ABSTRACT
Eight decades after the legal realist and comparativist John Dawson documented the beginning of an evolution of the doctrine of duress in US employment, I have been charged with answering two questions: (1) whether, as Dawson predicted, the doctrine has transitioned from a more restrictive psychological duress standard to a more expansive economic duress standard and (2) if so, why the courts have appeared to be the prime movers. Neither question has a concise answer. As for the first, I have canvassed cases and determined that the doctrine has nominally evolved but most courts have refused to follow along, with only the occasional judge finding for an employee claiming duress. As for the second, the rare judge who finds the possibility of duress has done so only by exploiting ambiguities in the doctrine, perhaps out of a fundamental sense of fairness or due to legislative inaction. A robust argument for universal adoption of the more expansive economic duress test would go beyond the scope of this inquiry. But at least until courts universally embrace that test, it is generally a good thing that some courts are exploiting duress’s doctrinal inconsistencies to rule for workers in especially dire circumstances.
Harris, Jonathan, Economic Duress in United States Employment (December 7, 2023), 42 Comparative Labor Law & Policy Journal (forthcoming); Loyola Law School, Los Angeles Legal Studies Research Paper No 2023-40.
Leave a Reply