Professor Robin Boyle’s article, “Undoing Undue Influence: How the Doctrine Can Avoid Judicial Subjectivity by Omitting the Vulnerability Element,” will be published in the American Journal of Trial Advocacy (issue 47:1), a law review of Samford University, Cumberland School of Law.
In the article, Professor Boyle advocates for the removal of the element of vulnerability from the doctrine of undue influence. She writes:
“The utility of the doctrine of undue influence has been declining for several decades because of its inclusion of the element of vulnerability or, put another way, inquiry into the mind of the one allegedly being influenced. I argue that the courts’ inquiry into the mind of the influencee to determine whether this person was vulnerable is not a useful construct as an element of the doctrine. This article addresses three contexts in which assessing one’s vulnerability is problematic: first, in the contract formation process occurring in the general population (meaning not within a high-control group), such as the example in the signing of an arbitration agreement in the Martinez-Gonzalez v. Elkhorn Packing Co. case; second, in disputes resolving whether testamentary bequests went to the rightful beneficiaries of wills; and third, in contract formation processes occurring in high-control groups, such as in the case of D’Onofrio v. Mother of God with Eternal Life.”
The Journal publishes articles that are both scholarly and useful in the daily practice of law. The editors expressed to Professor Boyle that her “article presents a fresh and nuanced view on a fascinating topic in trial advocacy. As the legal field moves to address biases and subjectivity, articles like yours help to move the conversation forward and address real issues. We believe our nationwide advocacy-centered audience would benefit greatly from reading your article.”