Conflict Resolution

Advanced Problem-Solving Strategies

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I used to think, back when I was a naive young law clerk, and even into my first few years of practice, that the legal system should provide a clear answer to most legal questions. If you were to read and research carefully any random motion, say for summary judgment, or listen to all the evidence and argument presented in any civil case, the vast majority of the time, the system should provide the same answer to each problem.  Especially for pure questions of law. If we’re not all getting the same answer, we probably just haven’t analyzed the problem carefully enough. I still think that predictability is an important ideal, but I no longer think the legal system will […]

In The Eumenides, Athena abolished the revenge cycle because that ancient justice system contained fundamental flaws that made it unsuitable for an enlightened democratic state.  Revenge does not achieve finality; it perpetuates violence; and it is mechanical and deterministic, thus denying free will.  In its place, Athena set up a new system that was supposed to be based on wisdom, truth, and rationality.  It continues to serve us well in many cases, but after more than 2000 years of our experiment with this more enlightened justice system, it might be time to ask whether it has finally has outlived its usefulness.  At the very least, we can probably all agree that our system of justice could stand some improvements. We […]

In The Eumenides, the final play of Aeschylus’s trilogy (see my two prior posts on the first two plays), Orestes has flown to Apollo’s temple, pursued by the hideous, disgusting Furies.  While they are sleeping, Apollo appears and tells Orestes to go to Athens and beg Athena for help (again from the Ted Hughes translation): There you shall be judged By men that I have appointed. And there, inspiring the tongue, I will free you. I commanded you to murder your mother. Now I shall draw, as in a lottery, From all your tossed-up days and nights, Deliverance from the crime. Orestes follows Apollo’s directions, and gets the chance to present his case to Athena, who immediately recognizes its complexity. This […]

We can trace our justice system back to Moses receiving the Ten Commandments, or Hammurabi’s Code (1700 BCE), if we wish. I’d prefer to start with Aeschylus’s Oresteia, from 458 BCE.  I decided to reread this ancient three part Greek tragedy about the origins of a new concept of justice, to see if it might shed some light on transitions that seem to be occurring in our modern legal system.  Readers might have to bear with me for a few blog posts before I reach that goal. In Agamemnon, the first play of the Oresteia trilogy, Aeschylus tells the story of Agamemnon’s homecoming and murder.  Agamemnon has been away for ten years fighting the Trojan War.  In the meantime, not […]

As he has done since the beginning of his campaign, Barack Obama likes to talk about a new kind of politics in which people sit at the same table and talk to one another instead of shaking their fists at one another. Here he is this week bragging about bringing together different players in both the energy debate and the health care debate. If these initiatives bear fruit, do they herald a new dominant mode of problem-solving? Does President Obama reject the whole idea of dialectics that has been so influential in political philosophy, in favor of more positively-reinforcing ways of achieving change? Can he really get the political system to work in this new way? The rise of mediation […]