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Copyright (c) 1999 Iowa University
Iowa Law Review

ARTICLE: A Utilitarian Theory of Duress

January, 1999

84 Iowa L. Rev. 275


John Lawrence Hill *



Duress is perhaps the most difficult defense to conceptualize and justify for a number of fundamental reasons. First, there is considerable disagreement concerning whether it is most accurately characterized as an excuse predicated upon the compelled nature of the act, or as a type of choice of evils justification analogous to the defense of necessity. 1 Second, if it is to be regarded as a type of excuse, it is arguably unlike all other exculpatory conditions in that it is the only excuse available to one who acts voluntarily, rationally, and with full information. 2 Moreover, its availability in both the civil and criminal realms creates problems with the consistency of scope and application in diverse legal areas. 3 Most generally, no other single excuse or justification has engendered as much controversy and debate with respect to its proper definitional characterization, its normative justification, and its legal application. 4

The purpose of this Article is to defend a utilitarian account of duress against the two prevailing conceptions of duress: traditional or Aristotelian accounts, and so-called moralized or contextualized theories. In Part I, this Article begins by putting forth a 'theory of theories,' and elaborates a number of theoretical criteria from the philosophy of science which have been adapted and modified for evaluating the adequacy of competing jurisprudential theories. This will permit the comparison of diverse theoretical models with the object of determining which model best explains and justifies the defense of duress. The remainder of the Article ...
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