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Published Scholarships
Jonathan R. Cohen


Legislating Apology: The Pros and Cons,
70 University of Cincinnati Law Review 3 (forthcoming 2002).
Should apologies be admissible into evidence as proof of fault in civil cases? The past several years have seen a tremendous rise in "apology legislation" designed to exclude apologies from admissibility into evidence. For example, in 2000 and 2001, California and Florida respectively enacted laws barring apologetic expressions of sympathy ("I'm sorry that you are hurt") but not fault-admitting apologies ("I'm sorry that I injured you") after accidents from introduction into evidence as proof of fault. Other states are now debating proposed apology legislation, including bills that would exclude fault-admitting apologies from evidence. As apologies can be central elements in preventing and settling lawsuits, such legislation has the potential to dramatically affect dispute resolution and legal practice. Article examines policy arguments that can be made supporting and opposing such legislation and offers remaining questions for future research.

When People are the Means: Negotiating with Respect,
14 Georgetown Journal of Legal Ethics 739 (2001).
Most scholarship on negotiation ethics has focused upon the topics of deception and disclosure. Article argues for considering a related, but distinct, ethical domain within negotiation ethics. In contrast to most forms of human interaction, a clear purpose of negotiation is to get the other party to take an action on one’s behalf, or at least to explore that possibility. This gives rise to a core ethical tension in negotiation, object-subject tension: how does one reconcile the fact that the other party is a potential means to one’s ends with general ethical requirements for treating people? In response, I argue that there is a general moral duty to respect other people, a duty which is not overridden by the fact of negotiation. I examine the nature of this duty and its implications for both direct principal-to-principal negotiations and legal negotiations conducted indirectly through lawyers.

Apology and Organizations: Exploring an Example from Medical Practice,
27 Fordham Urban Law Journal 1447 (2000).
In 1987, the Veterans Affairs Medical Center in Lexington, KY, took a surprising ste: they decided that when they made a medical error they would truly “come clean” and fully assume responsibility for the error, including apologizing for it. Over the next decade, they went from being one of the highest to among the lowest net legal cost hospitals in the VA system. This paper uses that experience as a springboard for exploring the potential for the use of apology by organizations. Topics discussed include (1) the impact of apology on learning to prevent future errors; (2) divergent interests toward apology stemming from principal-agents tensions in employment, risk preferences, and sources of insurance; (3) non-pecuniary benefits of apology to corporate morale, productivity and reputation; (4) standing and scope when apologizing; and (5) the articulation of policies toward injuries to others.

Introduction to Negotiating on Behalf of Others, Robert H. Mnookin and Jonathan Cohen [Mnookin, Lawrence E. Susskind, and Pacey C. Foster, eds., 1- 20 (Sage 1999).]
Attorneys structuring settlements for clients . . . diplomats drafting treaties on behalf of governments . . . sports agents representing athletes . . . managers bargaining with union representatives. How could nations, companies, and unions negotiate if not through agents? At other times, a principal has the option of negotiating directly but elects to use an agent believing that will produce better results. How do agents affect negotiations? How should principals and agents act when negotiations involve agents? Purpose of book is to systematically explore the impact of agency on negotiation and how parties should respond to it.

Advising Clients to Apologize,
72 Southern California Law Review 1009 (1999).
Apology can be a key ingredient, if not the key ingredient, to resolving a dispute. Yet lawyers rarely discuss possibility with clients. Should lawyers discuss the possibility of apology with clients more often? Article examines some benefits and costs of apology to a client in civil cases and argues on its behalf. Also suggests factors to which lawyers should be sensitive and offers model apologies in several common legal disputes. Concludes by considering legal reforms concerning apology and some ethical aspects of advising clients to apologize.

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