The Myth of Choice_ Personal Responsibility in a World of Limits - Kent Greenfield [15]
Contract law also has built-in exceptions that allow people to get out of contracts if they really had no choice. Contracts signed under duress—if Tony Soprano has a gun to your head—are not valid. The law can be quite nuanced in giving courts the authority to look behind appearances to see if the choices made by the parties were genuine. Courts do not enforce contracts that are the product of fraud or lying, which prevents the other party from understanding what they are buying. The doctrine of “unconscionability” is also related to choice. If a contract is so one-sided and unfair that it looks like the product of coercion, misunderstanding, or the misuse of power, it may be set aside.
One such case arose in California, in the bad old days when homosexuality was a crime.11 Donald Odorizzi, an elementary school teacher, was arrested for homosexual activity. After he was questioned, booked, and released on bail, the superintendent of his school district and the principal of his school showed up at his apartment with a letter of resignation they wanted Odorizzi to sign. The superintendent and principal told him that if he did not resign they would fire him and publicize the proceedings, humiliating him. Odorizzi had not slept in forty hours, and his bosses would not let him consult an attorney. He signed the letter. A month later, the criminal case against him was dropped and he sued to get his job back, saying that the resignation, which was a kind of contract, was a product of “undue influence.” A lower court dismissed his complaint but an appeals court reversed, saying that a contract is not valid if it is a product of “persuasion which tends to be coercive . . . which overcomes the will without convincing the judgment.”
This raises the question of how much persuasion is too much, or when a choice is not a choice. As the Odorizzi court said, in language only an appeals court could love: “The difficulty, of course, lies in determining when the forces of persuasion have overflowed their normal banks and become oppressive flood waters.”
There is not a person alive who has not had second thoughts after a purchase or regretted listening to that salesperson who said, “Wow, that outfit looks great on you.” Persuasion is not the same as coercion, and sometimes second thoughts are something we have to live with. Sometimes we can change our minds, sometimes not. In the Odorizzi case the court was correct to give Odorizzi a chance to recant, since sometimes people are under such pressure (for example, when they’re essentially being blackmailed) that it is not fair to hold them accountable for their choices.
The difficulty is drawing the line between choice and coercion. As a descriptive matter, courts are increasingly stingy in giving people an out because they felt they were unduly pressured or mistaken. The law assumes assent in a wide range of so-called contracts even when no genuine choice existed. Think of this the next time you buy software only to find that you cannot use it unless you agree to a contract that appears onscreen only when you insert the disk or start the download. The contract is valid and limits your rights, even though you could not negotiate and had no way to review the terms before you purchased the software.
Criminal law. Within days of starting a law school criminal law course, students read famous cases in which someone committed a crime while sleepwalking, hypnotized, or suffering from mental illness. One early case from the 1800s concerns a sleepwalker who shot a porter in a small Kentucky hotel.12 The accused, a man named Fain, was sleeping in the lobby and the porter was trying to wake him to get him to move along. Apparently without waking, Fain rose up, pulled a gun he was carrying, and shot the porter three times. The facts sound suspicious to me, but the court was told that Fain had a history of sleepwalking and was often violent and panicky in such condition.