The Content of Coercion

80 Pages Posted: 25 Mar 2018 Last revised: 8 Feb 2019

Date Written: February 6, 2019

Abstract

This Article is about a new approach to one of the law’s most basic questions: what is coercion? Under its traditional framing, coercion is about transactions. One person makes an offer to another person, who, under the circumstances, has no realistic option but to say “yes.” But that conception has not helped courts articulate a way to test when pressures cross the line from lawful persuasion to illegal compulsion. Without a metric, critics charge that coercion analyses are inevitably normative. This Article challenges that inevitability. Using the workplace as a case study, it argues that it is possible to weigh the impact of speech or conduct on choice, but only if the coercion’s content is clarified so that judges know what they are supposed to be evaluating. Drawing from rapid advances at the intersection of decision-making and emotion science, the Article is the first to describe what it is, exactly, about an external force that might push employees, their superiors, and consumers toward irrational judgments. The new approach unites labor law with emerging law and emotion scholarship, applies across existing doctrine, and, by lending itself to quantifiable assessments, defies normative assumptions to finally standardize the law of coercion at work.

Keywords: Labor Law, Coercion, Law and Emotions, Unions, Picketing

JEL Classification: J50, J51, J53, K31, J80, J81, J82, J83, J88

Suggested Citation

Oswalt, Michael M, The Content of Coercion (February 6, 2019). 52 U.C. Davis Law Review 1585 (2019). Available at SSRN: https://ssrn.com/abstract=3146952

Michael M Oswalt (Contact Author)

Northern Illinois College of Law ( email )

Swen Parson Hall
DeKalb, IL 60115
United States

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