Andrew Jensen Kerr (South Texas College of Law Houston), A Societal Reliance Theory of Criminal Duress, 19 N.Y.U. J.L. & Liberty 306 (2026) on SSRN. Here is the abstract:
Criminal duress is puzzling in that fundamental values related to reliance and fair warning are inapposite to excuses like duress. We guard against fraud and strategic behavior, and for this reason, we insert the moral hazard condition that denies the availability of duress to those who consciously place themselves in criminogenic situations, such as by joining a gang. My Article underlines the expressive dimension of duress provisions. Their true audience is for all of us law-abiding individuals who never expect to become acquainted with the machinery of the criminal law. The availability of duress provides us the Hartian life-planning benefits of being able to invest in education, or a career, or a family without having to worry about the possibility of prison time. This insurance function of duress, along with its corollary moral hazard provision, speaks to its societal value. Still, even if it is unclear if we want us law-abiding individuals to consciously rely on or even read our codified duress provisions or case law, it is still essential to the integrity of our justice system that these provisions or common law rules acknowledge collective values of life-planning and the moral agnosticism of acquaintanceship in Anglo-American jurisprudence that underlines interpersonal interaction.
For these reasons, I argue that those federal circuit rules and state codes that still bar duress to those who merely negligently expose themselves to criminal coercion be revised. Duress remains uncodified in federal criminal law. In Dixon, the Supreme Court studied the common law origins of the defense in terms of whether the defendant possesses the burden of proof in making a duress claim. Unfortunately, its reference to a negligence moral hazard bar remains viable as federal common law precedent and continues to inform federal court tests of the availability of duress to those who initiate or remain in associations vulnerable to coercion.
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