George Mason School of Law

1. George Mason School of Law Contracts I Duress F.H. Buckley fbuckley@gmu.edu

2. Physical Duress is an easy one Lee Marvin, as highwayman Liberty Valance, holding up Jimmy Stewart, The Man Who Shot Liberty Valance (John Ford, 1962)

3. Physical Duress is an easy one Restatement § 174

4. The Highwaymen 1962Steve Trott on the far left

5. Ninth Circuit Judge Steve Trott

6. The Highwaymen 1996

7. The HighwaymenTheir Opening Act 7

8. Was that duress?

9. Was that duress? • Assume I have the right to do x (sue Johnny Cash) • When is it wrongful to say “I will do x unless you do y”

10. Was that duress? • Is the general principle that, provided one has the right to do x, one is permitted to extract some advantage by a threat to do x?

11. What about blackmail, then? David Letterman

12. Improper threats • Does the blackmailer have the right to reveal that Letterman preyed on his female staffers?

13. Improper threats • Does the blackmailer have the right to reveal that Letterman preyed on his female staffers? • Does the blackmailer have the right to ask Letterman for money?

14. Improper threats • Does the blackmailer have the right to reveal that Letterman preyed on his female staffers? • Does the blackmailer have the right to ask Letterman for money? • Does the blackmailer have the right to ask Letterman for money and to tell him he will reveal the information if he is not paid?

15. Improper threats • Does the blackmailer have the right to ask Letterman for money and to tell him he will reveal the information if he is not paid? • How do two rights make a wrong?

16. Improper threats • Does the blackmailer have the right to ask Letterman for money and to tell him he will reveal the information if he is not paid? • Does blackmail usefully impose a cost on transgressive behavior?

17. Improper threats • Does the blackmailer have the right to ask Letterman for money and to tell him he will reveal the information if he is not paid? • Does blackmail usefully impose a cost on transgressive behavior? • Is it an answer that, if the blackmail is paid, the information is not revealed?

18. Improper threats • Does the blackmailer have the right to ask Letterman for money and to tell him he will reveal the information if he is not paid? • Does blackmail usefully impose a cost on transgressive behavior? • Why then is blackmail a crime?

19. Improper threats • Restatement § 176(1)(a) (“or if the threat itself…”) • Restatement § 176(2)(a).

20. Improper threats • How would life be different were blackmail legalized?

21. Improper threats • How would life be different were blackmail legalized? • Blackmail Inc.: more resources expended to discover dirt.

22. Improper threats • How would life be different were blackmail legalized? • Blackmail Inc.: more resources expended to discover dirt. • Less transgressive behavior • Greater effort to hide transgressive behavior

23. Improper threats • Is that the kind of world we want? • If not, why not?

24. Improper threats • Is that the kind of world we want? • If not, why not? • Should we want a right to sin in private?

25. Improper threats • Is that the kind of world we want? • If not, why not? • Should we want a right to sin in private? The Scarlet Letter

26. Improper threats • Is that the kind of world we want? • Are the social norms blackmail would enforce always benign? Don Murray and Charles Laughton, Advise and Consent (1962)

27. So what was the duress in Wolf v. Marlton?

28. What was the duress in Wolf v. Marlton? A white crowd gathers on the front porch at 1863 E. 70th Street in South Los Angeles, where W.H. Whitson planned to sell his home to a black family. Sept. 7, 1949, LA Weekly 28

29. Was that duress? What did the Δ’s do in the end? 29

30. What did the Δ’s do? 4th Grade Class, Beeler Public School, Marlton NJ, 2007 30

31. Was that duress? • Just why was the threat wrongful? • Restatement § 175 (an “improper threat”)

32. Was that duress? • Just why was the threat wrongful? • Wrongful “in a moral sense”? An “outrageous purpose”? 32

33. Was that duress? • Just why was the threat wrongful? • Wrongful “in a moral sense”? An “outrageous purpose”? • When does a party breach “the duty of good faith and fair dealing” in Restatement § 176(1)(d)? 33

34. Was that duress? You’re a New Jersey judge in 1959. You’re handed Wolf, and you think segregation is an evil. What do you do? 34

35. Was that duress? • You’re a New Jersey judge in 1959. You’re handed Wolf, and you think segregation is an evil. What do you do? • What is worse? Making the threat or succumbing to it? Or is it the same?

36. Was that duress? • You’re a New Jersey judge in 1959. You’re handed Wolf, and you think segregation is an evil. What do you do? • How do the incentives cut? 36

37. Was that duress? • What’s the remedy the Π’s seek? And why should that matter?

38. Was that duress? • What’s the remedy the Π’s seek? And why should that matter? • Rescissionary relief an equitable remedy • The clean hands doctrine

39. Was that duress? • Just why was the threat wrongful? • Wrongful “in a moral sense”? An “outrageous purpose”? • “malicious motives”? • Can you define malice? 39

40. Was that duress? Orson Welles and Michael MacLiammoir, Othello, 1952 • Just why was the threat wrongful? • Wrongful “in a moral sense”? An “outrageous purpose”? • “malicious motives”? • Can you define malice? 40

41. Was that duress? • Just why was the threat wrongful? • Wrongful “in a moral sense”? An “outrageous purpose”? • “malicious motives”? • Can you define malice? • Restatement § 176(2)(a) 41

42. Was that duress? • Suppose that the threat was to sell the house to a member of the mob? Would that have made a difference?

43. Was that duress? • Just why was the threat wrongful? • Wrongful “in a moral sense”? An “outrageous purpose”? • “malicious motives”? • The intensity of the pressure on the Δs? 43

44. Was that duress? • Is this case like Hochman? • “Further instructive is…”

45. Improper threats • The threat to bring criminal proceedings. • Restatement § 176(1)(b)

46. Improper threats • The threat to bring criminal proceedings • The bad faith threat to commence a civil action. • Restatement § 176(1)(c) 46

47. Improper threats • The threat to bring criminal proceedings • The bad faith threat to commence a civil action • What if the Π has no knowledge of Δs wrongdoing and asks for a settlement that is less than the cost of discovery? 47

48. Contract ModificationAustin v. Loral Why did Loral agree to the contract modification? 48

49. Contract ModificationAustin v. Loral • Situational monopolies • The possibility of post-contractual opportunism • What should the courts do? 49

50. Contract ModificationAustin v. Loral • Suppose you had been counsel for Austin. How might you have amended your pleadings?