bank accounts to targeting ideas and identities
makes the undue-influence doctrine of even
more immediate concern to protect vulnerable
victims.
The Sliding-Scale Problem
When undue influence escapes from the fiscal
confines in which it was largely contained, a
most serious issue arises: where to draw the line.
There are no clear demarcations as one passes
from guidance, to advice, to education, to
suggestion, to seduction, to indoctrination, to
thought reform. This progression puts the judge
in the difficult position of deciding on the basis
of opinion, not law or science, because the law is
not capable of telling us in advance what is
permissible and what is not, except at the
extremes. As one court noted, “although
kindness and attention alone would not
constitute undue influence, they might, when
combined with other factors, amount to such
influence” (In re Rohde’s Estate, 1958, p. 495).
What is helpful for me, and I hope will be for
you, is to focus not on the specific law, but
rather on the policy behind the law. The law of
undue influence, in my opinion, must find what I
call the point of unacceptable interaction. This
point occurs when you would say to yourself
about someone’s conduct, “You just can’t treat
people like that. And if you do, the law will step
in and you will be punished.” This perspective
does not specifically clarify anything, but for me
it helps to state the task.
In all civil cases, the person who brings the
lawsuit is saying that the status quo is wrong and
the court should remedy it. That person has the
burden of proving that the judge should step in
and not just leave the parties in their current
situation. No law could ever precisely, and in
advance, define when the judge should act
because each fact pattern is unique. But I like
the idea that an informal test should be “You just
can’t treat people like that,” and that the
evidence and science must support that claim.
There are two analogies in law that help us
understand this perspective. The law of contracts
recognizes the concept of unconscionability.
When two people meet to bargain and eventually
sign a contract that memorializes their final
agreement, the law will enforce this contract
because it was a mutually agreed-upon
exchange. The fact that one party gets the better
deal is not a sufficient reason to decide that the
contract should not be enforced. But what if the
agreement is grossly unfair, as was the case in
the situations Florence Roisman argued for her
tenant-clients? Unfairness generally is not
judicially remedied. However, if the unfairness
is a product of exploitation, to the point at which
a person’s vulnerability has been so
compromised that the choices made cannot be
considered to have been voluntary, judges will
declare the contract void.
The other analogy involves the law of torts.
Courts have long recognized the tort of
intentional infliction of emotional distress. In
these cases, one person’s behavior toward
another is so morally and socially outrageous
that it “shocks the conscience” and demands
judicial redress.
Unconscionability cases and intentional-
infliction-of-emotional-distress cases have
precisely the same sliding-scale problem as do
the undue-influence cases. All of them are
resolved with a “shock the conscience” test that
basically says, “You cannot treat another person
that way.” In my terms, all three types of cases
involve the point of unacceptable interaction. It
is generally the function of juries to decide when
that point has been reached.
The Paradox Problem
One may argue that the only true way to protect
freedom of thought is not to interfere with it at
all. People make decisions let them be bound by
them. There is a very strong preference in the
law for free will, individual autonomy, and
holding people accountable for their choices.
And this is a good thing it protects the right to
be oneself. For this reason, there is reluctance to
expand the scope of justifications and excuses to
override choices, no matter how unfortunate
those choices might turn out for the person who
made them.
This judicial hands-off policy clearly pits undue
influence against freedom of choice. Thus we
have a paradox: Courts are asked to protect your
freedom of choice by denying or altering the
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choices you already made. Judges are very
sensitive to not becoming an alter ego of
disgruntled litigants. They assume that it is not
the function of a court to substitute its own
decision for that made by the litigant. The
paradox is easily understood in the context of
will cases.
Suppose an 80-year-old man becomes involved
with a 27-year-old woman. After he dies, it is
discovered that in the few months the two
people were together, the man changed his will
and left his fortune to his young girlfriend,
leaving nothing to his family. What should the
court decide when the family challenges the
will? When more than money is involved, when
beliefs and identity are at issue, the paradox for
courts becomes even more pronounced. Do you
protect mental freedom by doing nothing, or by
undoing the choices seemingly made by the
influencee under circumstances in which
impermissible influence might have occurred?
Many state courts used to have a test for
answering these questions. The test was whether
the influencee had been duped by an “artful and
designing person.” I confess to being fond of
that test, not because it is clear, but because, in
its Dickensian language, it attracts our attention
to the key ingredients of undue influence—a
vulnerable victim outmatched by a self-
interested and clever manipulator.
But whatever the test, the paradox remains. Do
you protect freedom of mind by upholding the
choices actually made, or by undoing the
decisions on the grounds that they were the
product of a sophisticated fraud?
The Constitutional Problem
Even if a judge would be inclined to step in and
find undue influence, there is the problem of the
First Amendment, which protects freedom of
expression and freedom of religion. Fortunately,
in most cases the problem does not arise because
behaviors, not specific beliefs, are at issue.
In April of this year, the Nigerian Islamic
extremist group Boko Haram kidnapped more
than 200 teenage girls. A video was released
showing approximately 150 of the girls attired in
traditional Muslim dress reciting or chanting
verses from the Koran. Boko Haram leader
Abubakar Shekau claimed he had liberated the
girls and that many of them had become
Muslims after having been living as infidels.
Would anyone claim that to rescue these girls
and undo the mental harm they have suffered,
including the coerced involuntary indoctrination
they endured, would violate freedom of religion?
The basic policy in awarding damages in the law
of torts is that when a harm has been done to
someone (such as false imprisonment and
battery), the individual is entitled to a remedy
that would put her back in the position she was
in before the harm occurred. So the forcibly
abducted and coercively indoctrinated young
girls should be entitled to be returned to their
families and to the beliefs they held before being
captured. However, this conclusion raises an
intriguing “which side are you on” issue: If it is
impermissible to use sophisticated and yet subtle
tactics of indoctrination to induce a person to
hold certain religious beliefs, is it permissible to
deprogram that person out of those beliefs
(Fautré, 2014)?
There is no time here to discuss or develop the
intricacies of tort law or First Amendment law,
other than to say that courts are wary of
intruding in any case in which religion is a
factor. However, two current developments
merit mentioning because they may change the
contours of how we think about religion and
undue influence.
The first is the ongoing issue of what constitutes
a religion. Scientology has qualified as a
religion in some courts, but what about yoga
(Fraser, 2014)? These cases are now pending.
And what about Satanism (Harvard, 2014)? And
what about atheism—one court has just held that
atheism (“secular humanism”) qualifies as a
religion (American Humanist Association v.
United States, 2014)? How far will courts be
willing to go to grant religious status to an
increasing number of organizations and belief
systems (Fautré, 2014 Hamilton, 2014 Irons,
2007)?
A second and related development is the very
recent backlash against special treatment for
religious organizations. Bill Moyers (2012), in a
thoughtful video essay subtitled “How do we
honor religious liberty without it becoming the
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