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Copyright (c) 2001 Vanderbilt University
Vanderbilt Law Review

ARTICLE: Reciprocity, Utility, and the Law of Aggression

January, 2001

New York University Law Review

54 Vand. L. Rev. 1


Anita Bernstein *



The themes of incursion and boundary-crossing unite disparate legal domains. Wherever human beings cross paths and share space, law or law-like traditions develop to regulate this terrain by distinguishing permitted from proscribed intrusion. 1 Crimes and torts, regulation and liability, claims and defenses to claims, private law and public law all use a variety of measures--punishments, administrative rules, equitable remedies, professional discipline, and informal or extralegal sanctions--to condemn undue aggression. 2 Concern about aggression may be found in the law of every jurisdiction in the United States. 3

Within American law, an extra increment of aggression can amount to the only difference between condoned and condemned behavior. Panhandling, for instance, enjoys First Amendment protection, 4 but states may ban aggressive panhandling. 5 The crimes of harassment and stalking similarly identify aggression as that which makes tolerated conduct (call it courtship?) no longer tolerable. 6 Antitrust law exalts competition, 7 fully aware that human beings will suffer, and firms fail, in its name, while deeming predation bad enough to warrant a treble-damages civil penalty. 8 Employment law rests on the premise that labor is bought and sold in a market; 9 in southern California, cradle of American trends, some municipalities set a national example by making it illegal for workers to solicit employment from motorists. 10 The United Nations charter, which presumes--without condemnation--that nations pursue agendas that conflict with what other nations pursue, also declares that a country violates international law when it commits an act of aggression ...
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