Civil Extortion: A New Formula for Nonviolent Duress

By: William M. Kelly

I. Introduction

Under the Louisiana Civil Code, when a person uses threats to coerce someone into entering a contract, courts will only rescind that contract for duress if the person threatened to do something unlawful.[1] Yet, under the Louisiana Criminal Code, a person who threatens to do a lawful but harmful act with the intent to coerce someone into giving away his property is guilty of extortion.[2] Hence, in Louisiana, the same coercive contract can constitute criminal extortion but fall short of civil duress.[3] Further, one guilty of criminal extortion may be entitled to judicial enforcement of the contract that landed him in prison.[4] This contradiction highlights a discrepancy in Louisiana law—where a contract formed by unlawful coercion may result in criminal guilt but not civil liability.

More importantly, the current codal scheme on duress denies contractual relief to victims of blackmail—which ordinarily involves threats of lawful but damaging behavior and is prohibited in Louisiana as a form of extortion.[5] In addition to blackmail (and for the same reason that it involves coercion by threats to do harmful but lawful acts), Louisiana’s duress articles inadequately protect victims of economic duress.[6]

Duress and Extortion

Without expressly defining duress, the Louisiana Civil Code disallows its use in the creation of contracts.[7] Rather, it simply provides that a party’s consent to enter a contract is invalid if obtained by duress—provided that the degree of duress exerted is sufficient to cause a “reasonable fear of unjust and considerable injury.”[8] The current article restates the principles of its prior version without substantive change.[9] In restating the rule, the drafters used “duress” to replace “violence or threats.”[10] Thus, the Code holds invalid any party’s consent that was coerced by violence or threats that cause reasonable fear of unjust and considerable injury.

In cases of duress, a person sacrifices some valuable interest to satisfy a more immediate and urgent need.[11] As a result, the soundness of that person’s consent may be called into question. The validity of any party’s consent depends on the general autonomy of his will, and true autonomy requires a certain degree of freedom from outside constraints.[12] Some level of outside influence on a person’s decision-making is always to be expected, but consent is only operational when it is informed by reason, a cause, and the absence of intervening circumstances that “frustrate its intention.”[13] Although a person can be compelled to acquiesce to an extorter’s demand, his consent would be impaired by the defect of duress, and it cannot produce legal effects.[14]

Imagine an armed bandit who points a gun at a victim and shouts: “Your money or your life!” In that case, the victim is technically free to choose between two outcomes—giving away his money or losing his life. However, if he agrees to give the bandit his money, his will was so constrained by his fear of harm that he cannot be said to have exercised free will in his decision to agree. This is a classic example of duress: where a party’s consent is vitiated by fear arising from “violence or threats.”[15] This general scenario is what the early Roman analysts of duress had in mind when they first created the doctrine.

Today, Louisiana does not require the element of violence to vitiate a party’s consent for duress. The Code recognizes duress arising from nonviolent threats, provided the threatened injury is “unjust and considerable.”[16] However, article 1962 restricts the availability of duress by prescribing that a threat to do a lawful act cannot constitute duress.[17] Under this rule, demanding compensation for not carrying out a threat is a valid offer if the threatener could lawfully carry out the threatened act.[18] In other words, if an act is independently lawful, the threat of it cannot constitute duress.[19] Article 1962 assesses the necessary unjustness of a threatened injury, but in doing so, it incorrectly focuses on the lawfulness of the act being threatened and neglects the potential unlawfulness of the threat itself.

Although one could argue that duress is simply the private law counterpart to criminal extortion, Louisiana’s criminal law of extortion is more flexible and covers a broader range of conduct.[20] In Louisiana, any person who communicates a threat of harm to induce an undue performance from the listener is guilty of extortion, even if he could have carried out the threatened act lawfully.[21] The threat of a lawful act suffices to constitute extortion if the threatener demands consideration not owed to him.[22] The criminal wrongfulness of extortion is founded in the threatener’s intent to coerce a payment or performance that he could not have secured through lawful means.[23]

The dissonance between Louisiana’s civil law of duress and its criminal law of extortion indicates that there is a flaw in the statutory scheme. As the respective rules are written, a person’s conduct could conform to the Civil Code’s principles while simultaneously violating the related rules of the criminal code. This is strange because analogous civil and criminal law doctrines ordinarily err in the other direction. In the law of negligence, for example, civil liability requires a showing that a defendant failed to exercise reasonable care. Contrast this with criminal liability for negligence, where a defendant’s conduct must fall so grossly below the standard of reasonable care that it reflects a reckless disregard for the safety of others.[24]

The requirement that a threatened act be unlawful serves little purpose in the classic case of duress by violent threats. Physical violence is inherently unlawful, so the threat of it satisfies that rule categorically. However, for a threat of a nonviolent act to constitute duress, a plaintiff must prove that the object of that threat, if carried out, would be unlawful.[25] The problem with this analysis is that it fails to address threats that are unlawful in themselves, including those that amount to criminal extortion despite the isolated lawfulness of the threat’s object.

This Comment will attempt to highlight the distinction between violent and nonviolent duress, and argue that the Louisiana Civil Code insufficiently governs disputes involving the latter. First, it will discuss the history of civil duress and its relationship to criminal law. Then, moving to the modern era, it will compare the application nonviolent duress as a vice of consent to the modern prosecution of extortion as a crime. Finally, it will advocate for reevaluating the current civil law of duress to realign it with the modern criminal law of extortion.[26]

II. The History and Development of Civilian Duress

A. Roman Law Origins

As a legal concept, civil duress was a product of necessity, arising in response to the political upheaval of the late Roman Republic.[27] In the first century B.C.E., the Republic was engulfed in a fierce civil war.[28] A self-proclaimed Roman dictator executed thousands of people in a “Stalinesque purge” and freed their slaves to enlist them in his private army.[29] Many of these newly freed men rampaged across the Roman countryside and forced innocent people to give up their land and possessions.[30] At the same time, taking advantage of the political instability, armed mobs committed public acts of brutality to dictate the outcomes of elections and force legislation through the assembly.[31] Politicians employed gangs to patrol the streets and intimidate political rivals, and high-ranking public officials were lynched in the streets.[32] In the surrounding provinces, corrupt governors took advantage of Rome’s instability by seizing property and exploiting fearful citizens for bribes.[33]

In this political chaos, extortion by violence was commonplace.[34] But, at the time, contracts formed by physical compulsion were enforceable, and no degree of violent coercion vitiated a party’s consent.[35] Ancient Roman law was primarily concerned with formalities and “seldom looked behind the external manifestations of a legal act.”[36] Therefore, a person who agreed to give away his property at the point of a spear was not entitled to judicial relief. The victim’s will to enter the contract was overborne by his will to avoid being killed, but according to contemporary Roman law, “he willed nevertheless.”[37]

Eventually, after the civic turbulence subsided, Rome’s surviving leaders adopted a policy of treating any “lawless and extortionate behavior” with severe prejudice.[38] They developed a series of legal innovations to combat extortion and roll back the anarchy that “had become a way of life” in the Republic.[39] A series of new criminal actions allowed Roman courts to prosecute provincial governors for extortion, punish bandits for robbery, and deter vigilantes from collecting perceived debts by criminal means.[40] Thus, the taking of property through force and fear was publicly criminalized, but private law still lacked a means of relieving citizens who had been compelled to give up their property.[41]

Perceiving the injustice of enforcing the multitude of compelled contracts, the Roman praetors began to express that “certain principles of loyalty and honesty [should be] observed in the conclusion of contracts.”[42] Around the year 79 B.C.E., one such praetor named Octavius formulated a new remedy that would allow a victim of extortion to reclaim what he had been compelled to give away.[43] This provision was known as the formula Octaviana; two centuries later, its most famous formulation emerged as: “What is done through fear I will not uphold.”[44]

The Formula Octaviana

Scholars have long debated over Octavius’ original intention in formulating relief for metus causa contracts—those “caused by fear.”[45] The traditional understanding is that the praetor disapproved of juridical acts that were caused by fear.[46] Some jurists have argued that the formula focused on the extortionate conduct and the offender’s intent to cause fear.[47] A more recent interpretation asserts more broadly that Octavius sought to invalidate all acquisitions made “as a consequence of fear,” regardless of whether the party who profited was responsible for the fear or simply took advantage of it.[48] The peculiar remedies arising from a successful metus causa action only add to the confusion of the formula’s competing interpretations. The action was penal in nature and required the guilty party to pay a penalty four-fold the value of the property extorted.[49] The defendant was sometimes the extorter, but sometimes the person on trial was a subsequent purchaser of the extorted goods, who may have been unaware of the extortion.[50]

The Application of Roman Duress

Despite the praetors’ progress toward protecting autonomy in private contracts, the action for metus causa was criminal in nature.[51] The contractual relief granted to the victims was incidental to the punitive sanctions already being imposed on guilty parties for their criminal conduct.[52] A successful action for metus causa did not even annul the contract.[53] Rather than restore the parties to their prior position, the courts instead relieved victims by ordering the guilty party to pay reparations, reflecting “the color of indemnification for a delict.”[54]

To justify this relief, a victim must have experienced a level of fear sufficient to overcome “a man of thorough firmness and character,”[55] or “the most constant man.”[56] Additionally, the type of fear necessary for a party’s relief was strictly limited to the fear of physical violence.[57] The Roman law held “that, for duress to exist, there must be a danger to personal safety or of bodily harm.”[58] This limited application of the law of duress is unlike our modern understanding of the concept, but the doctrine of duress was eventually broadened and adapted by Rome’s civilian successors.[59]

B. Developments in French Law

Prior to the enactment of the French Civil Code, much of the territory within France was directly governed by Roman civil law, as handed down by Justinian’s Digest.[60] Eventually, France codified its customs and succeeded Rome in the conveyance of the civil law.[61]

Duress for Threats of Economic Injury

The French Civil Code marked a significant advance beyond the duress doctrine of its time.[62] Specifically, article 1112 recognized a form of duress established by a person’s fear of “exposing his person or his fortune to a considerable and present injury.”[63] In other words, it extended codal protection to parties who were coerced by threats of economic injury. The new provision also discarded the earlier heightened standard of “the most constant man” and held its plaintiffs to the lesser “reasonable person” standard.”[64] Further, it required courts to consider such intervening factors as the “age, sex, and condition of the persons” involved to determine whether the pressure exerted was sufficient to vitiate a similar plaintiff’s consent.[65] Thus, the Napoleonic conception of duress pursued a broader purpose than that intended by the Romans. Beyond bodily protection or the prevention of private violence, the new approach sought to secure the “fair exchange of values in private contracts.”[66]

Duress by Adverse Circumstances

As the doctrine developed, French courts eventually acknowledged the possibility of duress arising from economic pressure that neither party created. The courts characterized this problem as état de nécessité, or “state of necessity,” where one party is constrained by adverse circumstances unrelated to the other party.[67] This new form of duress arose from a controversy surrounding a 19th century shipwreck.[68]

A French vessel ran aground and was taking damage from the impact of the waves.[69] A nearby tugboat operator, knowing the shipwrecked captain was in no position to haggle, offered to save the ship for a fee of more than four times the going rate.[70] The captain tried and failed to negotiate a lower price.[71] Eventually, fearing the total loss of his ship, the captain accepted the offer.[72] Later, when the ship was safe and in the port, the captain refused to pay the excessive sum.[73] The tugboat operator sued to enforce their agreement, but the captain successfully argued duress.[74]

Prior to this decision, French jurisprudence only understood duress as arising from “acts of man.”[75] However, since consent could be vitiated by duress exerted by a third party, it logically followed that consent could be vitiated by natural, impersonal forces that put a party in jeopardy.[76] In such cases, courts reasoned that consent is “not free, but given under the influence of fear inspired by a real, considerable and present evil.”[77] As a policy, upholding such contracts would sanction behavior that takes unfair advantage of another person’s misfortune.[78] Since this decision, French courts have repeatedly intervened in contracts arising from one party’s state of necessity.[79]

Constraint Must Be Illegitimate

Despite liberally expanding the law of duress, French law continues to require that duress be the product of an illegitimate constraint.[80] Threatening to exercise a right, although constraining on the other party’s will, is generally legitimate and does not constitute duress.[81] Hence, an employer who agrees to increase wages because his employees threatened to go on strike is bound by the agreement because the employees were only threatening to exercise a right.[82]

More commonly, this exception involves threats of legal action, such as a creditor who demands security in exchange for not taking legal action against his debtor. In that case, the debtor cannot rescind the security contract for duress because the creditor had a legal right to take the action he threatened.[83] However, this exception does not apply to any exercise of a right that amounts to an abuse of right.[84] In the context of threatened legal action, there must be a direct connection between the right one threatens to exercise and the performance he demands.[85] For example, a creditor can threaten to take legal action against his debtor to induce a performance of him, but he cannot threaten to bring the action to induce a performance by the debtor’s relatives.[86] To do so would be illegitimate.

Louisiana Civil Code Adopts French Articles

Louisiana’s current system of civil law succeeded indirectly from Rome by way of France.[87] As described by one scholar, the Civil Code is based “on Roman law, modeled after the great Code Napoleon, enriched with the experiences of at least twenty-seven centuries, and mellowed by American principles and traditions.”[88] Thus, our private law is a culmination of the civilian cultures that preceded it.

The penal roots of duress remain evident in the Louisiana Civil Code today.[89] For instance, when a party successfully pleads duress, the Code authorizes heightened, disciplinary damages in the form of attorney fees.[90] Also, relief under a claim of duress is only available when the person exerting duress threatens to commit an unlawful act and causes unjust injury.[91] Thus, wrongdoing is indisputably necessary for a victim of duress to obtain relief.[92] However, the articles governing duress provide an avenue to relief that need not stem from the wrongdoing of either party.[93] Specifically, the exertion of duress that vitiates consent may be external to the contract.[94] If a third person exerts duress on one party, any party to the contract who is not complicit in the duress may recover damages and attorney fees from the third person who exerted it.[95] This suggests that the legislature intended a more objective approach to duress than simply punishing the bad faith of the other party. This view places a greater emphasis on the victim’s impaired will, regardless of who constrained it.[96]

III. The Louisiana Law

A. Duress in the Civil Code

In defining the nature of duress, the Civil Code copies the liberal breadth established by the French. Specifically, the Code adopted France’s allowance for duress by threats of nonviolent conduct—a significant deviation from Rome’s original policy.[97] To properly plead duress in Louisiana, a party must prove that someone coerced his consent by threatening unjust and considerable injury to his person, property, or reputation.[98] Thus, rescission of the contract is not predicated on the prospect of violence. Nonviolent threats can invalidate consent with theoretically the same force as threats of physical harm.

However, unlike cases of violent duress where the constituent acts are inherently unlawful, a party who pleads nonviolent duress must satisfy the statutory threshold of article 1962. The party must prove that the act he sought to prevent by capitulating to the threat was unlawful in itself.[99] A threat to do a lawful act cannot constitute duress, regardless of the kind of
fear it causes or the extent to which it constrains the party’s free will.[100]

Economic Duress: Threats Against Property

Economic duress, the “less malevolent cousin” of the traditional form, involves coercion by threats of financial harm.[101] Imagine a carpenter hired by a general contractor to perform the finishing touches on a large construction project. The carpenter knows that the overall project is on a deadline and the contractor stands to lose a lot of money if he fails to meet it. Knowing also that the contractor cannot meet the deadline without his contribution, the carpenter threatens to breach his agreement unless the contractor agrees to increase the carpenter’s fee. Theoretically, if the contractor yields to the demand and agrees to increase the fee, he can rescind that modification because his consent was induced by economic duress.[102]

Louisiana courts have acknowledged the possibility of vitiating a party’s consent for economic duress, but to date, no Louisiana court has ruled in favor of one making that claim.[103] In defining the scope of duress, article 1959 allows the possibility for duress arising from threats against one’s property or economic interest.[104] However, article 1962 presents a significant stumbling block for plaintiffs pleading economic duress by providing that threats of lawful conduct cannot constitute duress.[105] Unlike physical harm, acts that cause economic harm are not inherently unlawful.[106] Hence, threats of economic injury are subject to a screening process that is not at play in cases of traditional duress involving violence.

The economic interest of any participant in a market economy is constantly under some level of constraint.[107] The parties to virtually every commercial contract act to preserve their economic interest. Consequently, in cases of economic threats, the wrongfulness of a threatened injury must be founded in the particular way in which the injury is threatened.[108] To make this determination, the court must locate the line between hard-bargaining and unlawful coercion. In Louisiana, a party’s financial woe or economic necessity does not constitute economic duress unless one party created the difficulty to induce the other party’s assent.[109] To prevail in a claim of economic duress, a plaintiff must show that the other party acted in a manner designed to put him in financial jeopardy for the purpose of making unjustified demands.[110]

In Wolf v. Louisiana State Racing Commission, the Louisiana Supreme Court held that a party’s fear of economic deprivation may suffice to vitiate his consent.[111] The Fair Grounds, a horse racetrack, threatened to ban its jockeys from racing unless they agreed to waive their rights to sue the racetrack in tort for any injuries sustained on the job.[112] Fearing the loss of their livelihood, the jockeys signed under protest but immediately brought suit to invalidate the waivers.[113] On review, the Louisiana Supreme Court agreed with the jockeys that their fear of economic deprivation was one form of “fear” that could establish duress.[114] But in holding the waiver unenforceable, the court relied on the Fair Grounds’ “superior bargaining strength” and the jockeys’ “economic vulnerability.” [115]

Citing article 1962, the court acknowledged that the threat of a lawful act cannot constitute duress.[116] However, it found that the Fair Grounds’ threat to exclude the jockeys was an “improper threat” because the Fair Grounds lacked the authority to unilaterally establish conditions on a jockey’s right to participate in race meetings.[117] Under state law, that power belongs to the Louisiana State Racing Commission, and the Fair Grounds could not lawfully have excluded the jockeys from the race.[118] Therefore, the threat to bar the jockeys from participating was a threat to carry out an unlawful act.[119]

Despite Wolf’s holding that economic fear falls within the scope of duress, subsequent decisions have been reluctant to find duress by economic pressure.[120] In Pellerin Construction, Inc. v. Witco Corp.,[121] an industrial contractor was managing the relocation of its client’s chemical plant.[122] The contractor hired a subcontractor to provide mechanical services for the project.[123] In its contract, the subcontractor agreed to a lump-sum fee and to assume the risk of any project delays.[124] As work progressed, the project did experience significant delays, which the subcontractor later alleged were caused by gross negligence and active interference by both the contractor and the chemical plant.[125] As a result of these delays, the subcontractor incurred nearly $1 million in expenses.[126]

To continue the work, the parties executed a series of contract modifications pushing back the subcontractor’s completion date and increasing its compensation.[127] But in each modification, the subcontractor had to agree to release any and all claims for additional compensation due to the chemical plant’s disruption of the schedule.[128] After the project was completed, the subcontractor sued both the plant and the contractor for damages arising from their gross negligence and breach.[129] The subcontractor argued that the contract modifications releasing the chemical plant’s liability should be struck down because they were products of the subcontractor’s economic duress.[130]

The court upheld the modifications, reasoning that the subcontractor failed to establish an “improper threat” by the defendant.[131] Despite the undoubted relationship between the subcontractor’s financial constraints and the project delays, the court found that the subcontractor failed to prove that the defendants intentionally orchestrated the hardship to make unjustified demands.[132] The court did not discuss whether delaying the project would have constituted an “unlawful act,” whose threat would be necessary establish duress.[133] This is likely due to the subcontractor’s failure to establish any threats or intentional acts by the defendant at all.

Blackmail: Threats Against Reputation

Another form of nonviolent duress may arise from threats against a party’s reputation.[134] In theory, courts may rescind a contract if one party’s consent was induced by his reasonable fear that his reputation would suffer unjust and considerable injury.[135] Thus, a person who demands performance from another in exchange for not exposing his embarrassing secrets exerts a form of duress—one expressly proscribed by the Civil Code and known colloquially as “blackmail.” However, since threats of lawful conduct cannot constitute duress in Louisiana, this allowance for reputational duress is largely academic.

Blackmail is the leveraging of damaging or embarrassing information with the intent to coerce a performance not owed to the blackmailer.[136] Assume that the damaging information is truthful and was lawfully obtained. Revealing it to the public would be entirely lawful. Hence, threatening the same would amount to a threat of lawful conduct, which cannot constitute duress as a matter of law.[137] The threat of lawful conduct coupled with a demand for payment constitutes blackmail.[138] However, under article 1962, Louisiana courts have demonstrated that blackmail does not amount to duress.

Louisiana Courts Upholding Blackmail Contracts Against Claims of Duress

In Zamjahn v. Zamjahn, the Louisiana Fifth Circuit decided a duress claim involving a threat against a party’s reputation.[139] The facts of this case resemble the classic case of blackmail. A husband and wife were undergoing a contentious divorce and having difficulty dividing their community assets.[140] To settle ownership of a rental house they owned together, the wife proposed that the husband donate his interest to her and agree to pay the mortgage for five years, as well as maintenance and utilities on their matrimonial home.[141] The husband agreed to the settlement but alleged in court that he only did so because his wife threatened to tell their children about the true cause of their divorce—her discovery of his use of “adult” websites.[142] Finding that the husband donated his interest under duress, the trial judge rescinded the donation and ordered the wife to pay attorney fees.[143] On review, however, the Fifth Circuit reversed the ruling.[144] The court reasoned that a threat to do a lawful act does not constitute duress, and thus, “any threats by [the wife] to tell [their] children why the parties separated, did not rise to the level of duress necessary to invalidate the donation.”[145]

Disturbingly similar to the case above, the facts in Autin v. Autin involve another divorce proceeding that resulted in blackmail.[146] In this case, however, the roles are reversed. A wealthy husband filed for divorce after discovering his wife’s extramarital affair.[147] The wife suffered from depression and was hospitalized after a drug overdose while the husband sought to quickly settle the division of their community property.[148] He visited her in the hospital and offered her a check for $1,000,000.[149] She initially refused, and he allegedly threatened to reduce the offer by $100,000 per day and to publicly reveal her adultery.[150] The wife accepted the offer, and later sought to rescind the agreement for duress.[151]

The court held that, even if every allegation against the husband was taken as true, the wife was not entitled to rescind the settlement because the husband threatened only lawful acts.[152] He was entitled to reduce the amount of his offer, and he “had the right to make her adultery public.”[153] Thus, citing article 1962, the court held that the husband’s threats could not constitute duress.[154]

In both of the above cases, the court refused to entertain duress claims because of the lawfulness of the acts being threatened against the respective plaintiffs. The wife in Zamjahn had a right to tell her children about their father’s embarrassing browsing history. The husband in Autin had a right to publicize his wife’s adultery. But, although either spouse could have carried out his or her threat without breaking the law, both defendants broke the law when they committed blackmail, which Louisiana has long prohibited as a form of extortion.[155] Thus, the methods of inducing consent were illegally coercive, only not in a way that would entitle the victims to relief from the contract.

“The Blackmail Paradox”

The moral contradiction in blackmail has incited wide scholarly debate seeking to define the basis for blackmail’s wrongfulness.[156] In generic terms, blackmail is the combination of “an otherwise legal threat to reveal” and “an otherwise legal demand for compensation not to reveal.”[157] Though it exists in many forms, the paradigmatic case of blackmail involves the lawful, opportunistic discovery of damaging information by one who demands payment on threat of exposing it.[158]

The paradoxical nature of blackmail is relevant to the discussion of nonviolent duress and the Civil Code’s undue disregard for threats of lawful conduct. Specifically, applying the Code’s duress principles to blackmail transactions highlights the inadequacy of an analysis that focuses solely on the lawfulness of a threatened act. Broken down into its component parts, neither the demand for the property nor the threat to perform the act would be unlawful by itself. Either component—the threat or the demand—could be carried out lawfully. But, when a person combines them, using the latter to induce the former, the confluence results in its own unlawfulness. Blackmail tends to prove two things: two rights can make a wrong, and a broader analysis is crucial to understanding the wrongfulness of a coercive demand.

A person who stumbles across sensitive but truthful information about a neighbor has no duty to keep his neighbor’s secret. Further, that neighbor could lawfully volunteer to pay the informed person in exchange for his silence. The difference is that in the second case, the blackmailer coerces a transfer of property that would otherwise be non-consensual, and the blackmailer’s sole claim to the property rests on his leveraging of the information.[159]

Rather than the cause of the blackmailer, the wrongful constraint on a blackmailed party’s will is likely what makes us consider the transaction wrongful. Imagine a scenario where a person lawfully learns of his neighbor’s embarrassing secret and simply intends to publicize it. Then imagine that the neighbor learns of his intention and offers the person money in exchange for agreeing to a non-disclosure contract. This seems like a perfectly aboveboard transaction, yet it only differs from blackmail in that it was proposed by the other party. Still, the neighbor is disposing of his property for the sole cause of preventing harm to his reputation, and the person keeping the secret is profiting from his neighbor’s misfortune.

Legislative History of Article 1962

As previously illustrated, article 1962 of the Louisiana Civil Code significantly limits the applicability of duress by excluding threats of lawful conduct.[160] Reflecting the French law that preceded it, the article provides an exception: a person who threatens acts “lawful in appearance only” may establish a duress claim.[161] The current iteration of the article does not purport to change the law but simply restates its more long-winded parent provisions, articles 1856 and 1857 of the Civil Code of 1870.[162] Where the current version errs on the side of brevity, the old articles more thoroughly explained the legislative intent.

Old Article 1856 provided that a legal constraint, or a threat to do what one “had a right to do,” does not vitiate consent.[163] To illustrate, the provision explained that “just and legal imprisonment” or legal actions authorized by law could not form the basis of duress.[164] Thus, a lawfully imprisoned debtor who transferred property to secure his freedom could not plead that he acted under the duress of his incarceration. Old Article 1857 clarified that coercive legal proceedings filed for an “unjust and illegal cause,” although disguised in the “mere forms of law,” may vitiate consent.[165] As examples, the article listed baseless arrests, demands for unreasonable bail, or threats of the same.[166] These articles, from which the current version is said to derive without substantive change, appear to be solely focused on abuses of the legal process. This focus is consistent with French law discussed above.

Before adopting the current language of article 1962, the Louisiana State Law Institute weighed other proposals. One version described that duress may result from the threat of taking action that appears lawful but “only conceals an unlawful constraint.”[167] Another version explained the rule as including threats to exercise a right that are solely “intended to obtain an unjust advantage.”[168] Compared to the enacted version, these rejected proposals would have bestowed more discretion on a trial judge deciding a duress claim.

Similarly, the comments following the current version also suggest that a more flexible approach was considered. They state that duress occurs when someone makes an “improper threat” that induces consent.[169] This explanation significantly omits any restrictions as to the source of a threat’s impropriety. Perhaps it intended to include the possibility of lawful threats threatened improperly.

B. Extortion in the Criminal Code

Presently and throughout Louisiana’s history, the concepts of extortion and duress have run parallel to one another. Prior to Louisiana’s enactment of the Criminal Code in 1942, Louisiana courts relied on the common law to define and govern criminal conduct.[170] The state prosecuted extorters using the common law definition of the crime, which expressly included the exertion of duress to obtain another’s property.[171] During this time, courts broadly recognized extortion as the taking of property by force, compulsion, or oppressive means, including threats.[172] Today, employing similar breadth, the Criminal Code defines extortion as the communication a threat of any form of harm with the intent to induce an undue performance from the person to whom the threat is communicated.[173] Thus, in both eras of Louisiana’s criminal law history, the common law and codal regimes, behavior that constituted duress definitionally satisfied the elements of extortion.

Despite its placement within the Code under the subpart entitled “Misappropriation with Violence to the Person,” extortion does not require a violent threat, nor even the threat of an illegal act.[174] Conviction under this statute does not depend on whether the defendant threatened to do something unlawful. Threatening any harmful act for an extortive purpose constitutes extortion, even if the extorter could have carried out the act without breaking the law.

The extortion statute provides a nonexhaustive list of “kinds of threats. . . sufficient to constitute extortion.”[175] After specifying various threats—of acts both lawful and unlawful—the list concludes with a catch-all and proscribes the “threat to do any other harm.”[176] Thus, under Louisiana law, a person who threatens any form of harm on another with the intent to coerce any undue performance is guilty of extortion.[177] Moreover, one convicted of extortion will serve a mandatory prison sentence of at least one year, and at most fifteen years at hard labor.[178]

State v. Daniels: An Implicit Threat of Psychological Harm

In State v. Daniels, the Louisiana First Circuit Court of Appeal showcased the remarkable flexibility of the extortion provision.[179] The defendant in Daniels contacted the father of a young woman who had been killed in an unsolved murder.[180] In an anonymous letter, the defendant claimed to know the identity of the daughter’s murderer, and he demanded money in exchange for providing it to the father.[181] The letter contained details of the murder not available to the public, so the father believed the offer to be credible.[182] During an arranged conversation at a payphone, the defendant told the father to leave $30,000 at a particular “drop point” and ordered him not to contact the police.[183] But, after the father placed the money as instructed, the defendant did not pick it up.[184]

Later, the defendant contacted the father again, stating his belief that the police were waiting to arrest him at the drop point.[185] The defendant warned the father that he would never learn the identity of his daughter’s murderer if the father involved the police in their exchange.[186] The defendant then increased the price and arranged a second location.[187] There, police officers arrested the defendant as he tried to retrieve the money.[188]

A jury found the defendant guilty of extortion and sentenced him to thirty years’ incarceration as a habitual offender.[189] On appeal, the defendant argued that the state failed to prove his specific intent to commit extortion.[190] In rejecting his argument, the First Circuit relied on the extortion provision’s statutory catch-all.[191] The court held that the defendant’s “threat to cut off communication” and withhold the identity of the daughter’s murder constituted “a threat to do psychological harm to the victim.”[192] Thus, the court reasoned that the defendant intentionally communicated a threat of harm to obtain the father’s money.[193]

In Daniels, the defendant’s threat—not to provide a father with the name of his daughter’s killer—was a threat to do a lawful act. In Louisiana, a person with information about a felony has no duty to report it.[194] Thus, the defendant could lawfully have followed through on his threat and disappeared without revealing the identity of the killer. Despite this, the court in Daniels held that the defendant’s threat to exercise his right not to report the perpetrator constituted extortion when communicated in connection with a demand for the father’s money.[195]

Federal Extortion: Proscribing the Wrongful Use of an Otherwise Lawful Threat

In addition to the Criminal Code, federal criminal law also governs the conduct of Louisiana residents and prohibits extortion using similar statutory language.[196] Specifically, the Hobbs Act defines extortion broadly to include the wrongful use of someone’s fear for the purpose of inducing his consent to transfer property.[197] Like in Louisiana, threats of physical violence are not necessary to prove an extortion charge in federal court.[198] A victim may be extorted by his fear of economic harm, including harm that the threatener could have otherwise lawfully inflicted.[199]

Likely because of its required nexus to interstate commerce, the federal law’s body of blackmail jurisprudence abounds in comparison to Louisiana’s. Many extortion convictions under federal law fit the model of the classic blackmail transaction, including the following two examples. In both cases, the courts found that the defendants committed extortion by threatening to do harmful but lawful acts while demanding undue payment.[200]

In the first case, a beef salesman demanded money from the cattle rancher that employed him.[201] The salesman told the rancher that if he did not pay what he demanded, the salesman would inform their customers that, despite the rancher’s misrepresentations of the quality of his cattle, the beef they had been purchasing was not “grass-fed.”[202] Although the salesman had the right—and arguably the moral duty—to inform the customers of the continuing fraud, the court held that threatening to do so for the purpose of coercing an undue payment constituted extortion.[203] Thus, the salesman’s threat was wrongful because of its intended use—to obtain property not owed to him—and not because of the act he threatened to do.[204]

In another case, the Church of Scientology launched an investigation to gather damaging information to defame and discredit a lawyer who had spoken out against the church.[205] In furtherance of that end, the church paid a man who agreed to provide a false, incriminating statement about the lawyer.[206] But, after being paid, the man demanded more money from the church.[207] He threatened to call and inform the lawyer of the church’s plot if the church did not meet his demand.[208] A criminal court found him guilty of extorting the Church of Scientology.[209] Although the man only threatened to do a lawful act, the court reasoned that the man’s intent in communicating the threat was to coerce the church into making a payment it did not owe.[210]

Imagine the victims from the above transactions were now civil plaintiffs in Louisiana seeking to rescind their contracts for duress and regain their extorted property. Like the blackmailed spouses discussed earlier, neither victim would be entitled to contractual relief under a claim of duress. As a matter of law, neither act of extortion could constitute duress because the defendants only threatened to do acts that were lawful in themselves.[211] Their convictions arose from threats of lawful conduct, which article 1962 bars from consideration as grounds for duress.[212]

Under federal criminal law, a threat of lawful conduct may constitute extortion “when employed to achieve a wrongful purpose,” such as obtaining property to which the threatener has no rightful claim.[213] Rather than asking whether the threatened act was lawful, the pertinent question in an extortion prosecution is whether the defendant had a rightful claim to the property he demanded.[214] Essentially, if the defendant had no rightful claim to the performance he demanded, then it was wrongful to threaten even a lawful act for the purpose of coercing that performance.[215]

IV. This Comment’s Proposal: “Civil Extortion”

The current law of duress provides that a threat cannot vitiate consent unless the act being threatened is itself unlawful. In doing so, the Civil Code incidentally legitimizes what society already condemns in blackmail transactions.[216] The criminal jurisprudence on extortion, as described above, is a more effective rubric for evaluating the wrongfulness of coercive communication. It maintains that a threat is made illegal by its wrongful use and not by the lawfulness of the act it contemplates.[217] This conclusion is relevant considering the conceptual ties that bind extortion with duress. Theoretically, what society deems sufficiently wrongful to justify a criminal conviction, particularly one that carries up to a fifteen-year prison sentence, should be considered an illegitimate means of forming a contract. More specifically, if a particular threat can be deemed extortive, it should constitute duress despite the lawfulness of its object.

The Roman prototype of duress was born as an accessory to the criminal law of its time.[218] For this reason, in assessing the modern shape of duress, it seems particularly appropriate to examine duress’s criminal counterpart. To maintain compatibility and the relationship originally intended, modern duress should mirror the development of criminal law. As discussed above, an otherwise lawful threat may constitute extortion if communicated for a wrongful purpose. This illustrates our public intolerance for persons taking unfair advantage of others, whether the means deployed are violent or simply unjust. Arguably, such conduct violates our expectations of fair commerce and “certain principles of loyalty and honesty” espoused by the praetors.[219]

The bright-line standard of article 1962 is too rigid to properly govern the complex moral nature of duress. To be sure, categorically excluding all threats of lawful conduct is an efficient and decisive method of culling out claims that do not warrant judicial interference. However, a threshold is supposed to serve two purposes—barring unworthy claims and admitting those with merit. Article 1962’s singular focus neglects that a person’s will can be unlawfully coerced by threats of lawful conduct. Louisiana’s body of extortion jurisprudence proves this.

The nuance of economic or nonviolent duress requires a more flexible standard for determining whether the court should intervene to rescind a contract. To focus solely on the legality of the act being threatened is an overly narrow and misplaced analysis. To illustrate how article 1962 inadequately evaluates the wrongfulness of threats, think of the threat as a forest and the act being threatened as the trees. In measuring the wrongfulness of a threat, article 1962 focuses too narrowly on the act being threatened and completely misses the wrongfulness of the threat itself.

A realistic approach to duress must balance the interests of protecting private parties and maintaining the security of contracts.[220] If a subjective defect was the sole factor in evaluating an agreement, any regretful obligor could claim his own imperfect consent and challenge the enforceability of his obligation. If consent could be vitiated independently of the parties’ wrongful conduct, then the personal adverse circumstances of one party would prejudice the other. Thus, the availability of relief under duress should be predicated on the wrongful intent of the threatener and the reasonableness of the plaintiff in falling victim to and complying with the extortion.

A. Duress Should Arise From the Unlawful Use of a Threat

As previously discussed, the primary factor in state and federal extortion prosecutions is the wrongfulness of the defendant’s use of the threat. The analysis surrounds a defendant’s purpose in communicating the threat, not whether he could have carried it out lawfully in the absence of that purpose. To determine whether a defendant wrongfully used a threat, courts primarily consider whether the threatener had some lawful claim to the property he sought to extort.[221] An otherwise lawful threat becomes wrongful if the threatener uses it to force the transfer of property that he knows does not belong to him.[222] In fact, a would-be extorter could neutralize his criminal liability by simply believing himself to be legally entitled to the property.[223]

The injustice of extortion stems from the threatener’s exploitative use of the threat to coerce the transfer of property to which he has no rightful claim. The extorter’s purpose is to criminally constrain and overbear the will of the victim, coercing him to give away property that he would otherwise keep. Logically, if the extorter fails, there will be no transfer of property. But, if he succeeds and induces the victim to assent, the victim’s will is necessarily impaired, as evidenced by his very compliance with the demand.

B. Proposed Language:

The inconsistency addressed in this paper could be resolved by amending article 1962 to reflect a more flexible rule. In determining the types of threats sufficiently wrongful to avail their victim of relief under duress, the law should emulate the broad approach of criminal extortion, where an otherwise legal threat violates the law if communicated for an extortive purpose. It should also follow the persuasive guidance of its current comments, which express that an “improper threat” may establish duress without dissecting it to examine the act being threatened.[224] Finally, it should rethink the rejections of its prior proposals, which would have held that duress can arise from threats of lawful acts “intended to obtain an unjust advantage.”[225]

Combining these concepts and observing the Code’s fondness for brevity, this Comment proposes the following language:

A threat to do a lawful act may constitute duress if communicated to unlawfully coerce a performance.

Adopting this version, or a substantially similar one, would permit courts to analyze threats holistically and vest judges with greater discretion to recognize extortion in its less obvious form. Conduct that amounts to extortion would, by definition, constitute duress. This adjustment could reconcile the current discrepancy between the parallel concepts of extortion and duress. A person should not be subject to criminal liability for conduct not justifying civil remedy. Conversely, one adjudged a victim of extortion in criminal court should not be refused similar acknowledgment when seeking relief in a civil court that imposes a lesser standard of proof. In the interest of internal logic and consistency in law, this current dissonance in Louisiana law demands a reckoning.

  1. . La. Civ. Code Ann. art. 1962 (2019).

  2. . La. Stat. Ann. § 14:66 (2019).

  3. . See La. Civ. Code Ann. art. 1962 (2019); see also La. Stat. Ann. § 14:66 (2019).

  4. . La. Civ. Code Ann. art. 1962 (2019); see also La. Stat. Ann. § 14:66 (2019).

  5. . State v. Felton, 339 So. 2d 797, 800 (La. 1976); see Ronald Joseph Scalise, Jr., Blackmail, Legality, and Liberalism, 74 Tul. L. Rev. 1483 (2000).

  6. . 18 U.S.C. § 1951 (2019).

  7. . La. Civ. Code Ann. art. 1959 (2019).

  8. . Id.

  9. . La. Civ. Code Ann. art. 1959 cmt. (a) (2019).

  10. . La. Civ. Code Ann. art. 1959 cmt. (b) (2019).

  11. . Saul Litvinoff, Vices of Consent, Error, Fraud, Duress and an Epilogue on Lesion, 50 La. L. Rev. 1, 6 (1989).

  12. . Id.

  13. . Id.

  14. . Id.

  15. . La. Civ. Code Ann. art. 1959 cmt. (b) (2019).

  16. . La. Civ. Code Ann. art. 1959 (2019).

  17. . La. Civ. Code Ann. art. 1962 (2019).

  18. . See La. Civ. Code Ann. art. 1962 (2019).

  19. . Id.

  20. . Compare La. Civ. Code Ann. art. 1959 (2019), with La. Stat. Ann. § 14:66 (2019).

  21. . See La. Stat. Ann. § 14:66 (2019).

  22. . State v. Felton, 339 So. 2d 797, 800 (La. 1976) (“The purport of the statute is to prohibit the use of threats to cause the victim to part with his property or to do an act, or refrain from doing an act, to the advantage of the threatener, who could not without the threat otherwise lawfully secure such advantage willingly from the victim.”).

  23. . See id.

  24. . See La. Stat. Ann. § 14:66 (2019); State v. Crawford, 471 So. 2d 778, 780 (La. Ct. App. 2 Cir. 1985).

  25. . See La. Civ. Code Ann. art. 1962 (2019).

  26. . It bears noting that the law of duress requires establishing other such elements as the reasonableness of one’s fear and the absence of available alternatives to complying. These factors fall outside the scope of this Comment, which is focused solely on the wrongfulness of the threat.

  27. . Reinhard Zimmerman, The Law of Obligations: Roman Foundations of the Civilian Tradition 651-52 (1992).

  28. . Graham Glover, Metus in the Roman Law of Obligations, 10 Fundamina 31, 36 (2004)

  29. . Id.

  30. . Id.

  31. . Reinhard Zimmerman, The Law of Obligations: Roman Foundations of the Civilian Tradition 651 (1992).

  32. . Graham Glover, Metus in the Roman Law of Obligations, 10 Fundamina 31, 35 (2004).

  33. . See Reinhard Zimmerman, The Law of Obligations: Roman Foundations of the Civilian Tradition 652 (1992).

  34. . See id.

  35. . See id. at 652-53.

  36. . Jacques E. du Plessis, Compulsion in Roman Law 2 (1997) (unpublished Ph.D. thesis, University of Aberdeen), available at

  37. . Saul Litvinoff, Vices of Consent, Error, Fraud, Duress and an Epilogue on Lesion, 50 La. L. Rev. 1, 7 (1989).

  38. . Graham Glover, Metus in the Roman Law of Obligations, 10 Fundamina 31, 36 (2004).

  39. . Id.

  40. . Id. (describing the creation of the criminal actions of lex Cornelia repetundarum, actio vi bonorum raptorum, and lex Julia de vi privata, respectively).

  41. . Id. at 36-37.

  42. . Saul Litvinoff, Vices of Consent, Error, Fraud, Duress and an Epilogue on Lesion, 50 La. L. Rev. 1, 7 (1989).

  43. . Reinhard Zimmerman, The Law of Obligations: Roman Foundations of the Civilian Tradition 653 (1992).

  44. . “Quod metus causa gestum erit, ratum, non habebo.” Jacques E. du Plessis, Compulsion in Roman Law 1, 7 (1997) (unpublished Ph.D. thesis, University of Aberdeen), available at

  45. . Reinhard Zimmerman, The Law of Obligations: Roman Foundations of the Civilian Tradition, 654 (1992).

  46. . Id.

  47. . Id.

  48. . Id.

  49. . Id. at 655.

  50. . Reinhard Zimmerman, The Law of Obligations: Roman Foundations of the Civilian Tradition, 655 (1992).

  51. . Saul Litvinoff, Vices of Consent, Error, Fraud, Duress and an Epilogue on Lesion, 50 La. L. Rev. 1, 95 (1989).

  52. . Id. at 7.

  53. . Id. at 7-8.

  54. . Id.

  55. . 1 The Digest of Justinian 203-204 (Charles Henry Monro trans., Gaunt, Inc. 1998).

  56. . John P. Dawson, Economic Duress and the Fair Exchange in French and German Law, 11 Tul. L. Rev. 345, 347 (1937).

  57. . Id.

  58. . Id.

  59. . See infra Section III.

  60. . Editor, The Code Napoleon, or the French Civil Code, 1 La. L.J. 1, 15 (1841).

  61. . Id. France has revised its contract law since the developments described above. The changes enacted are outside the scope of this Comment.

  62. . See John P. Dawson, Economic Duress and the Fair Exchange in French and German Law, 11 Tul. L. Rev. 345, 349 (1937).

  63. . Code Civil [C. Civ.] art. 1112 (Fr.) (1804).

  64. . See John P. Dawson, Economic Duress and the Fair Exchange in French and German Law, 11 Tul. L. Rev. 345, 349-50 (1937).

  65. . Id. at 349; accord C. Civ. art. 1112 (Fr.) (1804).

  66. . John P. Dawson, Economic Duress and the Fair Exchange in French and German Law, 11 Tul. L. Rev. 345, 356 (1937).

  67. . See Saul Litvinoff, Vices of Consent, Error, Fraud, Duress and an Epilogue on Lesion, 50 La. L. Rev. 1, 94 (1989).

  68. . Pierre Legrand Jr., Judicial Revision of Contracts in French Law: A Case-Study, 62 Tul. L. Rev. 963, 984 (1988).

  69. . Id.

  70. . Pierre Legrand Jr., Judicial Revision of Contracts in French Law: A Case-Study, 62 Tul. L. Rev. 963, 984 (1988).

  71. . Id.

  72. . Id.

  73. . Id.

  74. . Id.

  75. . Pierre Legrand Jr., Judicial Revision of Contracts in French Law: A Case-Study, 62 Tul. L. Rev. 963, 984 (1988).

  76. . Barry Nicholas, French Law of Contract 103 (1982).

  77. . Id.

  78. . See Saul Litvinoff, Vices of Consent, Error, Fraud, Duress and an Epilogue on Lesion, 50 La. L. Rev. 1, 94 (1989).

  79. . Pierre Legrand Jr., Judicial Revision of Contracts in French Law: A Case-Study, 62 Tul. L. Rev. 963, 985 (1988).

  80. . See Barry Nicholas, French Law of Contract 101 (1982).

  81. . Id.

  82. . Barry Nicholas, French Law of Contract 101 (1982).

  83. . See id.

  84. . Id.

  85. . Id.

  86. . Id. at 101-02.

  87. . See John T. Hood, Jr., History and Development of the Louisiana Civil Code, 33 Tul. L. Rev. 7 (1958).

  88. . Id. at 7.

  89. . See generally La. Civ. Code Ann. arts. 1959, 1962, 1964 (2019).

  90. . La. Civ. Code Ann. art. 1964 (2019); see also Saul Litvinoff, The Law of Obligations § 7.7 in 6 Louisiana Civil Law Treatise 208 (2d ed. 1999) (describing the general association between attorney fees and punitive damages).

  91. . La. Civ. Code Ann. art. 1962 (2019); see La. Civ. Code Ann. art. 1959 (2019).

  92. . See La. Civ. Code Ann. art. 1962 (2019) (“A threat of doing a lawful act or a threat of exercising a right does not constitute duress.”).

  93. . See La. Civ. Code Ann. art. 1961 (2019) (“Consent is vitiated even when duress has been exerted by a third person.”).

  94. . See id.

  95. . See La. Civ. Code Ann. art. 1964 (2019).

  96. . See generally La. Civ. Code Ann. arts. 1961, 1962, 1964 (2019).

  97. . See supra Section II.B.

  98. . La. Civ. Code Ann. art. 1959 (2019).

  99. . See La. Civ. Code Ann. art. 1962 (2019).

  100. . See La. Civ. Code Ann. art. 1962 (2019).

  101. . Dian Tooley-Knoblett & David Gruning, Sales, § 7:8 in 24 Louisiana Civil Law Treatise 334-36 (2012).

  102. . See Austin Instrument, Inc. v. Loral Corp., 272 N.E.2d 533, 534-36 (N.Y. 1971).

  103. . See Dian Tooley-Knoblett & David Gruning, Sales, § 7:8 in 24 Louisiana Civil Law Treatise 334-36 (2012).

  104. . See La. Civ. Code Ann. art. 1959 (2019).

  105. . See La. Civ. Code Ann. art. 1962 (2019).

  106. . See United States v. Clemente, 640 F.2d 1069, 1077 (2d Cir. 1981) (discussing the general lawfulness of economic threats in the context of federal extortion).

  107. . See Dian Tooley-Knoblett & David Gruning, Sales, § 7:8 in 24 Louisiana Civil Law Treatise 334-36 (2012).

  108. . See Dian Tooley-Knoblett & David Gruning, Sales, § 7:8 in 24 Louisiana Civil Law Treatise 334-36 (2012).

  109. . See Pellerin Const., Inc. v. Witco Corp., 169 F. Supp. 2d 568, 580 (E. D. La. 2001) (holding that “in the absence of evidence that the defendants put Pellerin in extremis, so that they could thereafter make unjustified demands on Pellerin, there is no duress.”). This rule reflects a deviation from Louisiana’s law of duress. In cases of duress in general, the remedy is the same regardless of whether the duress was exerted by a party to the contract or a disconnected third person. La. Civ. Code Ann. art. 1961 (2019).

  110. . See Pellerin Const., Inc. v. Witco Corp., 169 F. Supp. 2d 568, 580 (E. D. La. 2001).

  111. . Wolf v. Louisiana State Racing Commission, 545 So. 2d 976 (La. 1989).

  112. . Id. at 977.

  113. . Id.

  114. . Id. at 981.

  115. . Id.

  116. . Wolf v. La. State Racing Comm’n, 545 So. 2d 976, 980 (La. 1989).

  117. . Id. at 980-81.

  118. . Id. at 979 (“[T]he legislative intent is clear that the commission and the stewards are to decide who may participate in racing activities. We do not believe the statutory scheme will allow the Fair Grounds to unilaterally bar from access those licensed by the commission to participate in race meets.”).

  119. . See id. at 980.

  120. . See Sumrall v. Ricoh USA, Inc., No. CIV.A. 15-00061, 2015 WL 4644328, at *7 (M.D. La. Aug. 4, 2015).

  121. . Pellerin Const., Inc. v. Witco Corp., 169 F. Supp. 2d 568 (E. D. La. 2001).

  122. . Id. at 572.

  123. . Id. at 571-72.

  124. . Id. at 572-73.

  125. . Id. at 576.

  126. . Pellerin Const., Inc. v. Witco Corp., 169 F. Supp. 2d 568, 579 (E. D. La. 2001).

  127. . Id. at 574.

  128. . Pellerin Const., Inc. v. Witco Corp., 169 F. Supp. 2d 568, 574 (E. D. La. 2001).

  129. . Id. at 576.

  130. . Id. at 579. Pellerin also alleged the Fluor Daniel fraudulently misrepresented aspects of the work to be conducted. Id. at 580.

  131. . Id. at 579-580.

  132. . Id. at 580.

  133. . See La. Civ. Code Ann. art. 1962 (2019).

  134. . La. Civ. Code Ann. art. 1959 (2019).

  135. . Id.

  136. . See Ronald Joseph Scalise, Jr., Blackmail, Legality, and Liberalism, 74 Tul. L. Rev. 1483, 1485 (2000).

  137. . See La. Civ. Code Ann. art. 1962 (2019).

  138. . See Ronald Joseph Scalise, Jr., Blackmail, Legality, and Liberalism, 74 Tul. L. Rev. 1483, 1485 (2000).

  139. . Zamjahn v. Zamjahn, 02-CA-871 (La. App. 5 Cir. 1/28/03); 839 So. 2d 309.

  140. . See id. at pp. 2-4; 839 So. 2d at 310-11.

  141. . Id. at pp. 2-3; 839 So. 2d at 311.

  142. . Id. at p. 11; 839 So. 2d at 315-16.

  143. . Id. at pp. 3-4; 839 So. 2d at 311. The trial court also found that the donation was null for improper form, but heard the duress claim to determine the matter of attorney fees. Id.

  144. . Zamjahn v. Zamjahn, 02-CA-871, p. 2 (La. App. 5 Cir. 1/28/03); 839 So. 2d 309, 310.

  145. . Id. at p. 12; 839 So. 2d at 316. Although the court reversed the finding of duress, it held that the donation was invalid for lack of form. Id.

  146. . See Autin v. Autin, 617 So. 2d 229, 231 (La. Ct. App. 5 Cir. 1993).

  147. . Id.

  148. . Id.

  149. . Id.

  150. . Id. at 233.

  151. . Autin v. Autin, 617 So. 2d 229, 231 (La. Ct. App. 5 Cir. 1993).

  152. . Id. at 233.

  153. . Id.

  154. . Id.

  155. . See La. Stat. Ann. § 14:66 (2019); State v. Felton, 339 So. 2d 797, 800 (La. 1976) (holding that Louisiana’s extortion statute “is intended to include what is commonly known as ‘blackmail.’”).

  156. . See Ronald Joseph Scalise, Jr., Blackmail, Legality, and Liberalism, 74 Tul. L. Rev. 1483 (2000); Wendy J. Gordon, Truth and Consequences: The Force of Blackmail’s Central Case, 141 U. Pa. L. Rev. 1741 (1993); Richard A. Posner, Blackmail, Privacy, and Freedom of Contract, 141 U. Pa. L. Rev. 1817 (1993); Water Block & David Gordon, Blackmail, Extortion and Free Speech: A Reply to Posner, Epstein, Nozick and Lindgren, 19 Loy. L.A. L. Rev. 37 (1986).

  157. . Ronald Joseph Scalise, Jr., Blackmail, Legality, and Liberalism, 74 Tul. L. Rev. 1483, 1485 (2000).

  158. . Id.

  159. . See Wendy J. Gordon, Truth and Consequences: The Force of Blackmail’s Central Case, 141 U. Pa. L. Rev. 1741, 1746 (1993).

  160. . La. Civ. Code Ann. art. 1962 (2019).

  161. . Id.

  162. . La. Civ. Code Ann. art. 1962 cmt. (a) (2019).

  163. . La. Civ. Code Ann. art. 1856 (1870).

  164. . Id.

  165. . La. Civ. Code Ann. art. 1857 (1870).

  166. . Id.

  167. . Draft of Proposed Legislation from Saul Litvinoff, Reporter, Louisiana State Law Institute, to Committee, Louisiana State Law Institute (Aug. 24, 1979) (on file with author).

  168. . Id.

  169. . La. Civ. Code Ann. art. 1959 cmt. (b) (2019).

  170. . See Bobby M. Harges & Wendy K. Shea, Louisiana Criminal Law Treatise (Esquire Books, Inc. 2014).

  171. . State v. Logan, 29 So. 336, 337 (La. 1901) (citing the common law to define extortion as the taking of someone’s “possessions or knowledge by force or compulsion . . . by any violent or oppressive means, as physical force, menaces, duress, torture, authority, monopoly, or the necessities of others.”).

  172. . Id.

  173. . La. Stat. Ann. § 14:66 (2019) (“Extortion is the communication of threats to another with the intention thereby to obtain anything of value or any acquittance, advantage, or immunity of any description. Any one of the following kinds of threats shall be sufficient to constitute extortion: (1) A threat to do any unlawful injury to the person or property of the individual threatened or of any member of his family or of any other person held dear to him. (2) A threat to accuse the individual threatened or any member of his family or any other person held dear to him of any crime. An offer to participate in a theft prevention program pursuant to Code of Criminal Procedure Article 215 shall not constitute a violation of the provisions of this Paragraph. (3) A threat to expose or impute any deformity or disgrace to the individual threatened or to any member of his family or to any other person held dear to him. (4) A threat to expose any secret affecting the individual threatened or any member of his family or any other person held dear to him. (5) A threat to cause harm as retribution for participation in any legislative hearing or proceeding, administrative proceeding, or in any other legal action. (6) A threat to do any other harm.”).

  174. . See La. Stat. Ann. § 14:66 (2019).

  175. . La. Stat. Ann. § 14:66(A) (2019).

  176. . Id.

  177. . See La. Stat. Ann § 14:66 (2019).

  178. . La. Stat. Ann. § 14:66(B) (2019).

  179. . See State v. Daniels, 628 So. 2d 63 (La. Ct. App. 1 Cir. 1993).

  180. . Id. at 66.

  181. . Id.

  182. . Id.

  183. . Id.

  184. . State v. Daniels, 628 So. 2d 63, 66 (La. Ct. App. 1 Cir. 1993).

  185. . Id.

  186. . Id. at 67.

  187. . Id. at 66.

  188. . Id.

  189. . State v. Daniels, 628 So. 2d 63, 65 (La. Ct. App. 1 Cir. 1993).

  190. . Id. at 65.

  191. . Id. at 66.

  192. . State v. Daniels, 628 So. 2d 63, 67 (La. Ct. App. 1 Cir. 1993).

  193. . Id.

  194. . See State ex. rel. J.S., 2018-1245 (La. App. 1 Cir. 12/21/18); 268 So. 3d 311, 318 (holding that “failure to report a crime to law enforcement does not render one an accessory after the fact”).

  195. . See Daniels, 628 So. 2d at 67.

  196. . Tamara F. Lawson, “Whites Only Tree,” Hanging Nooses, No Crime?: Limiting the Prosecutorial Veto for Hate Crimes in Louisiana and Across America, 8 U. Md. L.J. Race, Religion, Gender & Class 123, 159 n.183 (2008); see 18 U.S.C. § 1951 (2019); see also La. Stat. Ann. § 14:66 (2019).

  197. . See 18 U.S.C. § 1951 (2019).

  198. . See United States v. Cruz-Arroyo, 461 F.3d 69, 74 (1st Cir. 2006).

  199. . See id.

  200. . See United States v. Didonna, 866 F.3d 40 (1st Cir. 2017); United States v. Kattar, 840 F.2d 118 (1st Cir. 1988).

  201. . Didonna, 866 F.3d at 44.

  202. . Id. at 43-44.

  203. . Id. at 46-47.

  204. . See id.

  205. . United States v. Kattar, 840 F.2d 118, 119 (1st Cir. 1988).

  206. . Id. at 120.

  207. . Id.

  208. . Id.

  209. . Id.

  210. . United States v. Kattar, 840 F.2d 118, 124 (1st Cir. 1988).

  211. . See United States v. Didonna, 866 F.3d 40, 47 (1st Cir. 2017); United States v. Sturm, 870 F.2d 769, 772 (1st Cir. 1989); Kattar, 840 F.2d at 123.

  212. . See La. Civ. Code Ann. art. 1962 (2019).

  213. . United States v. Clemente, 640 F.2d 1069, 1077 (2d Cir. 1981).

  214. . See United States v. Enmons, 410 U.S. 396, 400 (1973) (where threats of unlawful conduct did not constitute extortion because the defendants had a rightful claim to the money they sought to obtain by their threats).

  215. . See Clemente, 640 F.2d at 1077.

  216. . One could argue that Louisiana courts would refuse to enforce blackmail transactions under Civil Code article 1968, which provides that a cause is unlawful when its enforcement would produce a result prohibited by law. See La. Civ. Code Ann. art. 1968 (2019). Whether this argument is accurate seems unclear. Enforcement of the contract would not necessarily produce a prohibited result, as the crime of extortion is already consummated as soon as the extortive threat is communicated. At the point of litigation, the prohibited result has already occurred, and the party’s cause is simply to receive the property. In any case, this Comment intends only to address the Civil Code’s provisions on duress.

  217. . See United States v. Clemente, 640 F.2d 1069, 1077 (2d Cir. 1981).

  218. . See Saul Litvinoff, Vices of Consent, Error, Fraud, Duress and an Epilogue on Lesion, 50 La. L. Rev. 1, 7 (1989).

  219. . Id.

  220. . See Saul Litvinoff, Vices of Consent, Error, Fraud, Duress and an Epilogue on Lesion, 50 La. L. Rev. 1, 9 (1989) (“The concept of a vice of consent thus came into existence as a practical solution that allows the paying of respect to the autonomy of the parties’ will without overlooking the need to maintain the security of transactions.”).

  221. . See United States v. Didonna, 866 F.3d 40, 47 (1st Cir. 2017) (“The sufficiency of the evidence of Hobbs Act extortion thus turns on whether the defendant had a claim of right to the additional money that he was attempting to garner.”).

  222. . Id. (“[T]he government must prove, by direct or circumstantial evidence, that the defendant ‘knew that he was not legally entitled to the property that he [either] received’ or attempted to receive.”).

  223. . Id.

  224. . La. Civ. Code Ann. art. 1959 cmt. (b) (2019)

  225. . Draft of Proposed Legislation from Saul Litvinoff, Reporter, Louisiana State Law Institute, to Committee, Louisiana State Law Institute (Apr. 20, 1979) (on file with author).