San Diego Law Review

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This Article joins the current debate regarding the proper relationship between apology and the law. Like Rule 408, this Article focuses exclusively on civil cases. This Article adds to scholarly debates about apology and law by giving legal change a final push. Namely, this Article provides language, and a rationale for the language, that makes federal protection for “full apologies” in civil cases possible. In particular, this Article considers the aforementioned limitations of Rule 408 and provides a critique of its effectiveness in facilitating its modus operandi of encouraging private settlements between adversarial parties. Part II discusses apologies generally and considers the role they can play as a dispute resolution tool. Part III then proposes an amendment to Rule 408, which would prevent full apologies offered during compromise negotiations from being admissible in civil cases. The amendment to Rule 408 that this Article proposes also furthers the underlying policy priority of Rule 408 by encouraging private settlements. Part IV provides support for the proposed amendment to Rule 408 by examining empirical evidence that suggests this amendment would, in fact, do more to encourage private settlements between adversarial parties than Rule 408 currently does. Part V describes apology exclusionary rules that states have adopted and gauges the effectiveness of these exclusionary rules. Part VI addresses critiques of the fully protected apology, which assert that such an exclusionary rule is not only fraught with moral ambiguity, but rewards bad actors engaging in strategic tactics by offering insincere apologies, thereby allowing them to escape proper punishment. This section reconsiders the resistance to the fully protected apology and suggests that this resistance stems from two ideas—the propensity of U.S. law to quantify harm in economic terms, and the belief that the United States has a naturally litigious culture. These critiques miss the point, as studies suggest, that the fully protected apology is both good business and consistent with U.S. cultural values. Concluding Part VII offers final thoughts on this Article’s proposed amendment to Rule 408.

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