An attitude can be
formed based upon a belief, an emotion, or a past behavior with regard to a particular person, group,
idea, issue, or object. See id. at 3–5.
37. DREW WESTEN, THE POLITICAL BRAIN: THE ROLE OF EMOTION IN DECIDING THE FATE OF
THE NATION 3, 52, 83–87, 264 (2007) (noting that the concept of frames used by political psychologists
is similar); Dan Cassino et al., Information and Public Opinion, 48 POLITISCHE
VIERTELJAHRESSCHRIFT 205, 207–09 (2007) (F.R.G.) (describing the associative-network model of
understanding human memory of information, entities, emotions, and attitudes). Alternatively, social
psychologists have envisioned a connectionist-network model, which can be analogized to a computer
screen. A single pixel has no assigned meaning in and of itself; however, numerous pixels are activated
in distinct patterns to represent an entity. See, e.g., Frederica R. Conrey & Eliot R. Smith, Attitude
Representation: Attitudes as Patterns in a Distributed, Connectionist Representational System, 25 SOC.
COGNITION 718, 718–20 (2007) (“A distributed, connectionist network processes information in the
form of flows of activation across the connections between the units. Each unit receives input over
incoming connections from other units, and integrates those signals to determine its own activation at
the next moment in time.”).
38. Cassino et al., supra note 37 at 208–09 (describing how the level of activation of nodes in
tandem spreads “automatically and quickly” upon receiving new information from environmental
stimulation, such as reading about a particular subject); see also Robert C. Malenka & Roger A. Nicoll,
Long-Term Potentiation—A Decade of Progress?, 285 SCIENCE 1870, 1870 (1999) (“[R]epetitive
activation of excitatory synapses in the hippocampus, a brain region long known to be essential for
learning and memory, cause[s] an increase in synaptic strength . . . known as long-term potentiation. . . .
[S]trong activation of one set of synapses can facilitate [long-term potentiation] at an independent set
of adjacent synapses on the same cell if both sets of synapses are activated within a finite temporal
window.”).
39. Alice H. Eagly & Shelly Chaiken, Attitude Structure and Function, in T
HE HANDBOOK OF
SOCIAL PSYCHOLOGY 269, 289 (Daniel T. Gilbert et al., 4th ed. 1998).
40. Wendy Wood et al., Working Knowledge and Attitude Strength: An Information-Processing
Analysis, in A
TTITUDE STRENGTH: ANTECEDENTS AND CONSEQUENCES 283, 290–91 (Richard E.
Petty & Jon A. Krosnick eds., 1995) (describing how attitude strength increases when a high degree of
affect is associated with the attitude object, such as with “the highly pitched emotional arguments
associated with abortion”).
41. Phillip E. Converse, Foreword to ATTITUDE STRENGTH, supra note 40, at xi.
42. ROTHMAN, supra note 16, at 5–8.
19_CONNER & JORDAN_FINAL.DOC 9/18/2009 11:03:57 AM
242 LAW AND CONTEMPORARY PROBLEMS [Vol. 72:233
conflict, like other hierarchical belief structures or ideologies, triggers a “top-
down” cognitive process in shaping the formation of related attitudes toward
each new event, issue, or person.43 These attitude structures become a part of
the leader’s, as well as the group members’, self-concept. Leaders maintain and
disseminate the group narrative among the members, and new members are
socialized to the beliefs about the conflict and about the other side. The more
embedded in an overarching belief structure an attitude is, the more deeply a
person will resist a change in any position or attitude that might have a ripple
effect of forcing a reassessment in one’s entire belief system.44
Powerful unconscious psychological mechanisms are at work to preserve the
stability of the self-concept. Resistance to change of attitudes can take the form
of selective cognitive processes such as selective exposure and attention, biased
assimilation, and selective memory. First, people seek out and pay attention to
information that supports attitudes to which they are strongly committed; and
they screen out and ignore incongruent information. For example, despite the
effort required to avoid the bombardment of news coverage on such an event as
Watergate, Nixon supporters selectively avoided learning about the hearings
that posed a powerful challenge to their beliefs about him.45
In a protracted conflict, each side develops its own channels for distribution
of its own worldview, and members of a group do not seek out the other side’s
sources.46 The current media environment, where each side of the political
divide has its own television channels, radio stations, and websites, has the
effect of a de facto selective avoidance in that people are rarely exposed to both
sides of the issue unless they actively seek out sources on both sides.
Once a person’s attention is engaged, the rational expectation is that a
careful examination of conflicting evidence and arguments will result in the
weakening of a polarized position. A person receiving information or data
inconsistent with a strongly held attitude, however, will not process this
incoming information impartially. Such biased assimilation, a second cognitive
process contributing to one’s resistance to change, is illustrated in a classic study
43. See Daniel Bar-Tal, From Intractable Conflict Through Conflict Resolution to Reconciliation:
Psychological Analysis, 21 POL. PSYCHOL. 351, 354 (2000) (“Leaders and mass media form beliefs to
explain the causes of the conflict, its nature, and its solution to group members. Cultural, educational,
social, and political mechanisms are mobilized to impart these beliefs to society members and maintain
them during the conflict.”).
44. Eagly & Chaiken, supra note 39, at 289.
45. Paul D. Sweeney & Kathy L. Gruber, Selective Exposure: Voter Information Preferences and
the Watergate Affair, 46 J. PERSONALITY & SOC. PSYCHOL. 1208, 1208–16 (1984) (documenting how
study participants identified as “Nixon supporters” reported less interest, attention, and knowledge
regarding the Watergate affair and were more inclined to agree that Nixon had not lost credibility and
should remain in office than those persons designated as “McGovern supporters” or “undecided” in the
same study).
46. Charles S. Taber & Milton Lodge, Motivated Skepticism in the Evaluation of Political Beliefs,
50 AM. J. POL. SCI. 755, 763–764 (2006) (finding participants were more likely to search for and to read
the arguments of a sympathetic issue group than to search out the arguments of the opposing groups).
19_CONNER & JORDAN_FINAL.DOC 9/18/2009 11:03:57 AM
Spring 2009] NEVER BEING ABLE TO SAY YOU’RE SORRY 243
performed at Stanford University in 1979.47 When presented with purportedly
equally valid empirical studies on the deterrent effect of the death penalty,
students automatically accepted the validity of the study that favored their
preexisting positions, while deconstructing and attacking the methods of the
opposing study.48 In fact, reading the opposing study not only failed to convince
the students to moderate or to change their positions, but the students became
even more convinced that their preexisting position was correct.49 These effects
of biased assimilation and increased polarization operate in group conflicts to
aggravate antagonism because neither side can understand why the other
refuses to see reality.50
Selective memory is yet another cognitive process occurring below the
consciousness radar to resist change in an established attitude or opinion. A
more recent study found that participants whose position on the issue of capital
punishment was deeply embedded into their self-concept, value system, and
knowledge structure tended to recall more of studies and newspaper articles
supporting their position than of those in opposition.51 This study and other
progeny of the Stanford study, though, focus exclusively on the psychology of
cognitive processes, presenting biased assimilation as a purely cognitive
phenomenon, with little emphasis on the influences of emotions.52
47. See Charles G. Lord et al., Biased Assimilation and Attitude Polarization: The Effects of Prior
Theories on Subsequently Considered Evidence, 37 J. PERSONALITY & SOC. PSYCHOL. 2098, 2098
(1979) (“People who hold strong opinions on complex social issues are likely to examine relevant
empirical evidence in a biased manner.”). Many researchers have confirmed the effect of biased
assimilation with different forms of information presented on myriad issues. See, e.g., Geoffrey D.
Munro et al., Biased Assimilation of Sociopolitical Arguments: Evaluating the 1996 U.S. Presidential
Debate, 24 BASIC & APPLIED SOC. PSYCHOL. 15, 16 (2002) (collecting replications of the 1979 Lord et
al. study). In addition, the Munro study found viewers of the first 1996 U.S. presidential debate rated
the arguments made by their predebate favored candidates more highly than arguments disconfirming
their predebate attitudes about their favored candidate. Id. at 24. However, social psychologists
continue to debate the implications and validity of these studies. See, e.g., Eva M. Pomerantz et al.,
Attitude Strength and Resistance Processes, 69 J. PERSONALITY & SOC. PSYCHOL. 408, 408 n.1 (1995)
(“[W]e prefer not to use this term [biased assimilation] as it implies biased cognitive-processing of
attitude-relevant information, and such processing has heretofore never been empirically demonstrated
to accompany the judgment effect.”).
48. Lord et al., supra note 47, at 2101–02. The researchers in this 1979 study controlled for
potential differences arising from the order in which the competing empirical studies on deterrence
were presented to proponents and opponents of the death penalty by giving half of each group of
students the “prodeterrence” study first, while the other half of each student group received the
“antideterrence” study first. Id. at 2100.
49. Id. at 2104–06.
50. See ROTHMAN, supra note 16, at 26 (“The self-perceptions and attributions of opponents are
often diametrically opposed.”).
51. See Pomerantz et al., supra note 47, at 412 (“Embeddedness” was measured by “[p]articipants’
self-reports of how central their attitude [was] to their self-concept, . . . how representative of their
values their attitude [was], and how knowledgeable they [were] on the topic.”).
52. See Munro et al., supra note 47, at 17 (stating that the 1979 study conducted by Lord et al.,
though consistent with the research of its time, overlooked the role of emotion by focusing only on the
cognitive nature of biased assimilation). See generally Robert B. Zajonc, Emotions, in HANDBOOK OF
SOCIAL PSYCHOLOGY, supra note 39, at 591, 594–96 (observing that this was the first time a chapter on
emotions was included in the Handbook and that the topic of emotions was “neglected for decades”).
19_CONNER & JORDAN_FINAL.DOC 9/18/2009 11:03:57 AM
244 LAW AND CONTEMPORARY PROBLEMS [Vol. 72:233
Yet recent research has found that these selective-processing processes are
driven by emotions of which people are unaware.53 Heightened emotional
involvement with a position increases motivation for biased processing.54 The
more-informed or politically savvy person is actually more susceptible to the
biases because he possesses a greater store of knowledge with which to attack
the incoming challenge.55 None of these selective processes is used intentionally
to block out the viewpoint of the other side, even though people usually
attribute intentionality to each other in a dispute.56 Emotions run highest in
protracted group conflicts. Each side believes it is right; each has invested much
cognitive energy into developing and maintaining its perspective on the conflict,
the needs it has, and the goals for which it strives.57
Advancements in neuroimaging technology now provide a window into the
actual neural processes behind these screening phenomena. With this
technology, Antonio Damasio discovered that emotional systems previously
thought to be inoperative during “rational” thought have been shown to
actively aid and participate in decisionmaking.58 Using a neuroimaging study of
neural processes, recent research has confirmed the underlying emotional
involvement in judging political candidates’ inconsistent statements.59 When
politically active participants were confronted with a set of blatantly
contradictory statements by their favored candidate in an election, the
53. See Taber & Lodge, supra note 46, at 757 (“[P]eople are largely unaware of the power of their
priors.”); Cassino et al., supra note 37, at 215 (discussing studies that found unconscious and automatic
underpinnings of thought to be more indicative of physiological measures of racism than conscious and
explicit attitudes).
54. See Munro et al., supra note 47, at 25 (noting that the participants’ analyses of debate
arguments hinged on the participants’ affective responses to the presidential candidates).
55. See Taber & Lodge, supra note 46, at 763–65 (finding that students with more political-science
knowledge chose to consider arguments on divisive political issues from sympathetic sources more than
seventy percent of the time); Pomerantz et al., supra note 47, at 408 (collecting studies that show
greater knowledge about an issue is correlated with greater attitude polarization and a greater
resistance to change positions); see also Wood et al., supra note 40, at 283, 284 (“Knowledgeable people
with strong attitudes are careful, expert processors of new information, but their processing is biased to
bolster and protect their favored attitude position.”).
56. See ROTHMAN, supra note 16, at 26–27 (arguing that parties in conflict “perpetuate blame” by
attributing the actions of their adversaries to “a “fundamental aspect of their character” so that the
other side is seen as “innately hostile”).
57. Paul A. Sabatier, Policy Change over a Decade or More, in POLICY CHANGE AND LEARNING:
AN ADVOCACY COALITION APPROACH 13, 33 (Paul Sabatier & Hank C. Jenkins-Smith eds., 1993).
58. See ANTONIO R. DAMASIO, DESCARTES’ ERROR: EMOTION, REASON, AND THE HUMAN
BRAIN xvii (1994) (“[C]ertain aspects of the process of emotion and feeling are indispensable for
rationality. . . . [H]uman reason depends on several brain systems, working in concert across many
levels of neuronal organization, rather than on a single brain center. Both ‘high-level’ and ‘low-level’
brain regions, from the prefrontal cortices to the hypothalamus and brain stem, cooperate in the
making of reason.”); Rose McDermott, The Feeling of Rationality: The Meaning of Neuroscientific
Advances for Political Science, 2 PERSP. ON POL. 691, 693–94 (2004) (summarizing the Damasio study).
59. See Drew Westen et al., Neural Bases of Motivated Reasoning: An fMRI Study of Emotional
Constraints on Partisan Political Judgment in the 2004 U.S. Presidential Election, 18 J. COGNITIVE
NEUROSCIENCE 1947, 1947–55 (2006) (evaluating how people reason to political judgments by
measuring the neural activity of strongly partisan supporters of presidential candidates when presented
with statements appearing detrimental to their chosen candidate and then presented with
corresponding and seemingly exculpatory statements that explain away the apparent inconsistency).
19_CONNER & JORDAN_FINAL.DOC 9/18/2009 11:03:57 AM
Spring 2009] NEVER BEING ABLE TO SAY YOU’RE SORRY 245
participants minimized their distress by quickly “rationalizing” away the
inconsistencies, but not through the “rational” or “cold-reasoning” part of the
brain (dorsolateral prefrontal cortex).60 Active instead were areas of the brain
devoted to emotional appraisal, suppression of negative emotional stimuli,
judgments of forgivability, and emotionally laden moral judgments. This
process took place so quickly that the participants were not even aware of it.
And, not only did the participants minimize the obvious discrepancies, but their
“reward circuits” became activated as they did so.61 This study added the insight
that defending against information that challenges people’s settled position
actually makes them feel good.
This research helps to explain why leaders in group conflicts remain in a
precontemplation phase. Even in the face of overwhelming evidence, leaders
rarely apologize because their conception of “reality” is that they have done the
lesser wrong and that it is the other side that should apologize. Assuming a
leader is able to contemplate an apology, at least one further hurdle remains.
Organizational-development specialist William Bridges argues that change is
accompanied by a process of psychological “transition” that involves letting go
of the familiar (“ending”) and enduring a period of ambiguity (“neutral zone”)
before the person can comfortably behave in a different way (“new
beginning”).62 Even if change is plainly needed, endings generate sadness,
resentment, anger, and anxiety, which combine to create a sort of emotional
drag to delay or even sabotage the will to act.63 The neutral-zone period holds
both the potential for creative solutions and the danger of regression—even a
bad situation can look better than an uncertain future.64 In the new beginning,
people are accustomed to the new reality, new habits, and changed attitudes.65
Bridges distinguishes between changes imposed by external forces, such as
the loss of a loved one, and those authored by individuals on their own volition,
such as acknowledging an addiction or changing careers. In the latter case he
60. Id. at 1955.
61. Id. at 1956.
62. WILLIAM BRIDGES, MANAGING TRANSITIONS: MAKING THE MOST OF CHANGE 4–5 (2d ed.
2003). Bridges drew from Arnold van Gennep’s work on rites of passage in anthropology, id. at 56, as
well as from Elisabeth Kübler-Ross’s grief-stages model in psychotherapy. See ARNOLD VAN GENNEP,
THE RITES OF PASSAGE 10–11 (Monika B. Vizedom & Gabrielle L. Caffee trans., Univ. of Chi. Press
1960) (1909); ELISABETH KÜBLER-ROSS, ON DEATH AND DYING (1969) (identifying the five stages of
handling grief as denial and isolation, anger, bargaining, depression, and acceptance). In his
introduction to The Rites of Passage, Solon Kimball notes that “rites of passage” may have been more
properly translated as “rites of transition.” Solon T. Kimball, Introduction to THE RITES OF PASSAGE,
supra, at v, vii. Discussing territorial passages, van Gennep noted that European countries in the past
were surrounded by a strip of neutral ground that he referred to as a “neutral zone.” Though such areas
of “no man’s land” have gradually disappeared, the term “letter of marquee” retains the definition of
“a permit to pass from one territory to another through a neutral zone.” VAN GENNEP, supra, at 17–18.
Bridges adopted the term “neutral zone,” even though emotions during the time of transition are
anything but neutral.
63. BRIDGES, supra note 62, at 28–30, 140.
64. Id. at 39–43.
65. Id. at 5, 58.
19_CONNER & JORDAN_FINAL.DOC 9/18/2009 11:03:57 AM
246 LAW AND CONTEMPORARY PROBLEMS [Vol. 72:233
argues that a “developmental transition” precedes the changed behavior.66
Applying this framework, an apology must be preceded by a developmental
transition requiring the leader to relinquish, at least to some degree, a
comfortable narrative that characterizes the conflict as good (us) versus evil
(them). The Bridges framework helps to explain why people, leaders included,
fail to act even after the logic of change becomes overwhelming.
Change can and does occur, of course, and people do move from
contemplation and preparation to action. Social scientists hypothesize that upon
the accumulation of numerous bits of disconfirming information over a period
of time, an established attitude may be gradually undermined by the strength
and volume of evidence to the contrary.67 Or, in the alternative, an event or a
reframing of the issue can trigger a shift to an entirely different neural
associative network and cause a reevaluation of the attitude or belief.68 In any
event, a significant change of heart about the other side will require a leader to
make a considerable effort to become aware of and to resist cognitive processes
and emotional attachments that powerfully and persistently blind her from
seeing their point of view.
C. Influences from Within the Leader’s Group
Leaders are also subject to pressures from within their own groups, which
compounds their propensity to resist change. Group norms prevent leaders, as
well as group members, from considering or acting on ideas or information that
contradict the group’s important beliefs. When there is strong social influence
on a person regarding a particular group standard, she will resist change more
strongly the further she is asked to depart from it; and only if the group
standard is changed will this resistance be eliminated.69
The Bridges framework represents a modern application of one of the
earliest social-psychological models of group change developed by Kurt Lewin
in 1951 as part of his “field theory.”70 Lewin argued that a group necessarily
66. WILLIAM BRIDGES, THE WAY OF TRANSITION 4–5 (2001); see also Prochaska & DiClemente,
supra note 31, at 282–84; Prochaska & DiClemente, supra note 32, at 393–94 (arguing that addicts must
pass through precontemplation, contemplation, and preparation before an action can be expected).
67. See Alice H. Eagly & Shelly Chaiken, Attitude Strength, Attitude Structure, and Resistance to
Change, in A
TTITUDE STRENGTH, supra note 40, at 413, 427 (“[M]assive inputs would be
recommended to those interested in changing attitudes . . . especially inputs that span the range . . .
from cognitive through affective through behavioral.”); Hank C. Jenkins-Smith & Paul A. Sabatier, The
Dynamics of Policy-Oriented Learning, in POLICY CHANGE AND LEARNING, supra note 57, at 41–42
(stipulating that the accumulation of technical information over a long period of time may gradually
change the central elements of an advocacy coalition’s belief system).
68. WESTEN, supra note 37, at 264.
69. KURT LEWIN, FIELD THEORY IN SOCIAL SCIENCE: SELECTED THEORETICAL PAPERS 225–28,
231, 234 (Dorwin Cartwright ed., 1951).
70. See generally Shelley E. Taylor, The Social Being in Social Psychology, in H
ANDBOOK OF
SOCIAL PSYCHOLOGY, supra note 39, at 58, 60 (describing Lewin’s field theory as “a quasi-
mathematical model of forces in the field designed to predict behavior and behavior change in response
to changes in various environmental forces”). Lewin borrowed terminology from force-field physics to
describe individual’s actions as well as group dynamics.
19_CONNER & JORDAN_FINAL.DOC 9/18/2009 11:03:57 AM
Spring 2009] NEVER BEING ABLE TO SAY YOU’RE SORRY 247
passes through three stages in order for a change to be sustained. The first stage
he called “unfreezing”—overcoming inertia and dismantling the existing “mind
set.”71 Lewin observed that a catharsis might be needed to remove these
prejudices: “To break open the shell of complacency and self-righteousness it is
sometimes necessary to bring about deliberately an emotional stir-up.”72 The
second stage toward change is a period of confusion, a moving to a new level.73
The third and final stage is “freezing group life on the new level.”74 In the third
stage, the new mindset stabilizes and the group’s comfort level returns to
previous levels.75 Lewin observes that a group’s reaching the next level is not as
important as its staying there:
A change toward a higher level of group performance is frequently short-lived; after a
“shot in the arm,” group life soon returns to the previous level. This indicates that it
does not suffice to define the objective of a planned change in group performance as
the reaching of a different level. Permanency of the new level, or permanency for a
desired period, should be included in the objective. . . . Since any level is determined
by a force field, permanency implies that the new force field is made relatively secure
against change.76
Bridges would add to the Lewin framework the caveat that the individuals
in the group will move through the stages of change at different speeds. His
term for this phenomenon is the “marathon effect.”77 Like the fastest runners in
a marathon, the leaders are in the winners’ tent about the time the majority of
the crowd is just getting started.78
It is easy for U.S. citizens to see and criticize the operation of group norms
in distant conflicts between Arabs and Israelis, Turks and Armenians, or Shiites
and Sunnis. Group dynamics also cause resistance to change closer to home.
Political scientist Paul Sabatier has studied a number of U.S. policy disputes,
including those over air pollution, water policy, and land use.79 He found that
sustained public-policy disputes spawn “advocacy coalitions,” nonhierarchical
collections of individuals, informal groups, and organizations held together by a
complex system of shared beliefs, values, and attitudes.80 For example, the pro-
choice and pro-life advocacy coalitions in the United States involve huge
numbers of Americans who are tied together by nothing more formal than
sharing values, perceptions of causal relationships, and world views on abortion.
71. Id. at 229.
72. Id.
73. Id. at 228–29.
74. Id. at 228, 231.
75. Id. at 231.
76. Id. at 228–29.
77. BRIDGES, supra note 62, at 65.
78. Id. at 65–66.
79. See Jenkins-Smith & Sabatier, supra note 67, at 41–45; Paul A. Sabatier & Hank C. Jenkins-
Smith, The Advocacy Coalition Framework: An Assessment, in THEORIES OF THE POLICY PROCESS
117, 126 (Paul A. Sabatier ed., 1999) (listing studies by researchers in the United States and other
countries that tested the advocacy coalition framework in a variety of policy domains, including
education, national defense, telecommunications, drugs, infrastructure, and gender discrimination).
80. Sabatier, supra note 57, at 25–27.
19_CONNER & JORDAN_FINAL.DOC 9/18/2009 11:03:57 AM
248 LAW AND CONTEMPORARY PROBLEMS [Vol. 72:233
Members of advocacy coalitions strongly resist “information suggesting that
their basic beliefs may be invalid or unattainable, and they will use formal
policy analyses primarily to buttress and elaborate those beliefs (or attack their
opponents’ views).”81 Any proposition that challenges one of the core beliefs,
values, or attitudes behind an advocacy coalition will be perceived as an
existential threat of attack. Over time, the rhetorical exchanges in the media
and in fundraising appeals “tend to transform opponents from responsible
adversaries into people with extreme and dangerous views,”82 a process Sabatier
calls “the devil shift.”83
When a leader has moved beyond the devil shift and is able to humanize the
other side, he may face strong resistance from the members of his group who
have not been able to even begin to contemplate such a change. This “marathon
effect” can have serious consequences. For example, the experience of the
leader of the British group League Against Cruel Sports (LACS) is instructive.
Executive Director Jim Barrington won media attention for LACS with clever
and sometimes vicious attacks on prominent people—especially members of the
Royal Family—for participating in “blood sports.” After engaging in dialogue
and negotiations with leaders from the opposition, he conceded to a reporter
that it was “worthwhile talking to the hunting fraternity,” many of whom were
actually “respectable” people.84 Regional and local LACS leaders—his natural
competitors within the group—immediately assailed him for “bringing (the
league) into disrepute, seriously disconcerting its friends [and] providing
comfort to its enemies.”85
After Barrington was forced out, a thoughtful editorial in the Times of
London opined that his fate was a warning of sorts to leaders who represent
their members with “strident, uncompromising” tactics.86 For leaders to publicly
shift their view “inflicts . . . a mortal blow . . . to the morale of fellow
campaigners. They expect to change the minds and laws of society; they do not
expect society to change their own views.”87 Interestingly, Barrington’s successor,
81. Id. at 19.
82. Paul Sabatier et al., The Devil Shift: Perceptions and Misperceptions of Opponents, 40 W. POL.
Q. 449, 452 (1987). One of the co-authors of this article argued that advocates who perceive themselves
as dealing with enemies tend to over-utilize coercive “push” strategies and view cooperative “pull”
strategies as naïve, useless or even dangerous. Roger L. Conner, Strategy and Stance: A Framework for
Understanding Public Advocacy 8–13 (Vanderbilt Univ. Law Sch., Discussion Paper No. 110501, Nov.
20, 2005), available at http://ssrn.com/abstract=862244. He refers to this resulting cycle of attack and
defense as the “Advocacy Trap.” Id. at 13.
83. Sabatier, supra note 82, at 450 (“[A]ctors perceive opponents to be stronger and more ‘evil’
than they actually are.”).
84. Michael Hornsby, Anti-Hunt Chief Hails Sport’s Tradition, TIMES (London), Nov. 3, 1995, at 5.
85. Michael Hornsby, Wildlife Activists Step up Pressure on League Head, TIMES (London), Nov.
22, 1995, at 7.
86. Lead Article, No Blinkers; Praise for the Cruel Sports Man Who Changed His Mind, TIMES
(London), Nov. 22, 1995, at 19.
87. Id.
19_CONNER & JORDAN_FINAL.DOC 9/18/2009 11:03:57 AM
Spring 2009] NEVER BEING ABLE TO SAY YOU’RE SORRY 249
Graham Sirl, was also replaced after moderating his views,88 leading to the
installation of a new chair who describes her approach to advocacy as
“impatient, intolerant, judgmental, tactless . . . [a]nd if you don’t do it my way,
by God you’ll be sorry.”89
These examples of the marathon effect suggest that powerful group norms
keep leaders in the precontemplation stage and make it risky to move through
contemplation to planning and action. Assuming that a leader navigates these
obstacles, a further hurdle remains: the same individual- and group processes
are operating on the other side to prevent them from changing and offering
forbearance or forgiveness in response.
IV
WHY AND HOW APOLOGY WORKS: THE POWER OF AN ARCHETYPAL
NARRATIVE AND SYMBOLIC RITUALS
As several contributors to this symposium have noted, apology has unique,
almost mystical power.90 Notwithstanding all of the obstacles cited above, some
apologies appear to cause a sudden and uncontrollable change in emotional
states and attitudes toward the offender.
Human-rights theorist Danielle Celermajer suggests that apology works by
triggering recognition of an “archetypal narrative,” which she calls the
“redemptive sequence”: transgression, repentance or apology, forgiveness,
reconciliation, redemption.91 This archetypical narrative “has long
functioned . . . in both religious and personal relationships.”92 When properly
reenacted, it lessens feelings of anger and desires for revenge, diminishes
88. Graham Sirl was forced out after concluding that hunting had a valid purpose in game
management in limited circumstances, though he remained opposed to most hunting practices. David
Hencke & Rob Evans, Animal Welfare Groups Under Fire, GUARDIAN (London), June 29, 2001, at 8.
89. David Edwards, I’ll Be Victor in the Fight for Animal Rights and You’d Better Believe It;
Annette Crosbie in Her Most Important Role, MIRROR (London), Jan. 10, 2003, at 48.
90. See, e.g., Rev. Dr. Kenneth R. Downes, A Reflection and Response to Using Criminal
Punishment to Serve Both Victim and Social Needs, 72 LAW & CONTEMP. PROBS. 227 (Spring 2009);
E. Franklin Dukes, Truth, Understanding, and Repair, 72 LAW & CONTEMP. PROBS. 57 (Spring 2009);
Alphonse A. Gerhardstein, Can Effective Apology Emerge through Litigation?, 72 LAW & CONTEMP.
PROBS. 271 (Spring 2009); John O. Haley, Comment on Using Criminal Punishment to Serve Both
Victim and Social Needs, 72 LAW & CONTEMP. PROBS. 219 (Spring 2009); Erin Ann O’Hara & Maria
Mayo Robbins, Using Criminal Punishment to Serve Both Victim and Social Needs, 72 LAW &
CONTEMP. PROBS. 199 (Spring 2009); Brent T. White, Saving Face: The Benefits of Not Saying I’m
Sorry, 72 LAW & CONTEMP. PROBS. 261 (Spring 2009); Douglas H. Yarn & Gregory Todd Jones, A
Biological Approach to Understanding Resistance to Apology, Forgiveness, and Reconciliation in Group
Conflict, 72 LAW & CONTEMP. PROBS. 63 (Spring 2009); see also NICHOLAS TAVUCHIS, MEA CULPA:
A SOCIOLOGY OF APOLOGY & RECONCILIATION 5 (1991) (“[A]n apology, no matter how sincere or
effective, does not and cannot undo what has been done. And yet, in a mysterious way and according to
its own logic, this is precisely what it manages to do.”).
91. Celermajer, supra note 18, at 2. Celermajer discusses the work of philosopher and Talmudic
commentator Emmanuel Levinas (1906–1995) on apology and transformation, and extends it to the
political apology, for example, that given by nations to an oppressed group.
92. Id.
19_CONNER & JORDAN_FINAL.DOC 9/18/2009 11:03:57 AM
250 LAW AND CONTEMPORARY PROBLEMS [Vol. 72:233
motivation to remain estranged from the violator, and increases feelings of
goodwill and desire for conciliation, notwithstanding the hurtful actions.93
Whence does this inchoate knowledge arise? Students of evolutionary
biology point to the importance of intragroup cooperation in prehistory.94
Developing the “emotional framework necessary for the effective use of
apology and forgiveness” placed members of a group “at a competitive
advantage” over individuals forced to “invest both material and psychological
resources into non-productive activities” associated with retaliation and
defense.95 Theologians, in contrast, point to the divine and suggest that apology
triggers forgiveness because it is a reenactment of the forgiveness represented
by God’s grace in the face of our own misdeeds.96 It is not necessary to choose
among these explanations to acknowledge that, to paraphrase Justice Potter
Stewart, “We know a good apology when we see it,”97 and we respond
unconsciously, almost against our will.
Celermajer describes the contours of this archetypal narrative by first
explaining what it is not: an erasure of the history that aggravates the past injury
by attempting to silence and oppress the victims. Instead, pointing to a
metaphor utilized to encapsulate the South African Truth and Reconciliation
process, Celermajer explains, “‘[W]e must read the page before we can turn
it.’“98 Celermajer asks rhetorically,
When we turn the page do we take its contents with us as we proceed to write the rest
of the book? Or do we dream of a virgin sheet, untainted by the violations of the past?
[Are] . . . the words of an apology functioning like the final wax seal stamped with care
to terminate any dialogue with the past?99
Rather than to erase the history, the effective apology acknowledges it and
communicates that the speaker has experienced a lasting change of heart.
93. See Michael E. McCullough et al., Interpersonal Forgiving in Close Relationships, 73 J.
PERSONALITY & SOC. PSYCHOL. 321, 321–22, 333–34 (1997). We are indebted to McCullough et al., for
the understanding that forgiveness is not a step function, but movement in three dimensions—desire for
retaliation, separation, and empathy—that are measurable, distinctive, and independent of one
another. See also Michael E. McCullough et al., Forgiveness, Forbearance, and Time: The Temporal
Unfolding of Transgression-Related Interpersonal Motivations, 84 J. PERSONALITY & SOC. PSYCHOL.
540, 540, 554 (2003) (finding that peoples’ desires for retaliation and separation decrease significantly
over time even though their motivation for benevolence does not appear to increase significantly over
that same time period).
94. See Erin O’Hara & Doug Yarn, On Apology and Consilience, 77 WASH. L. REV. 1121, 1153–59
(2002) (arguing that the capacity for cooperation among humans developed because those who worked
well in groups survived at higher rates).
95. Id. at 1156–57.
96. For example, according to Christians, Jesus taught his disciples to ask God for forgiveness of
their personal wrongdoing in these words: “Forgive us our trespasses, as we forgive those who trespass
against us.” Matthew 6:12.
97. See Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring). In this concurrence,
Justice Potter Stewart famously attempted to explain the meaning of “hard-core” pornography or
obscenity by saying, “I shall not today attempt further to define the kinds of material I understand to be
embraced . . . [b]ut I know it when I see it.” Id. at 197 (emphasis added).
98. Celermajer, supra note 18, at 4 (paraphrasing ALEX BORAINE, A COUNTRY UNMASKED 5
(2000)). Boraine was deputy chair of the South African Truth and Reconciliation Commission.
99. Id.
19_CONNER & JORDAN_FINAL.DOC 9/18/2009 11:03:57 AM
Spring 2009] NEVER BEING ABLE TO SAY YOU’RE SORRY 251
In the act of speaking the apology, the person is acknowledging that she is the (same)
person who committed the wrong. . . . Yet her act of apology[,] . . . aligning herself
with concern for and recognition of the experience of the wronged other[,] bespeaks in
the present another identity, bringing into being a person who is no longer simply the
one who committed the wrongful act.100
It is this expression of a change in the speaker’s identity that provides the
spiritual alchemy that breaks the chain of causation and allows a new
relationship to come into being.101
One implication of Celermajer’s work is the importance of ritual to effective
apology. One way in which ritual is important is its potential effect on the
apology-maker. The leader must undergo an internal developmental transition
prior to changing, and so prior to making an apology. Bridges argues that
developmental changes are necessarily preceded by “disidentification”—a
loosening of the old identity, in part, to make way for the new.102
Anthropologists have long known that “rites of passage” and other public
rituals facilitate the multiple transitions needed when a person within a group
sheds one identity for another.103 Bridges agrees that culturally appropriate
rituals can be transformative, dramatically accelerating an inner transition.104 It
may be that a ritualized reenactment of the redemptive narrative can generate
the very change of heart within the speaker for which the listeners long.105
Whether or not ritual benefits the speaker, it is crucially important for the
listener. To bypass such cognitive processes as selective exposure and attention,
biased assimilation, and selective memory, and to trigger a shift to the
associative neural network that holds the archetypal narrative plainly requires
more than mere words. Traditional societies relied on rites. For example, a
youth was separated from the tribe for a time in a puberty ritual, in part to
accelerate the individual’s change in identity and in part to create a void for the
acceptance of the new creation in the eyes of the community.106 Just as ancient
100. Id. at 7.
101. Id. at 7, 12. Benjamin Ho offers a more prosaic explanation—a mathematical formula
suggesting that it is rational for an actor to accept an apology to the extent that it “acts as a signal of the
apologizer’s fitness for future interaction.” Benjamin Ho, Apologies as Signals: With Evidence from a
Trust Game 39 (Cornell Univ., Johnson Sch. Res. Paper Series 2007), available at
http://ssrn.com/abstract=944161.
102. WILLIAM BRIDGES, TRANSITIONS: MAKING SENSE OF LIFE’S CHANGES 115–18 (2d ed. 2004);
see also BRIDGES, supra note 66, at 7–8 (2001) (“[I]n rites of passage people were taught important
elements of what the tribe viewed as ‘reality,’ but . . . this learning also required unlearning the
‘realities’ they had been taught at an earlier point in their lives.”).
103. See, e.g., VAN GENNEP, supra note 62.
104. BRIDGES, supra note 102, at 140 (“These ‘tools’ were once provided by the tribal elders in the
form of instruction and ritual, but today we must fashion our own tools.”).
105. Not all scholars who study apology accept the characterization of apologetic acts as “rites of
passage.” Nicholas Tavuchis, for example, agrees that apology is a “secular ritual,” but he distinguishes
apology from a rite of passage, in that “[t]he crucial concern of an apology is not with new rights and
obligations associated with a change in social status,” but with a restoration of the previolation status
quo. Tavuchis, supra note 90, at viii, 31.
106. BRIDGES, supra note 102, at 102 (describing how the effort to erase the past identity was
sometimes quite dramatic, such as a “mortuary ritual” in which the burning of the child’s sleeping mat
might be used to dramatize that “[t]he person he used to be is dead”).
19_CONNER & JORDAN_FINAL.DOC 9/18/2009 11:03:57 AM
252 LAW AND CONTEMPORARY PROBLEMS [Vol. 72:233
rituals separated the newly recognized adult from the child who had played in
their midst, the proper symbolic acts may separate the apology-maker from the
person who was previously despised for countenancing injurious and unjust
acts.
The language of ritual and symbols is even more important in group
conflicts than in dyadic disputes because most of the intended audience cannot
be physically present to hear what is said.107 For example, in 1970 German
Chancellor Willy Brandt visited Poland to dedicate a memorial to thousands of
Jews who had been slaughtered in the Warsaw Ghetto by German soldiers. On
this occasion, with dignitaries and relatives of the lost looking on, Brandt
walked up to the memorial alone and fell to his knees in silence.108 “His
actions . . . came more from the heart and the gut than from any studious
intellectual conviction,”109 one journalist wrote. As Brandt later explained, “On
the abyss of German history and carrying the burden of the millions who were
murdered, I did what people do when words fail them.”110 The resulting image
had an electrifying effect, assuring a war-weary world that the new government
represented a fundamental break with Germany’s past.111
King Hussein’s apology to the families of the Israeli schoolgirls killed by the
Jordanian gunman similarly reflects this element of ritual. King Hussein had a
number of options for the appropriate ritual. He might have issued a statement
to be read by a representative at a press conference or met the parents at some
neutral setting. He might have invited them to his ornate throne room or
perhaps to the more intimate setting of the private quarters of his official
residence. Instead, he traveled to their small, politically conservative border
town accompanied by his son, his daughter, Israeli Prime Minister Benjamin
Netanyahu, and a bevy of reporters and television cameras, to visit the parents
in their own homes. As he entered each dwelling, he knelt before the parents,
he extended his hand, he offered words of regret, and he did so without any
effort at self-defense or justification. Thanks to the accompanying television
107. See Deborah L. Levi, Note, The Role of Apology in Mediation, 72 N.Y.U. L. REV. 1165, 1178
(1997) (arguing that the required gestures of an apology must be filled with meaning in order to be
transformative).
108. See Facing History & Ourselves, Willy Brandt’s Silent Apology, available at
http://www.facinghistory.org/Campus/Memorials.nsf/0/DC396F572BD4D99F85256FA80055E9B1 (last
visited Jan. 8, 2009) (images of Brandt kneeling before the Warsaw Ghetto Memorial).
109. Tyler Marshall, Willy Brandt, Post WWII German Statesman, Dies, L.A. TIMES, Oct. 9, 1992, at
A1.
110. See John Borneman, Can Apologies Contribute to the Peace? An Argument for Retribution, 17
ANTHRO. E. EUR. REV. 7, 9 (1999) (quoting WILLY BRANDT, ERINNERUNGEN: MIT DEN NOTIZEN
ZUM FALL G 214 (John Borneman trans. 1999) (1994)), available at http://condor.depaul.edu/~rrotenbe
/aeer/v17n1/Borneman.pdf.
111. James O. Jackson, A Bold Peacemaker: Willy Brandt: 1913–1992, TIME, Oct. 19, 1992, at 55
(noting that the achievements of Brandt’s lifetime were “symbolized by the somber drama of a man on
his knees . . . a gesture that electrified the world.”). Time had named Brandt “Man of the Year” in 1970,
declaring Brandt’s act a “turning point in the history of Europe—and of the world.” On the Road to a
New Reality, TIME, Jan. 4, 1971, available at http://www.time.com/time/magazine/article/0,9171,
942376,00.html.
19_CONNER & JORDAN_FINAL.DOC 9/18/2009 11:03:57 AM
Spring 2009] NEVER BEING ABLE TO SAY YOU’RE SORRY 253
cameras, the visual image of a Jordanian King kneeling before an Israeli citizen
created a narrative into which people far removed from the scene could project
their deepest longings.112
V
IMPLICATIONS FOR ONGOING GROUP CONFLICTS
This article began with a question: If an effective apology is such a powerful
tool for leaders involved in group conflicts, why does it happen so infrequently?
It appears that an effective apology in a public dispute requires a leader to
experience a change of heart toward the other side and the conflict and to
perform a ritualized public-speech act which expresses this change with words
and symbols. Yet leaders, like the rest of us, are prevented from perceiving the
need to change by subconscious processes that screen out and discredit the
needed information. Even if they can escape these forces, they are deterred
from acting by internal psychological resistance and by external political threats
to their survival.
This section discusses three implications of the foregoing analysis for
leaders, peacemakers, and scholars interested in apology as an instrument to
advance justice, prevent destructive conflict, and promote cooperation. First, an
effective apology is likely to occur only after other changes have “softened up”
negative attitudes between the groups—referred to here as “ripeness.” Second,
even with a degree of ripeness, apology is unlikely without a “window of
opportunity,” a confluence of circumstances that permits the leader to limit the
scope of the apology so as not to concede too much. Third, even if these
conditions are satisfied, words alone are not enough for an apology to be
effective.
A. Ripeness
Scholars in the field of conflict resolution have long established that no
single tool or strategy is appropriate to all conflicts all of the time.113 In conflict
resolution, “ripeness” denotes a situation that has evolved to the point that a
particular intervention has a chance to work. For example, a conflict is said to
be ripe for negotiation when the parties have reached a “mutually hurting
stalemate.”114
112. See Schmemann, supra note 8 (“Israelis appeared to be deeply moved as they followed live
broadcasts of the King’s visit.”).
113. See, e.g., GARY T. FURLONG, THE CONFLICT RESOLUTION TOOLBOX, MODELS AND MAPS
FOR DIAGNOSING AND RESOLVING CONFLICT 11 (2005) (“There is no magic formula that resolves all
disputes.”). Furlong, for example, identifies eight different conflict-resolution models that practitioners
can use to diagnose and resolve a wide range of conflict situations that arise. Id. at 19–24 (providing an
overview of these eight models).
114. See, e.g., I. WILLIAM ZARTMAN & MAUREEN R. BERMAN, THE PRACTICAL NEGOTIATOR 66–
78 (1982) (labeling nuclear disarmament as a stalemate since it requires joint action and the parties
repeatedly tell each other that the “situation will both voluntarily and automatically get worse for both”
without mutual arms control); INTERNATIONAL MEDIATION IN THEORY AND PRACTICE 7, 13, 251,
19_CONNER & JORDAN_FINAL.DOC 9/18/2009 11:03:57 AM
254 LAW AND CONTEMPORARY PROBLEMS [Vol. 72:233
Applying the concept of ripeness here, an individual leader cannot be
expected to spring from precontemplation to action without many smaller steps
in between. Unless a transition from hostile attitudes allows the leader to come
to see the other group as something other than devils, external calls for apology
have the same effect as demands for relinquishment of ill-gotten gains or
compensation for the alleged wrongdoing. However frustrating it may be to
those who see the need for an apology, so long as an individual leader or
leadership group is caught up in precontemplation or denial, he cannot make
the shift in perspective that is at the heart of an effective apology.
Furthermore, even if a leader on one side is able to contemplate a significant
change, an apologetic act is unlikely to work absent some softening of attitudes
from the other side. It is not necessary for adversaries to arrive at a complete
and mutual understanding; however, it is necessary for them to achieve a
certain “analytic empathy,” which recognizes that “our opponents may act out
of motivations as complex and multidimensional as our own,” and that their
behavior is “reactively motivated” rather than “due to innate character flaws.”115
Conflict-resolution scholars and practitioners have developed a massive tool kit
to help members of competing groups discover common ground while
understanding their differences, believing that many small-scale, incremental
steps prepare the way for more-dramatic changes at the right time.116
Sabatier argues that advocacy coalitions can absorb new information and
learn but the process takes time.117 One source of new information is
“spillovers” from other arenas that can force reconsideration of well-settled
assumptions. For example, the bipartisan support for energy independence in
the 1970s forced considerable changes in the advocacy coalitions involved in
clean-air policy and utilities regulation.118 A second source of group learning is
dramatic external events such as the Arab Oil Embargo of 1973–1974 or the
September 11, 2001, attacks on the World Trade Center. Finally, unexpected
258–60 (Saadia Touval & I. William Zartman eds., 1985) (“One of the most important sources of
leverage is found in the ripe moment of intolerable stalemate weighing on each party, threatening a
worse outcome in the future while offering no present way out of the deadlock.”).
115. ROTHMAN, supra note 16, at 44.
116. Search for Common Ground is an international, nonprofit organization dedicated to
transforming “the way the world deals with conflict” by moving conflict situations “away from
adversarial approaches, toward cooperative solutions.” Search for Common Ground, Our Mission &
Vision, http://www.sfcg.org/sfcg /sfcg_mission.html (last visited Jan. 8, 2009). With a presence in
seventeen countries, Common Ground has employed a variety of techniques and small-scale projects
known as its “toolbox” (for example, deployed options range from radio soap operas and TV
documentaries to athletic contests and musical productions) that can set the stage for leaders to depart
from entrenched patterns in conflict resolution. Search for Common Ground, Our Toolbox,
http://www.sfcg.org/sfcg/sfcg_toolbox.html (last visited Jan. 8, 2009). One of the coauthors of this article
is the former Executive Director of U.S. Programs for Common Ground. See also WILLIAM URY, THE
THIRD SIDE: WHY WE FIGHT AND HOW WE CAN STOP 115–206 (2000) (suggesting a myriad of
techniques to prevent, resolve, and contain serious conflicts).
117. See Sabatier, supra note 57, at 19–20 (noting how changes in “socioeconomic conditions” or the
“rise of a new systemic governing coalition” can affect an advocacy coalition’s belief system over time
along with policy-oriented learning).
118. Id. at 23.
19_CONNER & JORDAN_FINAL.DOC 9/18/2009 11:03:57 AM
Spring 2009] NEVER BEING ABLE TO SAY YOU’RE SORRY 255
changes in governing elites or the leadership of the groups themselves can force
changes in assumptions. The Republican takeover of the Presidency and the
Senate in 1980, for example, triggered widespread adjustments by advocacy
coalitions on many issues.
The examples of King Hussein and Mayor Luken illustrate the need for
ripeness and the inadvisability of expecting benefits from premature apology.
Hussein and other Jordanians had been in direct negotiations for years leading
up to the Camp David Accords, and Israeli attitudes toward Hussein had been
deeply affected by his emotional eulogy at the funeral of Prime Minister
Yitzhak Rabin.119 Hussein’s apology and Israeli’s acceptance built on the change
already accomplished and under way.
In contrast, in the months leading up to the Timothy Thomas killing, Mayor
Luken feuded publicly with civil-rights groups over alleged racism in the city as
a whole and in the police department in particular.120 A sudden change of heart
on the part of Luken or his critics would have been tantamount to an alcoholic
moving from denial to a lifetime of sobriety overnight. Even though the
situation was not ripe for an apology, the plaintiffs in the lawsuit correctly
predicted that negotiation was possible. After an elaborate process of public
participation involving over 3500 residents, the feuding parties, including Mayor
Luken, the president of the local police union, and local civil-rights leaders,
signed what is known locally as the Collaborative Agreement—a
comprehensive plan to change police practices and transform Cincinnati police–
community relations—which became a federal-court-approved settlement to a
pending, federal-civil-rights case against Cincinnati.121 However, in subsequent
years Mayor Luken and the president of the local police union sought
unsuccessfully for the consent decree to be lifted.122 Today, both officials have
been replaced via elections with backers of the Collaborative Agreement and
civic leaders from across the political spectrum agreeing that significant
progress has been made in police practices and in neighborhood problem-
solving.123
In contrast with dyadic disputes, in group conflicts, it may be that apology
comes nearer the end of the process of reconciliation than the beginning. This is
119. Schmemann, supra note 8.
120. Prendergast, supra note 35 (Civil-rights leaders stated, “We need to really bring about some
systemic change” due to “a pattern of fatal incidents involving officers and African-Americans.”).
121. For a full description of the data gathering, public participation, negotiation, and content
regarding the Collaborative Agreement, see Jay Rothman, Collaboratively Addressing Police–
Community Conflict in Cincinnati, Ohio, 22 OHIO J. ON DISP. RESOL. 105, 105–32 (2006). Rothman was
assigned by a federal district judge to serve as special master in structuring, guiding, and overseeing the
collaborative process that resulted in the signing of the Collaborative Agreement.
122. Gerhardstein, supra note 90, at 274–75 (referencing the denied motion for dismissal filed by the
city and the police union).
123. See, e.g., Editorial, Police Reforms, End or Beginning, CINCINNATI ENQUIRER, Apr. 15, 2007,
at 2E; Dan Horn, Police Reform at 90%, CINCINNATI ENQUIRER, Oct. 14, 2006, at 1B (“Saul Green,
the court-appointed monitor who oversees the deal . . . declares the police department in compliance
with 73 of the 81 provisions in the agreement.”).
19_CONNER & JORDAN_FINAL.DOC 9/18/2009 11:03:57 AM
256 LAW AND CONTEMPORARY PROBLEMS [Vol. 72:233
not meant to discourage those who long for the transformative power of a
robust apology. But acknowledging the need for ripeness before apology may
be akin to accepting a pilot’s decision to fly around a thunderhead even if it
makes the plane “late.”
B. Windows of Opportunity
No leader can appear to confess error of his group’s entire position and
survive politically. Yet an apology for a specific act of wrongdoing can be
perceived as such because group conflicts are unbounded tangles of
interconnected grievances.124 For this reason, ripeness alone is insufficient unless
the leader can draw a boundary around a discrete piece of the broader conflict
to limit the scope of the apology.
One way that a window of opportunity opens is an unexpected occurrence
or event which captures public attention and creates a mini-drama. Natural
disasters, serious confrontations, or extreme acts of violence often have this
effect. Hussein was able to isolate the border incident from other areas of
disagreement and to make an unqualified apology for the death of the Israeli
schoolchildren without appearing to abandon or qualify his positions on Jewish
settlements, the Palestinian “right of return,” or the status of Jerusalem.
Importantly, Israeli Prime Minister Benjamin Netanyahu apparently saw
benefits from allowing Hussein to frame the event in this way.125 In contrast,
Mayor Luken’s critics immediately argued that Timothy Thomas’s death was
part of a pattern of police misconduct, making it difficult for the mayor to
apologize for police conduct in Thomas’s case without conceding the entire
argument to his critics.126 Windows of opportunity created by events can be
fleeting. Once a leader has asserted a defense or justification, apology requires
a confession of error—something politicians are universally loath to do.127
A leadership change is another way to limit the scope of an apology. For
example, a city manager settled a racial-profiling case by agreeing to a written,
124. See ROTHMAN, supra note 16, at 10–11 (noting the distinctive characteristics of identity conflict
as rooted in “existential and underlying psychocultural concerns” that make identity-based conflicts
“very complex, relatively intangible, and often hard to define clearly”).
125. Schmemann, supra note 8 (“At the news conference, Mr. Netanyahu argued against making
[the border incident] or any one issue into a focus of confrontation. ‘I think it’s a mistake to try to
create an end-all and be-all on one issue.’”).
126. Luken had publicly pledged to correct problems with police use of force in 1999. Perry
Brothers, Mayor: Policies to Be Reviewed, CINCINNATI ENQUIRER, Dec. 21, 1999, at 1A.
127. Recent research shows that political leaders who apologize and reverse their positions are seen
as weak, even by voters who agree that the original position was wrong. See Larissa Z. Tiedens, Anger
and Advancement Versus Sadness and Subjugation: The Effect of Negative Emotion Expressions on
Social Status Conferral, 80 J. PERSONALITY & SOC. PSYCHOL. 86, 87–90 (2001) (finding that
participants in a study conferred more power and status on President Clinton as a political leader when
he responded to grand-jury testimony regarding the Monica Lewinsky affair with anger rather than
sadness, even though the participants later believed Clinton would be “best served by expressing
sadness rather than anger”).
19_CONNER & JORDAN_FINAL.DOC 9/18/2009 11:03:57 AM
Spring 2009] NEVER BEING ABLE TO SAY YOU’RE SORRY 257
public apology to be disclosed in open court.128 Because the city manager was
relatively new, his apology amounted to a declaration about the future rather
than a confession that he had condoned or overlooked racism in the police
department in the past. Because of the lawsuit, the city manager could also
defend against internal criticism as necessary to prevent an even heavier blow
to the city’s reputation and finances.
The passage of time is another way for a window of opportunity to develop.
On issues such as slavery and segregation, in which responsibility for the wrong
is widely shared, ascension to power by a new generation makes it safer for the
new leaders to apologize without a revolt from line workers or key
constituencies. For example, President Bill Clinton apologized for the National
Health Service’s notorious Tuskegee Syphilis experiment twenty-five years
after it was concluded, well after the key figures associated with the project had
retired or died.129
C. The Symbolic Communication
Although ripeness and a window of opportunity are necessary preconditions
for a leader to consider making an apology, effectiveness is measured by how
others react. Much of the existing scholarship on apology focuses almost
exclusively on language and logic,130 but words alone are not enough if
forbearance and forgiveness depend on recognition of an archetypal narrative.
An effective apology appears to require some form of appropriate ritual through
a symbolic, public-speech act that flies below the radar of the cognitive defenses
sustaining bitter hostility.
This observation raises more questions than it answers. Different rituals
signal that an apology is being delivered for different cultural groups.131 In the
United States, common rituals include televised statements by public officials as
128. Gerhardstein, supra note 90, at 274–76; see also Sue Kiesewetter, Fairfield to Analyze One Year
of Police Stops, CINCINNATI ENQUIRER, May 1, 2007, at 1b.
129. Cesar Chelala, Clinton Apologises to the Survivors of Tuskegee, 349 LANCET 1529, 1529 (1997)
(“President Clinton’s apology, on May 16, for harm done to participants of the now infamous Tuskegee
Study has been greeted with relief and gratitude by the experiment’s survivors and their families.”).
Some scholars suggest that Clinton’s apology was insufficient to overcome African Americans’ mistrust
of medical research. See, e.g., Heather J. Carmack et al., Narrative Constructions of Health Care Issues
and Policies: The Case of President Clinton’s Apology-by-Proxy for the Tuskegee Syphilis Experiment,
29 J. MED. HUMAN. 89, 96–103 (2008) (deeming Clinton’s national apology an “incomplete rhetorical
act” primarily because the public discourse following the speech focused on the nation’s guilt rather
than policy proposals and actions that will generate a material change in “reconciling mainstream
medicine and minority communities”).
130. See, e.g., AARON LAZARE, ON APOLOGY 303 (2004) (sole entry in index is to “ritual
apologies,” which are sham apologies or ritualistic gestures devoid of sincere intentions); PINCHAS H.
PELI, SOLOVEITCHIK ON REPENTANCE: THE THOUGHT AND ORAL DISCOURSES OF RABBI JOSEPH
B. SOLOVEITCHIK 91–92 (1984) (“Feelings, emotions, thoughts and ideas become clear and are grasped
only after they are expressed in sentences bearing a logical and grammatical structure. . . . Repentance
contemplated, and not verbalized, is valueless.”) (emphasis added).
131. See KEVIN AVRUCH, CULTURE & CONFLICT RESOLUTION 57–72 (1998) (arguing that
communication between groups in conflict is always distorted by cultural differences that cause
different meanings to be attached to words and gestures).
19_CONNER & JORDAN_FINAL.DOC 9/18/2009 11:03:57 AM
258 LAW AND CONTEMPORARY PROBLEMS [Vol. 72:233
well as public introspection involving the disclosure of extremely personal
matters. In contrast, in Japan, specific rituals are required.132 After a U.S.
submarine collided with and sank a Japanese fishing boat, U.S. officials
attempted multiple U.S.-style apologies to no avail. The Japanese were
unmoved by a presidential letter, official visits from the U.S. Ambassador and
the Admiral of the Fleet,133 and an anguished editorial in Time by the
submarine’s commander, Scott Waddle.134 Waddle “should get on his knees and
bow his head to the floor,” insisted one of the victims’ fathers.135 Not even
Waddle’s determination to take the witness stand in a military court of inquiry
against the advice of counsel and tearfully accept sole responsibility for the
accident was sufficient: “Kazuo Nakata, father of one of the Japanese lost on
the sunken boat [,] sat each day at the inquiry filled with anger, until he met
Waddle face to face and accepted his apologies . . . ‘He bowed to me, and a tear
fell to the floor. In that moment we were two human beings.’”136
The importance of ritual offers an explanation for the value victims
sometimes attach to public apologies in civil-rights litigation.137 Even when
coerced, as by plaintiffs’ insistence on public statements that acknowledge
wrongdoing and express some form of regret, these statements are culturally
appropriate rituals conveying a message that the future is expected to be
different from the past, and that message can apparently be conveyed
separately from the state of mind of the person who writes or recites the
words.138
D. Remaining Questions and Future Directions
This article is largely conceptual. Because no effort has been made to test
the analysis against a comprehensive list of historical events, an obvious
question is whether the suggested conditions for an effective apology in group
conflicts—ripeness, a window of opportunity, and appropriate ritual—are
consistent with past experience. Even if so, is it useful only post hoc, or could it
help people make better choices in active disputes? Does the suggested model
explain the absence of apology in situations that leave outsiders shaking their
heads in disbelief? (The Armenian genocide comes to mind.) How much
“softening up” needs to occur for conditions to be ripe for an apology, and how
132. See Haley, supra note 90; see also LAZARE, supra note 130, at 31–34, 210–13 (contrasting the
American and Japanese approaches to “apology” as rooted in profound linguistic and cultural
differences between the two societies); TAVUCHIS, supra note 90, 37–43 (referring to Japan as the
“apologetic society par excellence”).
133. David J. Jefferson, Searching the Depths, NEWSWEEK, Feb. 26, 2001, at 44; Rowan
Scarborough, Navy to Probe 4th Sub Officer, WASH. TIMES, Feb. 24, 2001, at A1.
134. Scott Waddle & Terry McCarthy, I Was Begging God, TIME, Mar. 12, 2001, at 52 (“I will make
apologies in person when the opportunity presents itself. If I have to get in a rowboat and row to Japan,
that is what I will do.”).
135. Jefferson, supra note 133, at 44.
136. Terry McCarthy, The Right Thing to Do, TIME, Apr. 2, 2001, at 29 (emphasis added).
137. See White, supra note 90; Gerhardstein, supra note 90.
138. Ho, supra note 101, at 22–24, 36–37, 39–41.
19_CONNER & JORDAN_FINAL.DOC 9/18/2009 11:03:57 AM
Spring 2009] NEVER BEING ABLE TO SAY YOU’RE SORRY 259
would advisors to a leader sense when the time was ripe? What factors open a
window of opportunity, and what does it look like at the time? Can such a
window be precipitated deliberately or must leaders await developments
beyond their control? Finally, leaders and practitioners might benefit from
more scholarly attention to symbols and rituals that allow an apology to be
heard, especially when the different groups involved do not share the same
cultural heritage.
VI
CONCLUSION
Articles on apology and forgiveness tend to be grounded in real disputes in
which serious wrongs have been committed and the blameworthiness of the
parties is not symmetrical. One implication of this article is the need for scholars
to develop a more nuanced view of leaders whose groups are responsible for
wrongful acts. An effective apology by a leader in a group conflict requires a
personal, internal journey through loss and ambiguity (ambiguity enhanced,
perhaps, through their followers’ expectations of public displays of certainty)
followed by a public act that can entail enormous personal and political risks.139
No one, scholars included, is exempt from selective cognitive processing,
groupthink, or resistance to transition. Perceiving that “everything bad they do
against us is innate and characteristic; [but] everything we do against them is
reactive and situational”140 is as tempting for scholars as it is for people caught
up in a conflict.
This is not to imply that opposing groups are always equally blameworthy
(for they are not), nor to suggest the suspension of judgment regarding a
particular conflict, whether it is slavery in the nineteenth century or ecosystem
destruction in the twenty-first century. Rather, it is to argue that scholars need
to practice “project[ing] [themselves] into the circumstances in which [leaders]
operate,”141 what Adam Smith calls “sympathy”142 and what has more recently
139. Willy Brandt was criticized by many Germans for his gesture at the Warsaw memorial. John
Borneman, Public Apologies as Performative Redress, 25 SAIS REVIEW 53, 55 (2005) (“Back home in
Bonn, some critics attacked Brandt’s Kniefall, claiming it was exaggerated. . . . To some Germans,
Brandt’s apologetic gesture on behalf of all Germans recalled his wartime resistance and suggested
disloyalty to the German cause.”). Anwar Sadat’s decision to go public with his shift away from total
hostility to Israel cost him his life. See, e.g., Jonathan C. Randal, Arabs Celebrating Sadat’s Death Saw
Him as a Double-Dealer, WASH. POST, Oct. 8, 1981, at A25 (noting the “lack of a display of compassion
for the fallen leader” and the “outpourings of hatred” from many in the Arab states who saw his
willingness to negotiate as a “betrayal”).
140. ROTHMAN, supra note 16, at 44.
141. Nir Eisikovits, Forget Forgiveness: On the Benefits of Sympathy for Political Reconciliation, 105
THEORIA 31, 39 (2004).
142. For an explanation of the importance of David Hume’s differing concept of “sympathy” to
apology and forgiveness (defined as “a ‘principle of communication’ which allows us to feel what those
around us feel”), see id. at 40–41.
19_CONNER & JORDAN_FINAL.DOC 9/18/2009 11:03:57 AM
260 LAW AND CONTEMPORARY PROBLEMS [Vol. 72:233
been termed “analytic empathy,”143 especially as it applies to those who are
powerful and wrong. Otherwise, scholars risk unwittingly violating a maxim that
applies as much to scholarship as to medicine: First, do no harm.
143. ROTHMAN, supra note 16, at 44. “Although we can never come to see the world as our
adversaries do, nor necessarily accept their assertions as correct, we can begin to understand their
viewpoints and assumptions as contextually legitimate.” Id. at 45.
