Vanderbilt Law Review


Anita Bernstein

First Page



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.' 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. Concern about aggression may be found in the law of every jurisdiction in the United States.

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, but states may ban aggressive panhandling. The crimes of harassment and stalking similarly identify aggression as that which makes tolerated conduct (call it courtship?) no longer tolerable. Antitrust law exalts competition, 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. Employment law rests on the premise that labor is bought and sold in a market; in southern California, cradle of American trends, some municipalities set a national example by making it illegal for workers to solicit employment from motorists.' The United Nation 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." Many localities prohibit "solicitation" of prostitution, while tolerating exchanges of sex for money that do not contain the element of approach to a passive recipient. Lawyers are expected to work hard to garner new "business," but they must do so without explicit overtures to prospective clients: Professional authorities frown on advertising, and also discipline lawyers for solicitation, which is said to be "fraught with the possibility of undue influence, intimidation, and overreaching." Although attorney influence-some would go further aid substitute "client dependency"--is a sine qua non of the lawyer-client relationship, it must not reach a level that regulators will deem undue.

Elsewhere the same adjective separates permitted from proscribed conduct. In the name of undue influence, gratuitous transfers, especially wills, may be nulified; courts deem contracts voidable;' restitution becomes available to claimants. A similar notion of too much aggression pervades the contract doctrine of unconscionability. You may drive a hard bargain if you like, judges tell potential aggressors, but too hard a bargain might constitute what one court called "carrying a good joke too far."

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