Jason Neyers wrote:

> Colleagues:

>

> I was wondering if anyone had a view on the following. I am trying to

> pinpoint the difference on a conceptual level between competition as

> envisaged in a case like Mogul Steamships and extortion/lawful act

> duress...

Good luck! I was working on the same point in relation to something I'm

doing - it is probably the one road block to getting it finished. I was

not comforted when I started reading articles written by criminal

lawyers about blackmail, where the same dillema arises: what converts a

threat to do something as clearly lawful as a threat to call the police

into an unlawful act of blackmail? At a conceptual level, it is almost

impossible, might actually be impossible to draw a clean and satisfying

line. In the field of duress, one approach has been to look at the

motivation: is it to take advantage of weakness? I'm not finding this a

particularly useful approach, as it simply shifts the ground of enquiry.

In cases like Whetton, all the Judge could come up with was that "public

policy" is against the use of a threat to get the police involved to

extract a bargain. I do think that deriving an economic gain for oneself

is too ambiguous to use as a signal that the threat is OK: the

economists would have us think that everything done in commerce is for

economic gain. Although there are arguments raised against it, I am

attracted to the current UK approach to conspiracy, which requires the

means or threat used to be independently unlawful before the fact that

people act in concert is treated as unlawful.

Barry

--

*****************************************

Barry Allan

Senior Lecturer

Faculty of Law

University of Otago

PO Box 56

Dunedin

New Zealand

phone: ++(64) (03) 479 8830.  fax:(03) 479 8855