Credible Coercion

57 Pages Posted: 5 Mar 2004

See all articles by Oren Bar-Gill

Oren Bar-Gill

Harvard Law School

Omri Ben-Shahar

University of Chicago Law School

Date Written: March 2004

Abstract

The ideal of individual liberty and autonomy requires that society provide relief against coercion. In the law, this requirement is often translated into rules that operate post-coercion to undo the legal consequences of acts and promises extracted under duress. This Article argues that these ex-post anti-duress 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, to the detriment of the coerced party. Anti-duress 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, descriptive in nature, 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 and bankruptcy.

JEL Classification: K00, K12

Suggested Citation

Bar-Gill, Oren and Ben-Shahar, Omri, Credible Coercion (March 2004). Available at SSRN: https://ssrn.com/abstract=512903 or http://dx.doi.org/10.2139/ssrn.512903

Oren Bar-Gill (Contact Author)

Harvard Law School ( email )

1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States

Omri Ben-Shahar

University of Chicago Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

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