Tuesday, April 3, 2018
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 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.
I had the pleasure of reading an early version of this article for a SEALS presentation and highly recommend it.