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
74 International Journal of Cultic Studies ■ Vol. 6, 2015
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
74 International Journal of Cultic Studies ■ Vol. 6, 2015
