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o# coerced contracts, it does so in a way that is less sweeping and morenarrowly drawnthan traditional theories have proposed.+pdated: - /0 12 3age 1 o# 94I. I4'R56+C'I54 : ' *7 3R5897%

Imagine you are )ogging along a deserted street in the evening whenanarm hoo"s around your nec" #rom behind and a deep voice growls,

;our moneyor your li#e.< ;ou #eel something hard press into your bac", which youta"e to bea gun. ;ou e!plain you were out #or a )og with no money=not even anA'%card. ;ou have plenty o# money in the ban" and are willing to returnthe ne!t daywith >0,111 cash, provided that your assailant releases you now. *edoubts yoursincerity, but you e!plain, 'his deal is in my interest. A#ter all, thealternative isconsiderably worse #or me. I# you believe me you will release me, andi# you donot, you will "ill me, assuming that you are rational, since no murderto yourcredit and a good deal o# cash is superior to no money and a highli"elihood o# arrest #or a serious #elony.< 'here#ore, I have every reason toconvince you o# mysincerity to abide by the agreement i# there is any way #or me to dothis. ;ourassailant considers this argument. So you see,< you continue,< wewill both bebetter o## and neither o# us worse o## under the deal I propose than i#you proceedto "ill me now.< Should the robber believe you? Assume #or themoment that therobber is rational, that you are rational, and that each o# you has"nowledge o# the

other&s rationality. In this case, it seems unli"ely you will be able toconvince therobber that you regard it as in your interest to "eep your promise i# itis not. 'he

common "nowledge o# rationality< that holds between youe##ectively ma"es+pdated: - /0 12 3age 2 o# 94blu##ing promises highly unli"ely to succeed. rom this it #ollows thatyou willbe able to convince the robber you will actually return with the moneyonly i# itis, indeed, rational #or you to return with the money. So the (uestionnow is:


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would it be?It would be possible to make it rational #or you to return with themoney i# there were some sort o# penalty you could set up to ensure your#uture

per#ormance. I#, #or e!ample, he had some way o# #ollowing up shouldyou #ail toappear the ne!t day, matters would be di##erent. 8ut alas, he cannotveri#y anyin#ormation you might give him about yoursel#, as you have le#t allpersonalidenti#ication at home. 'o your mutual #rustration, the situation seemshopeless.8ut #inally an idea dawns on you which you (uic"ly propose to yourassailant:you o##er to write a contract in which you will commit to returningwith thepromised sum the ne!t day in e!change #or your immediate release.

;ou e!plainthat you are a pro#essor o# contract law and are reasonably adept atdra#ting suchdocuments, and you assure him that you will spare no pains to ma"esure thecontract is correctly written. Satis#action o# the statue o# #rauds,unambiguousterms, a li(uidated damages provision, and a binding arbitration

clause=nothingwill be le#t out 8ut to your dismay, your assailant turns out to benone other than. . . a law student And he now points out that none o# these measurescouldpossibly help. *e reminds you o# a little impediment to your plan"nown as theduress de#ense, @which will be a bar to en#orcement o# this "ind o#contract in+pdated: - /0 12 3age 3 o# 94every court in the land. *e coc"s his gun and prepares to shoot.

$ait < you shout. $hat i# we agree to suspend the duress de#enseaspart o# our contract?< ;ou e!plain that since in this case both partieswouldpre#er to eliminate the de#ense, allowing the suspension is surely awin winproposition. urthermore, you argue, the duress de#ense is #or thebene#it o# thevictim, and here you=the victim=are proposing yoursel# to eliminateit$ouldn&t any sensible and compassionate )udge honor an agreementbetween the


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parties to suspend the de#ense under these circumstances? ;ourassailant,however, is once again s"eptical. Any clause suspending the duressde#ensewould itself be written under duress, he points out, given that it is

written at thevery moment at which he is threatening to shoot. It might have beendi##erent i# the agreement to eliminate the duress de#ense had been entered intoat a priortime, be#ore you were threatened with #orce. 8ut even then, he says,courts wouldbe reluctant. 'he duress de#ense, he reminds you, is not a meredefault rule, but amandatory rule, / and #or good reason: contracts under coercion arenot supposedto be binding under any circumstances, #or whatever reason.Individuals are notallowed to e!empt themselves #rom this rule )ust because there areparticularoccasions on which the rule wor"s out badly #or them. ;ou are almostcertainlyout o# luc", he e!plains.As the above discussion ma"es clear, you and your assailant #ace the#ollowing parado!ical situation. ;ou and he would both li"e to enterinto an

+pdated: - /0 12 3age 4 o# 94en#orceable agreement in which he relin(uishes his hold on you now,in e!change#or your promise to return the ne!t day with the money. 'heagreement,considered at the present moment, would bene#it both, relative to ano agreementbaseline. 8ut no matter how #ervently you both insist that youragreement ismutually bene#icial, no matter how much you insist that there is a

meeting o# theminds< B between you, no matter how sincere your intentions and howgreat theloss o# disallowing such agreements, no court in any )urisdiction woulden#orce it.%oreover, this result is not the least bit controversial. 'he propositionthatcontracts entered into under duress are unen#orceable is as solid aproposition o# blac" letter law as ever there was. 9i"e their legal counterparts,philosophers aresimilarly unanimous in the view that commitments made undercoercion entail no


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moral obligation. 0 Can the con#idence with which courts andcommentators holdthis proposition be )usti#ied? I# so, how?II. 7 DIS'I4E ACC5+4'S%ost scholars writing on coercion begin by identi#ying a set o# core

cases,which they thin" count uncontroversially as instances o# coercion, andthenproceed by o##ering some sort o# theoretical account o# them.3hilosophers, #orthe most part, are engaged in a de#initional< e!ercise: they see" toestablishnecessary and su##icient conditions #or an act o# coercion, usually acoercivespeech act, and continue by #irst elaborating their accounts o# thesecases and then+pdated: - /0 12 3age 5 o# 94applying them to a set o# more marginal cases. F %ost legal scholars,by contrast,do not attempt to supply an account o# the notion o# coercion itsel#,but insteadlimit their in(uiry to tracing the implications o# identi#ying an act asthe producto# coercion. G 'heir interest, then, is in e!plaining why the #act that anagreementor an act is coerced deprives it o# legal validity. 'hey are engaged in

what I callan implicative< account. - In this Article I ta"e mysel# to be ma"ing acontribution to the second body o# literature, with a particular #ocuson coercedagreements, as opposed to criminal o##enses. 2 I as" a#resh whethercontractsunder coercion should be en#orceable, and i# not, why not. I arguethat the usualaccounts o##ered in the )urisprudential Hi.e. legal literature o# whycoercivecontracts are unen#orceable #ail. 8ecause the philosophical and thelegal(uestions are not entirely distinct, however, I should ma"e someinitial remar"sabout the various accounts o# coercion, as well as about the theory o#contractinvalidation each may suggest or with which each would naturally beassociated.I begin by suggesting that although the common assumption thatcoercedcontracts are invalid is correct, the reasons #or this are #ar lessobvious than bothphilosophical and legal scholars have previously thought. 'he reason#or this is


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simple, yet it has been consistently overloo"ed by both philosophersand lawyers:coerced agreements are usually #ully chosen by the parties, and thisre#lects the#act that both sides see themselves as advantaged under the

agreement at the timethey enter into it. or this simple, yet unnoticed reason, it turns out tobe much+pdated: - /0 12 3age 6 o# 94more di##icult to e!plain why coerced agreements are universally heldto beinvalid than one might suppose. %y aim in this paper is to attempt tohighlightthe di##iculties o# the tas", as well as to attempt to reconstruct adi##erent approachto the problem than has generally been given.

'he better account o# the logic o# invalidation, I suggest, can be #oundinan unli"ely place, namely in the writings o# the only philosopher whoin#amouslyactually re)ected that logic altogether, 'homas *obbes. As we willsee, *obbeshas shoc"ed many generations o# scholars with his response to thisproblem byarguing that contracts with robbers are actually obligatory. 8ut Iargue that

delving into the *obbesian edi#ice a bit deeper gives us a basis #orteasing apower#ul argument #or invalidation out o# the *obbesian contractarian#ramewor". 'hat *obbes himsel# #or the most part #ailed to notice thisshould notprovide a basis #or re)ecting it, or ironically, #or #ailing to credit*obbes with itsdiscovery.9et us now turn to the basic accounts o# coercion in the philosophicaland thelegal literature. 'he two approaches to coercion that predominateamong scholarso# both sorts, whether their pro)ects are de#initional< or

implicative,< are adeontological approach on the one hand, and a conse(uentialist onthe other.Eiven the divide between the de#initional and implicative accounts,the #urthersplit between deontological and conse(uentialist approaches shouldin theory giveus #our categories: two de#initional accounts, one deontological andone+pdated: - /0 12 3age 7 o# 94


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conse(uentialist, and two implicative accounts, one deontological andoneconse(uentialist account. @1A. 7!isting Accounts

'o complicate matters #urther, deontological accounts, whether

de#initional or implicative, seem to come in several varieties,depending on the#oundation on which the deontological claim rests. In particular, twoversions o# the deontological account appear to predominate: psychological

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