Forced Apologies: Thinking about Ordinary, Restorative, and Transitional Justice

Posted in: Law Practice

Much attention has been paid to the recent sanctioning of the lawyers who submitted a brief rife with ChatGPT-induced citation errors. A lesser noticed aspect of this case is that in punishing attorneys Steven Schwartz and Peter LoDuca, Judge P. Kevin Castel declined to require them to apologize to the judges who were named as having authored fictitious opinions. Castel reasoned that “a compelled apology is not a sincere apology.” He instead left to the attorneys the decision of whether and how to apologize.

This case is not a one-off. Apologies often play an important role in domestic civil litigation. Many potential litigants are motivated by their desire for an apology. Many jurisdictions protect apologies from admissibility in hopes that this will free harm-doers to offer them. The topic of whether forced apologies are themselves a form of punishment or a violation of free speech is an evergreen one. Similar questions of when apologies are truly forced have also bedeviled formal and informal resolution processes, such as whether Yale Law School forced a student to apologize for a “trap house” email.

We found this apology aspect of the ChatGPT ruling interesting for a few reasons. But before diving into them, we find it helpful to have a working definition of apology. Apologies at their fullest are: (1) communications that (2) acknowledge any wrongdoing, (3) as well as the harm and its consequences, (4) take responsibility, (5) convey regret for having caused harm to those affected, (5) provide compensation or other efforts to restore those affected, and (6) promise non-repetition of the harm-causing behavior.

First, it is concerning that the judge thought the only relevant parties to an apology were the judges to whom the fictitious cases were assigned. Yes, the citations to non-existent cases treated the judges with insufficient respect by misattributing false holdings to them and violated the attorneys’ professional ethical obligations. But, of course, the failure to perform the requisite research and instead rely on ChatGPT was also a breach of their duty to their own clients, implicated the opposing party, and insulted the court to whom the lawyers submitted the brief. The apology literature notes the importance of recognizing the relevant harmed parties—directing apologies to the wrong or incomplete set of individuals inflicts its own distinct harms. (For those of you conversant with Scandoval, Tom Sandoval apologizing to his friend Tom Schwartz after deriding his own ex-girlfriend Ariana Madix for wearing a t-shirt during sex is a prime example of when apologizing to the wrong person inflicts an additional indignity.)

More important perhaps is the implicit assumption that a compelled apology has no value given its likely insincerity. Of course, ideal apologies communicate genuine remorse. Remorse is part of an ideal apology because it means the apology giver internalizes the harm done, recognizes the individuals to whom the apology is given as persons who ought not be harmed, and signals a higher likelihood of non-repetition. This helps explain why sentencing judges look for genuine remorse in allocutions, and why individuals who are asked to write the apologies they would like to receive use words like “sincerely” and “truly.” Research tells us that recipients are more likely to forgive those who proffer what they view as sincere apologies.

In addition, compelled apologies tend to be less fulsome. In other words, experimental studies find that forced apologizers are less likely to accept full responsibility and are less likely to show evidence of remorse than their voluntarily apologizing counterparts. And from another perspective, even children view compelled apologies as less sincere when holding constant the content of the apology.

But even if we were confident that we could distinguish sincerity from insincerity or remorse from indifference (which an emerging literature draws into question in the judicial field) AND confident that compelled apologies are necessarily insincere, compelled apologies can still do important work. First, as one of us has explained elsewhere, they still provide victims with an acknowledgment of the wrongdoing and its consequences. Victims might find some consolation in hearing the offender articulate that acknowledgment. For instance, one victim of discrimination who refused to settle his discrimination claim without an apology explained: “I know for a fact it won’t be sincere at this point. I just want them to acknowledge what they did was wrong. They may not believe it, but at least I could say I have it in writing that [they] admitted that what [they] did was wrong.” Requiring such acknowledgment can signal that the injured person is valued by the community and should be treated as such. The apology ritual might serve as a measure of punishment. Affirmation of the violated norms can also reinforce and signal the importance of those norms to victims, offenders, other lawyers, and the broader community.

While the court’s decision sanctioning the attorneys’ behavior was valuable in itself in acknowledging wrongdoing, there is independent value in having that message conveyed by the harmdoer as well. We believe this to be true even when the court forces the message. Why? Because the court is forcing this party to humble themselves and to acknowledge the victims’ standing before the law.

Perhaps this is also interesting because it is a potential example of where a judge’s intuitions are seemingly at odds with prevailing scholarly wisdom. While we’re not comfortable saying there’s a clear consensus on all aspects of forced apologies, a survey of the legal apologies literature suggests the vast majority of scholars believe that compelled apologies have at least some utility in some circumstances, with only a few aggressive naysayers. That perspective is borne out by legal claimants who will themselves often negotiate for apologies or demand ordered apologies—behavior that suggests they at least think that such apologies will serve some purpose. Research also finds that claimants have fairly similar reactions to demanded apologies, negotiated apologies, and spontaneous apologies.

The import of this extends well beyond domestic civil litigation. Criminal restorative justice programs sometimes require an offender’s willingness to apologize in order to be diverted from traditional criminal processes. Of course, this is a variation on the notion of forced apology in that offenders could choose the regular criminal process instead of apologizing. But this setting raises some of the same concerns about the authenticity and sincerity of the apology. The fact that this is a strategic choice that may entail an insincere apology doesn’t render it valueless. Even as empirical scholarship demonstrates that victims are more satisfied with the restorative justice process and feel more emotionally repaired when they believe offender apologies to be sincere, they still valued forced apologies as well.

That said, one setting in which we might particularly worry about insincere apologies is transitional justice. In ordinary justice settings—like the ChatGPT case—victims may have been wronged by the defendant, but they are presumed to live in a society that generally respects their standing and they can expect redress for legal wrongs from the courts. In contrast, in transitional justice settings, victims may have been harmed by the state or lack reason to think that the state would protect them from harm caused by others. The norms of everyday interactions are often dangerous and disrespectful. When trying to emerge from such conditions, acknowledgment of past wrongdoing and guarantees of non-repetition are essential pillars in moving societies forward. Apologies, from both the state and individuals, are a way to achieve those goals. In fact, many truth and reconciliation processes use individual acknowledgment of wrongdoing as a precondition to participation and to limiting punishment. Yet we see a similar belief among advocates that forced apologies in such settings are meaningless because of their lack of sincerity. Of course, forced apologies in lieu of any other reparation or justice can be counterproductive. Take, for instance, the Rwandan genocide. Rosemary Nagy has written about the profound injustice of how some gacaca processes provided no direct restitution to survivors of physical violence other than a forced apology. Yet we can imagine that, assuming other reparative efforts are in place, a forced apology has value in transitional justice because the state has forced the harmdoer to acknowledge wrongdoing and to recognize the victim’s suffering and what was lost. On the other hand, in a society in which the trajectory and commitments of the state are in doubt and there are deep concerns about rebuilding trust, forced apologies might also be more troubling. And we might have distinctive concerns about the state forcing speech in such a settling. But we have yet to find any comprehensive empirical studies focusing on the potential value of forced apologies in such settings (and if you know of any, please drop it in a tweet to @lesleywexler).

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