Faculty Bibliography

This essay represents Professor Mnookin's reflections on the organization of a symposium and accompanying issue of "Law and Contemporary Problems" around his 1975 article "Child-Custody Adjudication: Judicial Functions in the Face of Indeterminacy." His observations focus on two questions: Are the article’s two core themes—relating to the indeterminacy of the best-interests standard and differentiating child protection from private dispute resolution—still relevant? To what extent have changes in social norms, technology, and legal doctrine made my analysis unresponsive to contemporary challenges for custody law and policy?

Imagine you are the Prosecutor of the International Criminal Court. The year is 2014, and the war-weary Afghani people have struck a tentative deal to end their civil war. The deal contemplates amnesty for Mullah Omar and his deputies, many of whom have likely committed war crimes or crimes against humanity. As Prosecutor, you face a dilemma: Should you quietly accept the deal — or should you prosecute the Taliban, even though a prosecution risks jeopardizing the peace? Using that hypothetical as a frame, this essay explores how the ICC Prosecutor ought to balance competing considerations of peace and justice when deciding whether to initiate a criminal investigation or prosecution. The Prosecutor’s official policy position is that he cannot consider the interests of peace when deciding whether to prosecute suspected criminals. In other words, his decision whether to go after Mullah Omar must be made without considering how his acts will affect ongoing peace processes. This essay counters that it is both prudent and inevitable for the Prosecutor to consider the interests of peace. In a policy paper, the Prosecutor has ruled out the most natural method for considering the interests of peace, namely the Rome Statute’s Article 53 “Interests of Justice” provision. But there remain two other ways for the Prosecutor to take into account the interests of peace: first, through careful use of timing when initiating investigations and prosecutions; and second, through a process of proactive complementarity. This essay explains that on balance, delay and complementary are actually better vehicles to address the tension between peace and justice than Article 53’s Interests of Justice provision. The essay concludes by providing a set of practical guidelines the Prosecutor should follow when deciding when to prosecute, and when to defer. While the Prosecutor should not explicitly bargain with offenders or acknowledge the validity of blanket amnesty programs, he should delay investigations and employ proactive complementary when an investigation or prosecution unduly risks jeopardizing peace prospects.

Should you bargain with the Devil? In an age of terror, our national leaders face this sort of question every day. Should we negotiate with the Taliban? Iran? North Korea? What about terrorist groups holding hostages? In private disputes, you may face devils of your own. A business partner has betrayed you and now wants to negotiate a better deal. Your marriage is ending and your spouse is making extortionist demands. A business competitor has stolen your intellectual property. Your sister is fighting you over an inheritance. You are furious. Your gut tells you to fight it out in court. But when facing a devil—anyone you perceive as a harmful adversary—it may make more sense to negotiate rather than fight, says Robert Mnookin, the internationally renowned leader in the art of negotiation. How do you decide?