117 Pages Posted: 31 Dec 2010
Date Written: December 30, 2010
This article analyzes the legal doctrine of economic duress on two levels. First, it asserts that modern attempts to define and apply the doctrine illustrate the inherent ambiguity and indeterminacy of legal reasoning in general. Attempts to define one element of the doctrine often loop around to another element, so that the analysis loses any fixed frame of reference.
Application of the doctrine rests on two sets of inconsistent policies that pervade modern contract law -- policies emphasizing personal choice and personal responsibility, and policies emphasizing community values, including procedural and substantive fairness. The conceptual foundation of the doctrine is internally inconsistent, because there is no convincing way to reconcile these competing policies.
Second, the article argues that because of the internal inconsistencies, the doctrine of economic duress has ideological significance for the participants in mainstream legal culture. The continuing emphasis on free will sends the message that we really do have a "free market" -- a place where people can pursue their individual objectives through voluntary exchanges. The theoretical availability of duress as an excuse for avoiding a contract sends the message that the free market rests on a baseline standard of business ethics, and that transactions resulting from the unfair exploitation of another's weakness will not be enforced. The fact that very few cases actually end with a finding of economic duress sends the further message that virtually all marketplace transactions are fundamentally fair, despite the vast differences in wealth and bargaining power, and that the legal system stands ready to catch the few exceptions.
The underlying ideological message is thus "don't worry, be happy", although dressed up in suitable legal terminology.
Suggested Citation: Suggested Citation
Huntington, Frank C., 'One Truth is Clear, Whatever is, is Right': The History, Indeterminacy, and Ideological Significance of the Doctrine of Economic Duress (December 30, 2010). Available at SSRN: https://ssrn.com/abstract=1727465 or http://dx.doi.org/10.2139/ssrn.1727465