Hill, John Lawrence2022-01-052022-01-05199884 Iowa Law Review 275https://hdl.handle.net/1805/27288The purpose of this Article is to defend a utilitarian account of duress against the two prevailing conceptions of duress: traditional or Aristotelian accounts, and so-called moralized or contextualized theories. In Part I, this Article begins by putting forth a 'theory of theories,' and elaborates a num- ber of theoretical criteria from the philosophy of science which have been adapted and modified for evaluating the adequacy of competing jurispru- dential theories. This will permit the comparison of diverse theoretical models with the object of determining which model best explains and justifies the defense of duress. The remainder of the Article will employ these criteria in discussing the Aristotelian, moralized, and utilitarian theories of duress. Part II surveys and critiques the traditional, Aristotelian theory of du- ress. The traditional theory, which greatly influenced common law judges and remains the pre-eminent conceptual explanation for duress in modern case law, holds that duress is to be understood as an excuse accorded in virtue of the involuntariness of the act. All theories that characterize co- erced behavior as essentially unfree, or as the product of an "overborne will," 5 partake of this model. This Article argues that coerced acts cannot be distinguished from other acts on the basis of voluntariness or freedom. In- deed, acts performed under conditions of duress are entirely voluntary, as the term "voluntary" is employed in other areas of the law. Moreover, at- tempts to conceptualize coerced acts as emanating from an overborne will presuppose a philosophical model of human motivation that has been seri- ously in question from the time of the late eighteenth century. In sum, co- erced choices and acts cannot be distinguished from a variety of other situations involving constrained choice where no defense is available. For this reason, this Article argues that the traditional model must be rejected because it fails to justify the defense of duress. In Part III, this Article considers so-called 'moralized' theories of du- ress, which have become increasingly popular among academic writers in recent years. In particular, it considers the partially and radically moralized theories of Joshua Dressler and Alan Wertheimer, respectively. Moralized accounts attempt to argue in various ways that coercion is not a function of the lack of freedom of the subject, or even the psychological pressure under which putative victims of coercion act.6 In this respect, defenders of moral- ized accounts are also doubtful of the traditional model of coercion. They argue instead that notions of duress and coercion simply represent a kind of linguistic placeholder for more contextualized normative judgments that serve to exculpate or justify certain acts under certain situations. On this view, the concept of coercion is a kind of value judgment masquerading as a factual assessment of the moral-psychological state of the actor, i.e., whether the actor was free or acted voluntarily. This Article argues that, in addition to a number of internal difficulties, moralized theories are hope- lessly vague and possess little or no prescriptive value. They are high level abstractions which neither explain why coercive situations are viewed as exculpatory conditions nor guide judges, lawyers, or others in determining when a situation is coercive. In Part IV, this Article explores the utilitarian model of duress. It be- gins by discussing the utilitarian theory of punishment and the corre- sponding rationale for exculpating certain acts. Next, it argues that duress is best understood as a kind of excuse, rather than a justification. This Arti- cle then endeavors to demonstrate that duress should be conceptualized not in terms of involuntariness, but as a function of the undeterrability of coerced acts. Here, this Article examines a number of issues in the law of duress that remain contested to which utilitarian theory can provide a solu- tion. In general, it concludes that the utilitarian approach to the problem of duress will be more intellectually satisfying and more practically workable than the preceding two alternatives. In Part V, this Article explores some objections to the utilitarian theory of duress. These will include objections that the utilitarian theory cannot generate conclusions with the degree of quantitative accuracy that it im- plies, that utilitarianism leaves out the retributive dimensions of criminal punishment and that a utilitarian approach may require punishment where punishment is not morally justified. Part V also evaluates the application of utilitarian theory to duress specifically. Finally, in Part VI, this Article will conclude with a brief discussion of the utilitarian approach to duress from the standpoint of the five criteria for theoretical adequacy outlined in Part I.enArticle