Traditional coercion theories and elements are simply inadequate as an exclusive focus of analysis in duress cases. This Article does not propose a new theory of duress. Instead, it suggests a refinement of doctrine in which the courts candidly articulate certain key policy goals and develop elements based on them. These policy goals include efficiency, disclosure of unexpected risks, judicial capability, reliance, and economic incentives. If decisionmakers adopted the policy analyses suggested here, the predictability of judicial decisionmaking would be enhanced and a supplemental analysis would be available when the doctrinal elements become difficult to apply. Moreover, this approach would preserve limited judicial resources, contribute to the efficient prevention of resource misallocation, reduce judicial capability problems,43 discourage one party from speculating at the expense of an- other, provide incentives for economic industriousness, and discourage economic negligence.
Place of Original Publication
Alabama Law Review
53 Alabama Law Review 581 (1989)
Kostritsky, Juliet P., "Stepping Out of the Morass of Duress Cases: A Suggested Policy Guide" (1989). Faculty Publications. 533.