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7 Duke J. Const. L. & Pub. Pol'y 1 (2011-2012)

handle is hein.journals/dukpup7 and id is 1 raw text is: FREE WILL PARADIGMS KENT GREENFIELD* One of the iconic issues in American law and politics is the question of free will-sometimes known as agency, choice, or autonomy, or the absence of duress, coercion, and compulsion. In politics, whether one is liberal or conservative, we balk at government limitations on choice and fight those limitations with legal arguments about rights and political rhetoric about freedom. Liberals demand access to abortions, want the ability to purchase medical marijuana, and bristle at pat-down searches before boarding a plane. Conservatives dislike requirements to buy health insurance or pay taxes, rail against limits on gun ownership and school prayer, and decry government regulation of everything from food to the environment. Liberals and conservatives may disagree about the specifics of what they want to be free to choose, but both sides believe that choice is a good thing.' In law, the notion of choice and free will is ubiquitous. For example, only contracts freely entered into are considered valid-if a contract is the result of duress, it is unenforceable. In tort law, some acts are torts because they infringe on the will of others-a fist to the nose is a tort if not consented to, and merely pugilism if it is. Rape is sexual intercourse without consent. Sexual harassment law prohibits sexual attention in the workplace that is unwanted and unconsented- to. Under the Fourth Amendment, courts admit evidence seized without a warrant if that evidence was found in the course of consensual searches. Under the Fifth Amendment, confessions of a criminal suspect are admissible if uncoerced. Under the First Amendment Free Speech Clause, a fixed star in our constitutional constellation,2 the government cannot force one to speak. Under the Free Exercise Clause, the government cannot require religious * Professor of Law and Law Fund Scholar, Boston College Law School. The author thanks Michael Girma Kebede and Michael Ding for terrific research and editing assistance. 1. See KENT GREENFIELD, THE MYTH OF CHOICE: PERSONAL RESPONSIBILITY IN A WORLD OFLIMITS 1 (2011). 2. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943).

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