The normative functions of coercion claims

Legal Theory

Volumn 8, Issue 1, 2002, Pages 45-89

  Berman, Mitchell N ^a  

^a UNIVERSITY OF TEXAS AT AUSTIN   (United States)

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EID: 4043156922     PISSN: 13523252     EISSN: 14698048     Source Type: Journal    
DOI: 10.1017/S1352325202081028     Document Type: Article

References (74)

1. Robert Nozick, Coercion, in PHILOSOPHY, SCIENCE AND METHOD 440 (Sidney Morgenbesser et al., ed. 1969).
2. The most comprehensive account, which explores coercion from both legal and philosophical perspectives, is Alan Wertheimer, COERCION (1987). Other particularly valuable contributions to a substantial literature include Joel Feinberg, HARM TO SELF 189-268 (1986); Harry G. Frankfurt, Coercion and Moral Responsibility, in ESSAYS ON FREEDOM OF ACTION 63 (Ted Honderich ed. 1973); Vinit Haksar, Coercive Proposals, 4 POL. THEORY 65 (1976); Daniel Lyons, Welcome Threats and Coercive Offers, 50 PHIL. 425 (1975); Peter Westen, “Freedom” and “Coercion”-Virtue Words and Vice Words, 1985 DUKE L.J. 541; and David Zimmerman, Coercive Wage Offers, 10 PHIL. & PUB. AFFAIRS 121 (1981).
3. Wertheimer, Other particularly valuable contributions to a substantial literature include Joel Feinberg note 2, at 6.
4. Virginia Held, Coercion and Coercive Offers, in NOMOS XIV: COERCION 49, 62 (1972).
5. Michael D. Bayles, A Concept of Coercion, in NOMOS XIV: COERCION 16, 16 (1972); see also Haksar, Coercion and Coercive Offers note 2, at 74.
6. For one exploration of this theme, see J. Roland Pennock, Coercion: An Overview, in NOMOS XIV: COERCION 1 (1972).
7. Zimmerman, Coercion: An Overview note 2.
8. See generally Lawrence A. Alexander, Zimmerman on Coercive Wage Offers, 12 PHIL. & PUB. AFFAIRS 160 (1983); see also Wertheimer, Coercion: An Overview note note 2, at 253-55. In his response to Alexander, Zimmerman seems to have partially conceded this point, though he proceeds to defend his inquiry as potentially serving important political purposes. See David Zimmerman, More on Coercive Wage Offers: A Reply to Alexander, 12 PHIL. & PUB. AFFAIRS 165, 170-71 (1983). I do not deny this is so; the rhetorical function of coercion claims is not my subject here.
9. This equation of wrongfulness and blameworthiness might seem imprecise for a number of reasons. For one thing, a focus on wrongfulness might be more appropriate insofar as we wish to ask this first type of coercion question ex ante to advise that particular conduct should not be engaged in. Second, even insofar as we undertake the inquiry ex post, a determination that conduct was coercive, and thus (presumptively) bad, need not entail that A was blameworthy for engaging in it. That latter conclusion depends as well upon certain assumptions of moral agency. See, e.g., Peter Aranella, Convicting the Morally Blameless: Reassessing the Relationship between Legal and Moral Accountability, 39 UCLA L. REV. 1511 (1992); Michael S. Moore, Prima Facie Moral Culpability, 76 B.U. L. REV. 319, 319 (1996). For present purposes, though, these qualifications need not distract us. Accordingly, I will generally speak interchangeably of the wrongfulness of A's conduct, and of A's blameworthiness for that conduct. In either case, such a judgment is only presumptive. See infra note 14.
10. For similar observations see, e.g., Joseph Raz, THE MORALITY OF FREEDOM 151 (1986); Wertheimer, This equation of wrongfulness and blameworthiness might seem imprecise for a number of reasons. note 2, at 180-81.
11. Or such is the prevailing view. See, e.g., Nozick, THE MORALITY OF FREEDOM 151 note 1, at 443-44; Bayles, THE MORALITY OF FREEDOM 151 note 6, at 19; Lyons, THE MORALITY OF FREEDOM 151 note 2, at 425 n.1; Bernard Gert, Coercion and Freedom, in NOMOS XIV: COERCION 30, 47 (1972);Martin Gunderson, Threats and Coercion, 9CAN. J. PHIL. 247, 256 (1979); Held, THE MORALITY OF FREEDOM 151 note 5, at 51. It is not, however, universal. Peter Westen, for example, urges that “to coerce a person is to subject him to coercive constraint,” and that only “coerce into” implies success. Westen, THE MORALITY OF FREEDOM 151 note 2, at 562-63. We can afford to be agnostic on this question, however. So long as one can intend to subject another to “coercive constraint” and yet fail to do so, then it remains true, even onWesten's view, that A's blameworthiness should not depend upon his actually coercing some B. Consequently, the instant dispute serves principally to reinforce the plasticity and arbitrariness of coercion language and thus the importance of attending directly to the underlying normative questions.
12. That is, A's conduct is presumptively wrongful. As many commentators have recognized, coerciveW action can be justified. For one such discussion, see Robert Paul Wolff, Is Coercion “Ethically Neutral”? NOMOS XIV: COERCION 144 (1972). See also Cheyney C. Ryan, The Normative Concept of Coercion, 89 MIND 481, 493-95 (1980). My purpose here is to explicate coercionW. How coercionW can be justified is a wholly separate question that I will not address. See Alan Wertheimer, Remarks on Coercion and Exploitation, 74 DENV. U. L. REV. 889, 889 (1997) (expressing a similar view).
13. Though I will often cast coercionW questions specifically in terms of whether a proposal was coerciveW, and coercionE questions in terms of whether an individual was coercedE, I hasten to emphasize that I am not claiming either that, as a matter of ordinary language, it is improper to characterize something as “coercive” except to signify an instance of coercionW, or that speaking of a person being “coerced” always or “really” means that she was coercedE. On the other hand, I do not believe that assimilating the adjective “coercive” to coercionW and the passive verb form “coerced” to coercionE is wholly arbitrary. Daniel Lyons has commented on the “odd fact that outside of philosophy and law journals, we rarely use ‘coerce’ as an active verb at all.” Daniel Lyons, The Last Word on Coercive Offers… (?), 1983 PHIL. RES. ARCHIVES 393, 398. This is true, I think, but not so odd. This feature of our linguistic practice at least partially reflects that, in contrast to questions of “coerciveness” and “coercedness,” whether A actually “coerces B” is of little normative significance.
14. In recent works, William Edmundson and Grant Lamond distinguish coercion claims in a way that yields something akin to my distinction between coercionW and coercionE. See William A. Edmundson, THREE ANARCHICAL FALLACIES: AN ESSAY ON POLITICAL AUTHORITY 74 (1998) (contending that coercion claims arise in three distinct types of “contexts,” labeled “justification supplying,” “justification defeating,” and “justification demanding”); Grant Lamond, The Coerciveness of Law, 20 OXFORD J. LEG. STUD. 39, 47-51 (2000) (identifying three “conceptions” of coercion, what he calls the “action-inducing use,” the “liability-grounding use,” and the “responsibility-affecting use”). It is not clear, though, how similar this aspect of our accounts is. For example, although my coercionW seems much like Edmundson's “justification demanding” context, the first example he gives of a “justification defeating” claim-involving a man who secures sexual intercourse with a woman by threat of physical harm-likewise seems a paradigmatic example of coercionW. And whereas Lamond's “actioninducing use” seems the closest of his three conceptions to my coercionW, Lamond says this requires “that someone was forced or made to act under pressure from another and thus did not act voluntarily,” id. at 47, which is irrelevant for purposes of coercionW. More notably, to whatever extent my distinction between coercionW and coercionE might prove similar to distinctions Edmundson or Lamond advance, the differences between my overall thesis and theirs are of greater significance. For one thing, Edmundson's and Lamond's distinctions are each tripartite, not, as mine, bipartite. I explain in Section IV.D infra why I think the third normative function that coercion claims might be thought to serve is not in fact distinct. Moreover, at least Edmundson explicitly affirms precisely what I deny-namely, “that a univocal account of the truth conditions of coercions claims is possible.” Edmundson, This is true, I think, but not so odd., at 78.
15. See Wertheimer, “that a univocal account of the truth conditions of coercions claims is possible.” note 2, at 211.
16. This formulation, I believe, adequately accommodates Nozick's observation that conduct can be coerciveW even if A does not actually want B to perform x. Nozick, “that a univocal account of the truth conditions of coercions claims is possible.” note 2 note 1, at 442.
17. Bayles, I believe, adequately accommodates Nozick's observation that conduct can be coerciveW even if A does not actually want B to perform x. Nozick note 6, at 17. Grant Lamond and Alan Wertheimer both subdivide occurrent coercion-distinguishing, respectively, physical compulsion from psychological compulsion, see Grant Lamond, Coercion, Threats, and the Puzzle of Blackmail, in HARM AND CULPABILITY 215, 218-19 (A.P. Simester & A.T.H. Smith eds. 1996), and involuntary movements from involuntary acts, see Wertheimer, I believe, adequately accommodates Nozick's observation that conduct can be coerciveW even if A does not actually want B to perform x. Nozick note 2, at 9-10. I agree that psychological compulsion is best treated like physical compulsion when our focus is on coercionE. See infra note 50. For purposes of coercionW, however, classification is less neat. Where A uses psychological pressure to destroy B's ability to act volitionally, he employs occurrent coercion. But if A tries to compel B with threats A believes B will be unable to resist, this is dispositional coercion.
18. This hypothetical is adapted from Leo Katz, ILL-GOTTEN GAINS 1-4 (1996).
19. Nozick, This hypothetical is adapted from Leo Katz note 1, at 444.
20. See, e.g., Held, This hypothetical is adapted from Leo Katz note 1 note 5.
21. Like recognition of this point is found in, e.g., Haksar, This hypothetical is adapted from Leo Katz note 1 note note 2, at 69; Lyons, This hypothetical is adapted from Leo Katz note 1 note note 2, at 427; Wertheimer, This hypothetical is adapted from Leo Katz note 1 note note 2, at 243.
22. To some, this supposition might have the air of ipse dixit about it, given that other writers appear to conceptualize coercive proposals as wrongful for tending to insult or degrade the offeree. See, e.g., Lyons, Like recognition of this point is found in note 2, at 436. I concede that I do not know how to resolve such a disagreement except, at this stage, by resort to mostly pretheoretical intuition. On that score, I think my more precise formulation has much to recommend it. Ultimately, though, the test of my proposed conceptualization of coercionW, and of coercionE for that matter, is (as Lamond nicely puts it) “how convincing and illuminating an account they provide in each case-whether what they deliver is still recognizable as an account of the phenomenon in question, how well it succeeds in systematically linking the phenomenon to related aspects of our understanding, and whether it deepens our comprehension of the phenomenon.” Lamond, Like recognition of this point is found in note 16, at 47. In these regards, note that locating the wrongfulness of coercionW in the exertion of wrongful pressure, rather than in the more general violation of a Kantian duty to treat others as persons not objects, see Wolff, Like recognition of this point is found in note 14, at 146, will better enable us to distinguish the core concept of coercion from the core concept of exploitation. See infra Section VI.
23. In a federal system, the problem also often arises when the national government conditions benefits on a state's waiver of constitutional protections, such as sovereign immunity from suit. Some aspects of this issue are explored in Mitchell N. Berman, R. Anthony Reese, & Ernest A. Young, State Accountability for Violations of Intellectual Property Rights: How to “Fix” Florida Prepaid (And How Not To), 79 TEX. L. REV. 1037, 1130-1172 (2001).
24. Some of the more important recent contributions to the legal literature are Kathleen M. Sullivan, Unconstitutional Conditions, 102 HARV. L. REV. 1415 (1989); Richard A. Epstein, Foreword: Unconstitutional Conditions, State Powers, and the Limits of Consent, 102 HARV. L. REV. 4 (1988); and Seth F. Kreimer, Allocational Sanctions: The Problem of Negative Rights in a Positive State, 132 U. PA. L. REV. 1293 (1984). For appreciation of the problem in the standard philosophical literature on coercion, see, e.g., Lyons, a federal system, the problem also often arises when the national government conditions benefits on a state's waiver of constitutional protections, such as sovereign immunity from suit. note 2, at 425; Held, a federal system, the problem also often arises when the national government conditions benefits on a state's waiver of constitutional protections, such as sovereign immunity from suit. note 5, at 56-62; Don Van DeVeer, Coercion, Seduction, and Rights, 58 PERSONALIST 374, 379-80 (1977).
25. Most notably Kreimer, For appreciation of the problem in the standard philosophical literature on coercion note 27. See also Westen, For appreciation of the problem in the standard philosophical literature on coercion note 2; Kenneth W. Simons, Offers, Threats, and Unconstitutional Conditions, 26 SAN DIEGO L. REV. 289 (1989).
26. Sullivan, Most notably Kreimer note 27, at 1428, 1450. Michael Bayles had reached a similar conclusion several years earlier: “If the government is not morally obligated to provide the benefits independent of the conditions, their addition does not deprive recipients of legitimately expectable benefits. Thus no harm or coercion is involved.” Michael D. Bayles, Coercive Offers and Public Benefits, 55 PERSONALIST 139, 143-44 (1974).
27. See, e.g., Wertheimer, Thus no harm or coercion is involved.” note 2, at 217-19; Haksar, Thus no harm or coercion is involved.” note 2, at 69. Zimmerman observes that “it is one thing to say [a] proposal is coercive because [the maker] violates a prior obligation, which is itself grounded in either utilitarian or Kantian reasons, and quite another to say that [the act of coercion] is wrong because it has those non-moral features which figure in the utilitarian and Kantian principles.” Zimmerman, Thus no harm or coercion is involved.” note 2, at 130-31. He proceeds to argue that only the latter approach can be satisfactory. To be clear, I am adopting the former. But with two caveats. First, and most critically, I do not claim that a proposal is coercive (hence wrongful) because it violates a prior duty. Such a view is rightly criticized as empty unless it supplies content to those prior duties. See, e.g., John Lawrence Hill, Moralized Theories of Coercion: A Critical Analysis, 74 DENV. U. L. REV. 907, 927 (1997). I contend that a proposal is coerciveW (hence wrongful) if the act threatened would violate a duty. Because this claim entails a specific method of analyzing coercion claims, it is not vacuous. Second, the “prior obligation” at issue need not be traced solely to utilitarian or Kantian reasons. It could be grounded in whatever principles are thought to define obligations in the particular normative discourse.
28. See Mitchell N. Berman, Coercion Without Baselines: Unconstitutional Conditions in Three Dimensions, 90 GEO. L.J. 1 (2001).
29. See Westen, Coercion Without Baselines: Unconstitutional Conditions in Three Dimensions note 2, at 570-71 (making this point and citing partisans on each side of the debate). Westen himself adopts the view that offers can be coercive. See id., at 587-89.
30. Wertheimer, for example, denies that there is any single appropriate baseline and argues instead that different baselines are correct for different purposes. He agrees, however, that threats are defined as proposals that would leave the recipient worse off than whichever baseline is properly designated for the given need. See Wertheimer, Westen himself adopts the view that offers can be coercive. note 2, at 211-14.
31. To be sure, other commentators too have written that only threats can be coercive but that not all threats are coercive. See, e.g., Raz, Wertheimer, for example, denies that there is any single appropriate baseline and argues instead that different baselines are correct for different purposes. note 12, at 153 (asking “how serious need a threat be to be a coercive one?”); Gert, Wertheimer, for example, denies that there is any single appropriate baseline and argues instead that different baselines are correct for different purposes. note 13, at 43. As far as I can tell, though, such authors are making a different point. Both Raz and Gert, for instance, are claiming that only some subsets of threats are “coercive” in the sense of sufficing to constitute coercionE if accepted. See Raz, Wertheimer, for example, denies that there is any single appropriate baseline and argues instead that different baselines are correct for different purposes, at 153-54; Gert, Wertheimer, for example, denies that there is any single appropriate baseline and argues instead that different baselines are correct for different purposes, at 31-33. As we will see (in Section IV), I agree with that claim. They are not arguing (as I do here) that only some subsets of threats are “coercive” in the sense of being presumptively wrongful (and thus subjecting A to blame)-that is, coerciveW.
32. See, e.g., Frankfurt, To be sure, other commentators too have written that only threats can be coercive but that not all threats are coercive. note 2, at 66; Haksar, To be sure, other commentators too have written that only threats can be coercive but that not all threats are coercive. note 2, at 66.
33. Nozick, To be sure, other commentators too have written that only threats can be coercive but that not all threats are coercive. note 2 note 1, at 449.
34. See Hillel Steiner, Individual Liberty, 75 PROC. ARISTOTELIAN SOC'Y 33, 39 (1974-75).
35. Vinit Haksar and Kristjan Kristjansson make similar points. See Haksar, Individual Liberty note 2, at 68 (calling the act threatened A's “declared unilateral plan”); Kristjan Kristjansson, Freedom, Offers, and Obstacles, 29 AM. PHIL. Q. 63, 67-69 (1992) (terming all conditional proposals “throffers”-contrary to Steiner's usage which, as noted above, employs the term to refer to a small subset of proposals-to represent that they all contain both a threat and an offer).
36. Frankfurt, “declared unilateral plan” note 2, at 67.
37. While I believe that this is a perfectly acceptable use of the phrase, the skeptical reader should keep in mind that this is merely a stipulation. For some thoughts about the “real” meaning of duress and its relation to coercion see Westen, “declared unilateral plan” note 2 note 2, at 544-45.
38. See generally Wertheimer, While I believe that this is a perfectly acceptable use of the phrase, the skeptical reader should keep in mind that this is merely a stipulation. note 2, ch. 15. Although I agree with much of Wertheimer's penetrating analysis, I am not inclined to agree with his ruminations about the distinction between justification and excuse. See id., at 269-72.
39. John Lawrence Hill defines “radically moralized theories” of coercion as those that “eschew any reference to the voluntariness or freedom of particular acts, at least where voluntariness is defined as an empirical state reflecting the author's psychological capacity to resist acting.” Hill, Although I agree with much of Wertheimer's penetrating analysis, I am not inclined to agree with his ruminations about the distinction between justification and excuse. note 30, at 910-11.
40. This discussion is therefore agnostic regarding Harry Frankfurt's claim that it is “a necessary condition of coercion that a person should have to be convinced that he has no choice but to submit.” Frankfurt, John Lawrence Hill defines “radically moralized theories” of coercion as those that “eschew any reference to the voluntariness or freedom of particular acts, at least where voluntariness is defined as an empirical state reflecting the author's psychological capacity to resist acting.” note 2, at 80; see also id. at 75 (“A person who is coerced is compelled to do what he does. He has no choice but to do it.”). For a thoughtful analysis of different ways to measure the amount of “coercive pressure” a choice situation exerts, as measured by y's ineligibility (to B), rather than by y's wrongfulness (if performed by A), see Feinberg, John Lawrence Hill defines “radically moralized theories” of coercion as those that “eschew any reference to the voluntariness or freedom of particular acts, at least where voluntariness is defined as an empirical state reflecting the author's psychological capacity to resist acting.” note 2, at 199-212.
41. See, e.g., Lamond, This discussion is therefore agnostic regarding Harry Frankfurt's claim that it is “a necessary condition of coercion that a person should have to be convinced that he has no choice but to submit.” note 19, at 220 (“Clearly coercion is a necessary component of duress, but it only establishes duress where it justifies or excuses the victim's behavior.”); Lamond, This discussion is therefore agnostic regarding Harry Frankfurt's claim that it is “a necessary condition of coercion that a person should have to be convinced that he has no choice but to submit.” note 16 at 48. A softer contention would be that even if coercionW is not a necessary condition of coercionE, it is nonetheless normatively significant such that, holding constant the amount and quality of pressure that the prospect of y exerts on B, whether the threat of y emerges as part of a coerciveW proposal itself affects the coercionE analysis. The argument to follow addresses this weaker position too.
42. These well-known hypotheticals were first introduced in Sanford Kadish & Monroe Paulsen, CRIMINAL LAW AND ITS PROCESSES 570-71 (3d ed. 1975). Here, and throughout this paper, I have altered letters designating parties, or standing for acts threatened and demanded, to conform to my usage. Such alterations effect no changes in meaning; for ease of readability, I do not signal the substitutions as they occur.
43. As Lawrence Becker has observed, this is true as well of coercionE claims predicated on B's psychological inability to withstand the act threatened. See Lawrence C. Becker, Hard Choices Are Enough, 67 VA. L. REV. 97, 99-100 (1981) (doubting that there is “any practical difference… between what Murphy calls Duress2 ('being unfairly placed in a situation of great psychological pressure’) and ‘simple pressure’ (where the amount of pressure may be the same but there is no one applying it unfairly)”).
44. Compare, e.g., Frankfurt, As Lawrence Becker has observed, this is true as well of coercionE claims predicated on B's psychological inability to withstand the act threatened. note 2, at 83-84;Westen, As Lawrence Becker has observed, this is true as well of coercionE claims predicated on B's psychological inability to withstand the act threatened. note 2, at 560;Wertheimer, As Lawrence Becker has observed, this is true as well of coercionE claims predicated on B's psychological inability to withstand the act threatened. note 2, at 267 (only persons can “coerce”); with, e.g., Feinberg, As Lawrence Becker has observed, this is true as well of coercionE claims predicated on B's psychological inability to withstand the act threatened. note 2, at 193 (situations can coerce too).
45. See only persons can “coerce” note 4 and accompanying text. This formulation is neither casual nor careless. It's how Wertheimer articulates the issue throughout his book. See Wertheimer, only persons can “coerce” note 2, at 172-75, 267-70, 281-86, 307.
46. For the classic examination see H.L.A. Hart, PUNISHMENT AND RESPONSIBILITY: ESSAYS IN THE PHILOSOPHY OF LAW 210-30 (1968) (distinguishing four basic concepts of responsibility in legal and moral contexts-what he calls role-responsibility, causal-responsibility, liabilityresponsibility, and capacity-responsibility).
47. Also, praise attaches to supererogatory conduct. See infra text accompanying note 107.
48. See authorities cited Also, praise attaches to supererogatory conduct. note 16.
49. This, I think, is the conclusion Wertheimer would draw. See generally Wertheimer, authorities cited Also, praise attaches to supererogatory conduct. note note 2, at 23-46.
50. This example is adapted from Richard Epstein, Unconscionability: A Critical Reappraisal, 18 J. L. & ECON. 293, 296 (1975).
51. Wertheimer, Id. note 2, at 28, 40-42.
52. For a revealing example of this situation, consider Wertheimer's own gloss on Harry Frankfurt's remarks about “coerced confessions.” Frankfurt had observed that “[t]he courts may refuse to admit in evidence, on the grounds that it was coerced, a confession which the police have obtained from a prisoner by threatening to beat him. But the prisoner's accomplices, who are compromised by the confession, are less likely to agree that he was genuinely coerced into confession.” Frankfurt, Id. note 2 note 2, at 65. After quoting this passage,Wertheimer claims that it reflects the fallacy of equivocation because “[t]here is no reason to think that there must be a single acceptable answer” to the question of whether the prisoner's confession was coerced. “We may think that the sort of pressure to which the prisoner was subject may be sufficient to deprive his confession of legal validity. At the same time, and if there is anything like honor among thieves, the very same pressures may not be sufficient to excuse his betrayal of his accomplices.” Wertheimer, Id. note 2 note 14, at 894.
53. Feinberg, For a revealing example of this situation, consider Wertheimer's own gloss on Harry Frankfurt's remarks about “coerced confessions.” note 2, at 211-12.
54. See Joel Feinberg, HARM TO OTHERS 192 (1984).
55. MPC §3.02(1)(a).
56. In Nozick's terms, institutional limitations might render this the best choice among suboptimal alternatives. See Nozick, MPC note 1, at 456-57.
57. MPC Commentary to §2.09, at 379.
58. Zimmerman, MPC Commentary to §2.09 note 10, at 169.
59. Lyons, MPC Commentary to §2.09 note 10 note 2, at 436.
60. PeterWesten proposes a similar (but not identical) two-baseline theory, seeWesten, Id. note 2, at 586-87, and likewise appears too quick to find A blameworthy. See id, at 579-82.
61. Murphy, PeterWesten proposes a similar (but not identical) two-baseline theory, seeWesten, Id. note 2, at 586-87, and likewise appears too quick to find A blameworthy. note 50, at 81.
62. Nozick, PeterWesten proposes a similar (but not identical) two-baseline theory, seeWesten, Id. note 2, at 586-87, and likewise appears too quick to find A blameworthy. note 50 note 1, at 450.
63. Nozick concluded it was a threat after proposing “that when the normal and morally expected courses of events diverge, the one of these which is to be used in deciding whether a conditional announcement of an action constitutes a threat or an offer is the course of events that the recipient of the action prefers.” Id. at 451. But he did admit to some doubt. See id., at 469 n. 30. Theorists who agree that the slave owner's proposal is a threat include Westen, PeterWesten proposes a similar (but not identical) two-baseline theory, seeWesten, Id. note 2, at 586-87, and likewise appears too quick to find A blameworthy. note 50 note 1 note 2, at 583; and Wertheimer, PeterWesten proposes a similar (but not identical) two-baseline theory, seeWesten, Id. note 2, at 586-87, and likewise appears too quick to find A blameworthy. note 50 note 1 note 2, at 213. Those viewing the proposal as an offer include Feinberg, PeterWesten proposes a similar (but not identical) two-baseline theory, seeWesten, Id. note 2, at 586-87, and likewise appears too quick to find A blameworthy. note 50 note 1 note 2, at 221-22; and Zimmerman, PeterWesten proposes a similar (but not identical) two-baseline theory, seeWesten, Id. note 2, at 586-87, and likewise appears too quick to find A blameworthy. note 50 note 1 note 2, at 127-28.
64. Westen, Nozick concluded it was a threat after proposing “that when the normal and morally expected courses of events diverge, the one of these which is to be used in deciding whether a conditional announcement of an action constitutes a threat or an offer is the course of events that the recipient of the action prefers.” note 2, at 560.
65. This point is not limited to coercionE claims. If you did not already believe (and were not amenable to being convinced) that beating the slave is morally wrongful, I could not demonstrate that the slave owner's proposal to do so was coerciveW either.
66. Nozick, This point is not limited to coercionE claims. note 1, at 447.
67. See, e.g., Wertheimer, This point is not limited to coercionE claims. note 1 note 2, at 209 n.27; Haksar, This point is not limited to coercionE claims. note 1 note 2, at 72.
68. The so-called “paradox of blackmail” has spawned a substantial literature of its own. For representative contributions, see Symposium: Blackmail, 141 U. PENN. L. REV. 1565-1989 (1993). For my views on the subject, see Mitchell N. Berman, The Evidentiary Theory of Blackmail: Taking Motives Seriously, 65 U. CHI. L. REV. 795 (1998), where the remarks I offer in the text about “garden-variety” and “crime-exposure” blackmail are further developed.
69. Nozick, The so-called “paradox of blackmail” has spawned a substantial literature of its own. note 1, at 452.
70. Zimmerman, Id. note 2, at 134.
71. Adapted from Lyons, Id. note 2 note 15, at 406.
72. Adapted from Lyons, Adapted from Lyons note 2, at 427.
73. Wertheimer, Adapted from Lyons note 2, at 214.
74. Frankfurt, Adapted from Lyons note 2 note 2, at 75.