Document Type

Article

Publication Date

2005

Abstract

The ideal of individual freedom and autonomy requires that society provide relief against coercion. In the law, this requirement is often translated into rules that operate "postcoercion" to undo the legal consequences of acts and promises extracted under duress. This Article argues that these ex post antiduress measures, rather than helping the coerced party, might in fact hurt her. When coercion is credible-when a credible threat to inflict an even worse outcome underlies the surrender of the coerced party-ex post relief will only induce the strong party to execute the threatened outcome ex ante, without offering the choice to surrender, depriving the coerced party of the opportunity to escape the worse outcome. Antiduress relief can be helpful to the coerced party only when the threat that led to her surrender was not credible, or when the making of threats can be deterred in the first place. The credibility methodology developed in this Article is shown to be a prerequisite (or an important complement) to any normative theory of coercion. The Article explores the implications of credible coercion analysis for existing philosophical conceptions of coercion, and applies its lessons in different legal contexts, ranging from contractual duress and unconscionability to plea bargains, constitutional conditions, and bankruptcy.


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