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
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.
2. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943).

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