posted by Frank Pasquale
Scott Greenfield of Simple Justice mentions a fascinating case out of New Hampshire, where a lawyer crusading for justice in haircut pricing found himself on the wrong end of a “misdemeanor theft by extortion” jury verdict. The jury apparently found it implausible that the lawyer, a man, was as mentally anguished by the disparity as his demand letter claimed. Greenfield asks the following:
Where do we draw the line? People often feel the “lawyer letter,” that demand that you pay money “or else” or stop doing something “or else,” is extortionate. After all, the express threat is “pay me or pay to go to court and then pay me.” There’s certainly something extortionate there.
The question deepens when it’s no longer a matter of threatening to take someone to court if they don’t settle a claim, but when it reaches the point of becoming a crime. Does it turn on the lawyer’s good faith? Does it turn on whether the claim has a reasonable basis in law?
These strike me as the right questions to ask. I share Greenfield’s sense of unease at an extortion claim here, though what strikes me as a more appropriate remedy (100 hours of pro bono service for those afflicted by similar letters?) might be considered more severe by some. I’ll mention some more provocative thoughts on the nature of coercion below the fold. . . . .
I’m still working my way through the works of Robert Lee Hale, the great legal realist who helped lay the theoretical foundations for the New Deal. He tries to show the universality of coercive force in daily life. For example, in one of his leading essays, Coercion and Distribution in a Supposedly Non-Coercive State, he states:
If an act is called “coercion” when, and only when, one submits to demands in order to prevent another from violating a legal duty, then every legal system by very definition forbids the private exercise of coercion–it is not coercion unless the law does forbid it. And no action which the law forbids, and which could be used as a means of influencing another, can fail to be coercion–again by definition. Hence it would be idle to discuss whether any particular legal system forbids private coercion.
[I]t seems better, in using the word “coercion”, to use it in a sense which involved no moral judgment. But popular feeling sometimes makes another distinction. If I plan to do an act or to leave something undone for no other purpose than to induce payment, that might be conceded to be a “threat.” But if I plan to do a perfectly lawful act for my own good, or to abstain from working for another because I prefer to do something else with my time, then I take payment for changing my course of conduct in either respect, it would not be called a threat.
[Ultimately,] the income of each person in the community depends on the relative strength of his power of coercion, offensive and defensive. . . . In fact it appears that what [is often called] the “productivity” of each factor means no more nor less than this coercive power.. . . . Not only does the law of property secure for the owners of factories their labor; it also secures for them the revenue derived from the customers. The law compels people to desist from consuming the products of the owner’s plant, except with his consent; and he will not consent unless they pay him money. They can escape, of course, by going without the product. But that does not prevent the payment being compulsory, any more than it prevents the payment of the government tax on tobacco from being compulsory. The penalty for failure to pay, in each case, may be light, but it is sufficient to compel obedience in all those cases where the consumer buys rather than go without.
Hale may take things too far; if coercion is everywhere on his account it may well be nowhere in others. (It’s no surprise that Duncan Kennedy’s article “The Stakes of Law” connects Hale and Foucault, and the latter was critiqued by Charles Taylor (in “Foucault on Freedom and Truth”) for seeing the exercise of power in so many situations that he essentially rendered the concept meaningless.). Nevertheless, the recent extortion ruling that Greenfield mentions shows that an expansive concept of coercion may be taking root in popular consciousness. The real question is whether lawyers should be its target, or groups with far more effective power to set the “rules of the game.”