The harm in blackmail

Northwestern University Law Review

Volumn 92, Issue 3, 1998, Pages 861-914

  Smith, Henry E ^a  

^a NONE

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EID: 0006199701     PISSN: 00293571     EISSN: None     Source Type: Journal    
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References (165)

1. This definition covers much territory, and blackmail statutes generally define the crime more narrowly on the basis of type of threat, usually threats to injure person or property, to accuse another of a crime, or to expose damaging information. See James Lindgren, Unraveling the Paradox of Blackmail, 84 COLUM. L. REV. 670, 673 & nn.20-22 (1984). Most such statutes also rely on prosecutorial discretion to narrow their application further. See id. at 671 & n.13. One major limitation, the so-called claim-of-right exception, exempts threats that are made to induce someone to make restitution and that are "related" to the right claimed. For example, A threatens to report B's theft of A's coat unless B returns the coat. See infra notes 56-58 and accompanying text.
2. See Glanville L. Williams, Blackmail, 1954 CRIM. L. REV. 79, 163 (first posing blackmail problem in these terms).
3. See infra note 8 and accompanying text.
4. See Richard A. Epstein, Blackmail, Inc., 50 U. CHI. L. REV. 553, 557 & n.6 (1983) (citing example of threat not to sell goods at certain price, something one has right to do and to threaten to do).
5. This is immoral but not illegal, unless something like misprision of felony is a crime. On the relation of blackmail to law enforcement, see also infra note 93 and accompanying text.
6. Some commentators have tried this tack. See, e.g., Lindgren, supra note 1, at 680-701 (reviewing and rejecting several theories of blackmail); Jeffrie G. Murphy, Blackmail: A Preliminary Inquiry, 63 MONIST 156, 163-66 (1980). Nonetheless, an explanation based on the right or the interest of the public or some class of third parties to receive and use the information does not extend to the general case of informational blackmail. See infra subpart IV.A.
7. No one theory has achieved wide acceptance. I argue that previous commentators of both camps have focused on nondistinctive aspects of the blackmail transaction. See infra Part IV.
8. Compare Murphy, supra note 6, at 160-63 (giving up altogether on explaining blackmail in deontological terms), with LEO KATZ, ILL-GOTTEN GAINS: EVASION, BLACKMAIL, FRAUD, AND KINDRED PUZZLES OF THE LAW at xiii, 151-63 (1996) (arguing that utilitarian explanations are inadequate).
9. Self-help includes any action taken outside the legal system that has legal consequences. Often self-help takes the form of revenge and private punishment, but, strictly speaking, self-help need not be directed at the source of an invasion of a right or interest.
10. I use "shame" and "humiliation" to cover threats to one's reputation (construed widely to embrace the reputation of anyone close, e.g., family members). For an extensive discussion of shame and humiliation and an introduction to the large literature on this subject, see WILLIAM IAN MILLER, HUMILIATION 134-46 (1993). Shame is often contrasted with guilt, which presupposes a moral authority outside the individual. See id. at 134-35. If blackmail plays on the victim's sense of shame, and the criminal law depends on the notion of guilt, then blackmail is a particularly interesting arena in which shame (from the secret) and the prospect of guilt (from the criminal sanction) compete, here for influence over the blackmail transaction. See infra subpart V.A.
11. See infra section III.B.5.
12. See GUIDO CALABRESI, THE COSTS OF ACCIDENTS: A LEGAL AND ECONOMIC ANALYSIS 95-111 (1970); see also infra subpart V.C.
13. Shame is not the only possible motive which can lead to such a "skewed" cost-benefit analysis. For instance, if A knows that B will be financially ruined by the disclosure of some information, we do have something to fear from what B might do in response to a blackmail threat based on that information. He might steal or, depending on what kind of person B is, conceivably kill. Nonetheless, reputational blackmail, in which the threat is to reveal discrediting information, is the core category of informational blackmail. In the following discussion, I focus on shame and reputational blackmail, but it should be understood that the same considerations apply to any motive capable of inducing a similarly skewed cost-benefit analysis on the part of the victim.
14. See infra subpart IV.B.
15. The notion of the "helpless" victim is a nearly universal feature, tacit or explicit, in the theoretical literature on blackmail. See, e.g., Sidney W. DeLong, Blackmailers, Bribe Takers, and the Second Paradox, 141 U. PA. L. REV. 1663, 1690 (1993); George P. Fletcher, Blackmail: The Paradigmatic Crime, 141 U. PA. L. REV. 1617, 1626 (1993); Leo Katz, Blackmail and Other Forms of Arm-Twisting, 141 U. PA. L. REV. 1567, 1595 (1993), reprinted in KATZ, supra note 8, at 133-69.
16. The notion of the "helpless" victim is a nearly universal feature, tacit or explicit, in the theoretical literature on blackmail. See, e.g., Sidney W. DeLong, Blackmailers, Bribe Takers, and the Second Paradox, 141 U. PA. L. REV. 1663, 1690 (1993); George P. Fletcher, Blackmail: The Paradigmatic Crime, 141 U. PA. L. REV. 1617, 1626 (1993); Leo Katz, Blackmail and Other Forms of Arm-Twisting, 141 U. PA. L. REV. 1567, 1595 (1993), reprinted in KATZ, supra note 8, at 133-69.
17. The notion of the "helpless" victim is a nearly universal feature, tacit or explicit, in the theoretical literature on blackmail. See, e.g., Sidney W. DeLong, Blackmailers, Bribe Takers, and the Second Paradox, 141 U. PA. L. REV. 1663, 1690 (1993); George P. Fletcher, Blackmail: The Paradigmatic Crime, 141 U. PA. L. REV. 1617, 1626 (1993); Leo Katz, Blackmail and Other Forms of Arm-Twisting, 141 U. PA. L. REV. 1567, 1595 (1993), reprinted in KATZ, supra note 8, at 133-69.
18. See, e.g., Ronald H. Coase, Blackmail, 74 VA. L. REV. 655, 675 (1988) ("The victim has to deal with the blackmailer.") (emphasis in original). He or she may pay up out of current resources or from loans or risk disclosure, but these are by no means the only choices. The victim may also take the full range of self-help measures ranging from theft, fraud, and the like to assault and murder. On why the penalties, if any, for any given one of these choices may not be deterrent enough, see infra note 30 and accompanying text.
19. See infra subpart V.
20. Guido Calabresi, Concerning Cause and the Law of Torts: An Essay for Harry Kalven, Jr., 43 U. CHI. L. REV. 69, 71 (1975); see also Steven Shavell, An Analysis of Causation and the Scope of Liability in the Law of Torts, 9 J. LEGAL STUD. 463 (1980); Steven Shavell, Uncertainty over Causation and the Determination of Civil Liability, 28 J.L. & ECON. 587 (1985). Note that what is required is a belief that an increase in A increases the chances of B. This belief need not be correct or philosophically well- founded for there to be causal link in this descriptive sense. See Calabresi, supra, at 71 n.4. However, what is required is more than a belief that there is a statistical correlation between A and B. Rather for there to be a causal link between A and B, we have to believe that an increase or decrease in A will lead to an increase or decrease in B. More formally, choosing action A over action A′ is causally linked to consequence B if Pr(s\A(s) = B) > Pr(s\A′(s) = B), where s is a state of the world, (A)s is the consequence in s of action A, and Pr(s\X(s) = Y) is the probability of the consequence of action X being Y in state of the world s. See Shavell, An Analysis of Causation and the Scope of Liability in the Law of Torts, supra, at 468 n.18.
21. Guido Calabresi, Concerning Cause and the Law of Torts: An Essay for Harry Kalven, Jr., 43 U. CHI. L. REV. 69, 71 (1975); see also Steven Shavell, An Analysis of Causation and the Scope of Liability in the Law of Torts, 9 J. LEGAL STUD. 463 (1980); Steven Shavell, Uncertainty over Causation and the Determination of Civil Liability, 28 J.L. & ECON. 587 (1985). Note that what is required is a belief that an increase in A increases the chances of B. This belief need not be correct or philosophically well- founded for there to be causal link in this descriptive sense. See Calabresi, supra, at 71 n.4. However, what is required is more than a belief that there is a statistical correlation between A and B. Rather for there to be a causal link between A and B, we have to believe that an increase or decrease in A will lead to an increase or decrease in B. More formally, choosing action A over action A′ is causally linked to consequence B if Pr(s\A(s) = B) > Pr(s\A′(s) = B), where s is a state of the world, (A)s is the consequence in s of action A, and Pr(s\X(s) = Y) is the probability of the consequence of action X being Y in state of the world s. See Shavell, An Analysis of Causation and the Scope of Liability in the Law of Torts, supra, at 468 n.18.
22. Guido Calabresi, Concerning Cause and the Law of Torts: An Essay for Harry Kalven, Jr., 43 U. CHI. L. REV. 69, 71 (1975); see also Steven Shavell, An Analysis of Causation and the Scope of Liability in the Law of Torts, 9 J. LEGAL STUD. 463 (1980); Steven Shavell, Uncertainty over Causation and the Determination of Civil Liability, 28 J.L. & ECON. 587 (1985). Note that what is required is a belief that an increase in A increases the chances of B. This belief need not be correct or philosophically well- founded for there to be causal link in this descriptive sense. See Calabresi, supra, at 71 n.4. However, what is required is more than a belief that there is a statistical correlation between A and B. Rather for there to be a causal link between A and B, we have to believe that an increase or decrease in A will lead to an increase or decrease in B. More formally, choosing action A over action A′ is causally linked to consequence B if Pr(s\A(s) = B) > Pr(s\A′(s) = B), where s is a state of the world, (A)s is the consequence in s of action A, and Pr(s\X(s) = Y) is the probability of the consequence of action X being Y in state of the world s. See Shavell, An Analysis of Causation and the Scope of Liability in the Law of Torts, supra, at 468 n.18.
23. Guido Calabresi, Concerning Cause and the Law of Torts: An Essay for Harry Kalven, Jr., 43 U. CHI. L. REV. 69, 71 (1975); see also Steven Shavell, An Analysis of Causation and the Scope of Liability in the Law of Torts, 9 J. LEGAL STUD. 463 (1980); Steven Shavell, Uncertainty over Causation and the Determination of Civil Liability, 28 J.L. & ECON. 587 (1985). Note that what is required is a belief that an increase in A increases the chances of B. This belief need not be correct or philosophically well-founded for there to be causal link in this descriptive sense. See Calabresi, supra, at 71 n.4. However, what is required is more than a belief that there is a statistical correlation between A and B. Rather for there to be a causal link between A and B, we have to believe that an increase or decrease in A will lead to an increase or decrease in B. More formally, choosing action A over action A′ is causally linked to consequence B if Pr(s\A(s) = B) > Pr(s\A′(s) = B), where s is a state of the world, (A)s is the consequence in s of action A, and Pr(s\X(s) = Y) is the probability of the consequence of action X being Y in state of the world s. See Shavell, An Analysis of Causation and the Scope of Liability in the Law of Torts, supra, at 468 n.18.
24. See Berry v. Sugar Notch, 43 A. 240 (Pa. 1899).
25. Holmes's theory of criminal liability is based on what he calls "causal tendency": All acts are indifferent per se. In the characteristic type of substantive crime, acts are rendered criminal because they are done under circumstances in which they will probably cause some harm which the law seeks to prevent. The test of criminality in such cases is the degree of danger shown by experience to attend that act under those circumstances. OLIVER WENDELL HOLMES, THE COMMON LAW 61 (Mark DeWolfe Howe ed., Belknap Press 1963) (1881). Note that this formulation mixes causal link with proximate cause and that Holmes is in effect claiming a major role for causal tendency. For discussions of proximate cause in tort and criminal law, see Calabresi, supra note 18, at 81-84; H.L.A. HART & TONY HONORÉ, CAUSATION IN THE LAW 325- 430 (2d ed. 1985).
26. Holmes's theory of criminal liability is based on what he calls "causal tendency": All acts are indifferent per se. In the characteristic type of substantive crime, acts are rendered criminal because they are done under circumstances in which they will probably cause some harm which the law seeks to prevent. The test of criminality in such cases is the degree of danger shown by experience to attend that act under those circumstances. OLIVER WENDELL HOLMES, THE COMMON LAW 61 (Mark DeWolfe Howe ed., Belknap Press 1963) (1881). Note that this formulation mixes causal link with proximate cause and that Holmes is in effect claiming a major role for causal tendency. For discussions of proximate cause in tort and criminal law, see Calabresi, supra note 18, at 81-84; H.L.A. HART & TONY HONORÉ, CAUSATION IN THE LAW 325-430 (2d ed. 1985).
27. HOLMES, supra note 20, at 61-62.
28. Id. at 75.
29. See, e.g., MODEL PENAL CODE § 5.06(1) (1962).
30. See WAYNE R. LAFAVE & AUSTIN W. SCOTT, CRIMINAL LAW § 8.13 (2d. ed. 1986) (discussing history and rationale of burglary laws); see also id. § 8.13(g) (noting that punishment for burglary is "usually far greater than for most of the offenses which might actually be committed within the structure [broken into]").
31. See WAYNE R. LAFAVE & AUSTIN W. SCOTT, CRIMINAL LAW § 8.13 (2d. ed. 1986) (discussing history and rationale of burglary laws); see also id. § 8.13(g) (noting that punishment for burglary is "usually far greater than for most of the offenses which might actually be committed within the structure [broken into]").
32. This has been quite controversial. Compare George P. Fletcher, Reflections on Felony-Murder, 12 SW. U. L. REV. 413, 422-23 (1981) (criticizing this aspect of felony murder-doctrine), with David Crump & Susan W. Crump, In Defense of the Felony Murder Doctrine, 8 HARV. J.L. & PUB. POL'Y 359, 365-67, 384 (1985) (defending same). Holmes found fault in the felony-murder doctrine's solution of strict liability for a resulting harm when it occurs, but note that Holmes's preferred solution is to increase the penalty for all felonies slightly to reflect the slight chance of an eventual killing connected to a felony. HOLMES, supra note 20, at 58-59. This is consistent with a central role for causal link: felonies are causally linked to other violence.
33. This has been quite controversial. Compare George P. Fletcher, Reflections on Felony-Murder, 12 SW. U. L. REV. 413, 422-23 (1981) (criticizing this aspect of felony murder-doctrine), with David Crump & Susan W. Crump, In Defense of the Felony Murder Doctrine, 8 HARV. J.L. & PUB. POL'Y 359, 365-67, 384 (1985) (defending same). Holmes found fault in the felony-murder doctrine's solution of strict liability for a resulting harm when it occurs, but note that Holmes's preferred solution is to increase the penalty for all felonies slightly to reflect the slight chance of an eventual killing connected to a felony. HOLMES, supra note 20, at 58-59. This is consistent with a central role for causal link: felonies are causally linked to other violence.
34. One aspect of the felony-murder controversy is whether the traditional belief that felonies tend to result in homicide is really justified. See MODEL PENAL CODE § 210.2, cmt. c, at 37-39, 39 n.96 (1962) (citing statistics suggesting that surprisingly few felonies result in homicide).
35. For the moment, we can ignore harmful self-help by the blackmail victim that does not constitute an independent crime.
36. On such "pressure points" in connection with specific deterrence (of which the criminal law is an extreme means), see Calabresi, supra note 18, at 78-84.
37. See infra Part V.
38. See infra notes 66-68 and accompanying text.
39. See supra notes 15-16 and accompanying text. For example, Leo Katz proposes that the essence of blackmail is that the blackmailer gives the victim a choice between a greater harm, (in essence) theft, and a lesser harm, revealing the secret. Katz, supra note 15, at 1597, 1615. While Katz is quite right that the victim cannot be trusted to rank the harms (on the present account, the victim assigns an "excessive" value to secrecy), Katz goes on to assume that the victim has only these two choices. Lindgren criticizes Katz for assuming away the paradox by asserting without justification that revealing the secret is immoral. James Lindgren, Blackmail: An Afterword, 141 U. PA. L. REV. 1975, 1977 (1993). Whether or not this is so, we need to explain why forcing the victim to make this choice - if it really were the choice - is so bad as to call for criminalization.
40. See infra Part V. For a model of criminal deterrence in an economic framework, see Gary S. Becker, Crime and Punishment: An Economic Approach, 76 J. POL. ECON. 169 (1968).
41. See Steven Shavell, An Economic Analysis of Threats and Their Illegality: Blackmail, Extortion, and Robbery, 141 U. PA. L. REV. 1877, 1883-84 (1993) (arguing that criminalizing blackmail does reduce expected return from blackmail and noting possibility of detection by third parties and by victim, especially if blackmailer's threat has been carried out). Criminalizing blackmail may also serve an education function, reinforcing the view of blackmail as a moral wrong, so that, for example, young people will not choose blackmailing as a career regardless of their chances of success.
42. See, e.g., HOLMES, supra note 20, at 49-62. Holmes uses the sliding scale of proximate causation according to the probability of danger as one basis for his general theory of criminal liability. See id. at 61.
43. See Commonwealth v. Peaslee, 59 N.B. 55 (Mass. 1901) (Holmes, C.J.). In Peaslee, then Chief Justice Holmes noted that attempt is based on "probability" (causal tendency) and that whether a given attempt is criminally sanctioned is determined by a sliding-scale analysis of proximate cause depending on the gravity of the (perceived) harm down the road: "[T]he degree of proximity held sufficient may vary with the circumstances, including, among other things, the apprehension which the particular crime is calculated to excite." Id. at 56 (citations omitted); see also HOLMES, supra note 20, at 66 (arguing that crime of attempt is based on causal tendency).
44. See, e.g., Adams v. Laird, 420 F.2d 230 (D.C. Cir. 1969) (affirming denial of relief for gay man denied security clearance on grounds of susceptibility to blackmail). But see id. at 240, 242 (Wright, J., dissenting) (conceding that Defense Department's fears of blackmail "may well have some basis in common experience" but noting that one who is openly gay cannot possibly be subject to blackmail). Note that, since the Defense Department did not document this "common experience," the entire causal link between homosexual activity and susceptibility to blackmail is suspect, since the belief that formed the basis of the causal link was left unjustified. See generally Taylor Flynn, Of Communism, Treason, and Addiction: An Evaluation of Novel Challenges to the Military's Anti-Gay Policy, 80 IOWA L. REV. 979, 1028 (1995) (outlining evidence that gays in fact pose no special security risk). More generally, these efforts are often unsuccessful because they are unfairly overbroad or based on unsubstantiated beliefs and prejudice. See, e.g., Wentworth v. Laird, 348 F. Supp. 1153 (D.D.C. 1972), aff'd sub nom. Gayer v. Schlesinger, 490 F.2d 740 (D.C. Cir. 1973) (finding no evidence was presented that homosexuality furnished any basis for belief in increased susceptibility to blackmail and that open homosexuality of plaintiff challenging denial of security permit does not furnish such basis). Incidentally, the denial of a security clearance or security-sensitive job based on some individualized and genuine problem in a person's past (rather than based on animus) is the least likely to be visible. When restrictions or burdens are imposed on the basis of individualized secrets of an applicant that do not place the person in an oppressed group, the restriction is less likely to be challenged in litigation or otherwise.
45. Recall also that causal tendency is based on the belief that an increase in one activity is likely to lead to an increase in some type of event. This belief need not be correct in order to be acted upon by those making laws or regulations.
46. Sometimes defendants assert that an applicant could be motivated by shame in the absence of any evidence or even in the face of evidence to the contrary. See Bruns v. Pomerleau, 319 F. Supp. 58 (D. Md. 1970) (finding that Baltimore police department wrongfully refused to accept application from nudist in violation of right of association in absence of evidence showing rational relation between nudist activity and paramount government interest). The Bruns court further noted that the nudist in the case was not subject to blackmail since he disclosed his membership in the nudist club and "[a]t no time did he exhibit any secretiveness or in any manner indicate that he had any emotional hang-up concerning his association." Id. at 69. Without the shame element there is no causal link between the activity and blackmail.
47. See MILLER, supra note 10, at 179 (arguing that English-speaking, and by implication Western, societies have moved from a shame culture to a culture of embarrassment). For criticism of the traditional anthropological view that shame cultures give way to cultures of guilt (distinct from embarrassment) by an evolutionary logic, see GERHART PIERS & MILTON B. SINGER, SHAME AND GUILT: A PSYCHOANALYTIC AND A CULTURAL STUDY (Norton 1971) (1953).
48. See MICHEL MENARD, DE L'ÉVOLUTION JURIDIQUE DU DÉLIT DE CHANTAGE 50-52 (1914) (explaining early interpretation of Article 400, early nineteenth-century code provision including prohibition on the obtaining of a compromising writing, as reflecting both a realization that honor is at stake and a desire to prevent blackmail), citing CARNOT, COMMENTAIRE DU CODE PÉNAL, art. 400 (1836) (hypothesizing that Article 400's terminology reflected a broad purpose to cover any writing touching on honor). For the subsequent history of Article 400, including the removal of this particular prohibition, see C. PÉN., Art. 400 (79th Dalloz ed. 1981-82). Later judicial construction narrowed the prejudice to the coerced signer to pecuniary harm, leaving harm to reputation from the signature outside the statute, despite its broad phraseology. See E. Garçon, 1 C. PÉNAL ANNOTÉ, Art. 400, at 1258-59 (1901-06).
49. But this does not mean that there must be a legal response. Even if reputation were taken more seriously in an earlier time, it is no problem for the present approach that there might not be a blackmail law. This is because private law enforcement may have been more accepted in earlier times. See, e.g., RICHARD A. POSNER, THE ECONOMICS OF JUSTICE 285 (1981); William M. Landes & Richard A. Posner, The Private Enforcement of Law, 4 J. LEGAL STUD. 1, 1-2 (1975).
50. But this does not mean that there must be a legal response. Even if reputation were taken more seriously in an earlier time, it is no problem for the present approach that there might not be a blackmail law. This is because private law enforcement may have been more accepted in earlier times. See, e.g., RICHARD A. POSNER, THE ECONOMICS OF JUSTICE 285 (1981); William M. Landes & Richard A. Posner, The Private Enforcement of Law, 4 J. LEGAL STUD. 1, 1-2 (1975).
51. See supra note 40.
52. See MIKE HEPWORTH, BLACKMAIL: PUBLICITY AND SECRECY IN EVERYDAY LIFE 11, 14 (1975).
53. Id. at 11; see also 6 & 7 Vict. ch. 96 (1843) (Eng.) (dealing with libel and reputational blackmail); HEPWORTH, supra note 43, at 14 (arguing that this codification of Baron Parke's libel standard was "the crucial formal milestone" in the development of blackmail law).
54. 4 BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 150 (1769) (footnote omitted).
55. Id. (footnotes omitted).
56. The Case de Libellis Famosis, or of Scandalous Libels, 77 Eng. Rep. 250, 5 Co. Rep. 125a (1606) (holding truth to be no defense to libel indictment); 4 BLACKSTONE, supra note 45, at 150 ("[Since] it equally tends to a breach of the peace . . . it is immaterial with respect to the essence of a libel, whether the matter of it be true or false; since the provocation, and not the falsity, is the thing to be punished criminally") (footnotes omitted); see also Tuchin's Case, 90 Eng. Rep. 1133, 15 How. St. Tr. 1095, 1121, 1128-29 (1704) (defense counsel raising truth as defense and judge giving contrary jury instruction); see generally 5 WILLIAM HOLDSWORTH, A HISTORY OF ENGLISH LAW 208-12 (1965) (discussing treatment of criminal libel in sixteenth- and seventeenth-century England); 8 id. at 336-42 (discussing role of tendency to breach of peace in libel and seditious libel); Philip Hamburger, The Development of the Law of Seditious Libel and the Control of the Press, 37 STAN. L. REV. 661, 693-97 (1985) (tracing emergence of distinction between libel and seditious libel); id. at 694 (discussing tendency to provoke a quarrel as element of seventeenth-century libel and the bringing of scandal on the government as additional element in seventeenth-century seditious libel).
57. The Case de Libellis Famosis, or of Scandalous Libels, 77 Eng. Rep. 250, 5 Co. Rep. 125a (1606) (holding truth to be no defense to libel indictment); 4 BLACKSTONE, supra note 45, at 150 ("[Since] it equally tends to a breach of the peace . . . it is immaterial with respect to the essence of a libel, whether the matter of it be true or false; since the provocation, and not the falsity, is the thing to be punished criminally") (footnotes omitted); see also Tuchin's Case, 90 Eng. Rep. 1133, 15 How. St. Tr. 1095, 1121, 1128-29 (1704) (defense counsel raising truth as defense and judge giving contrary jury instruction); see generally 5 WILLIAM HOLDSWORTH, A HISTORY OF ENGLISH LAW 208-12 (1965) (discussing treatment of criminal libel in sixteenth- and seventeenth-century England); 8 id. at 336-42 (discussing role of tendency to breach of peace in libel and seditious libel); Philip Hamburger, The Development of the Law of Seditious Libel and the Control of the Press, 37 STAN. L. REV. 661, 693-97 (1985) (tracing emergence of distinction between libel and seditious libel); id. at 694 (discussing tendency to provoke a quarrel as element of seventeenth-century libel and the bringing of scandal on the government as additional element in seventeenth-century seditious libel).
58. 6 & 7 Vict. ch. 96 §§ 3, 6 (1843).
59. Subsequently blackmail was widened to include threats based on more than the (now pared down) concept of libel. See 15 HOLDSWORTH, supra note 47, at 150-51 (1966).
60. Lindgren, supra note 1, at 685 n.81 (citing Act of Nov. 4, 1835, ch. 125, § 17, 1836 Mass. Acts 716, 718; 1838 Mich. Pub. Acts § 14, at 623; R.I. Acts and Resolves § 12, at 5 (1838); Stat. Territory Wis. § 16, at 348-49 (1839)).
61. For a survey of intent requirements in various jurisdictions, see LAFAVE & SCOTT, supra note 24, § 8.12 nn. 14-15.
62. For a discussion of the fear requirement, see LAFAVE & SCOTT, supra note 24, § 8.12 & nn.7-8 (citing People v. Williams, 59 P. 581, 582 (Cal. 1899) (holding that fear caused by blackmailer's threat must be "the operating or controlling cause" of victim's compliance with demand); State v. McGee, 69 A. 1059, 1060 (Conn. 1908) (holding blackmail to require threat calculated to intimidate or put in fear an ordinarily firm and prudent man); State v. Brownlee, 51 N.W. 25, 29 (Iowa 1892) (holding blackmail to require threat to have unsettled victim's mind)).
63. Theft Act, 1968, ch. 60, § 21(1); Larceny Act, 1916, 6 & 7 Geo. 5, ch. 50, § 30 (1916); 24 & 25 Vict., ch. 96, § 44 (1861).
64. The Queen v. Tomlinson, [1895] 1 Q.B. 706, 709-10.
65. The wastefulness of blackmail is the foundation of several theories of blackmail. See infra subpart IV.C. Revealing secrets does, however, sometimes have a positive value. Whether revealing a given secret is a net good depends on the circumstances. See, e.g., Murphy, supra note 6, at 165.
66. See Lindgren, supra note 1, at 713-14.
67. For a survey of statutes recognizing the rightful claim exception and ones that do not, see id. at 714 nn.223-24.
68. See HOLMES, supra note 20, at 74-75.
69. For a general discussion of the doctrine of provocation, see LAFAVE & SCOTT, supra note 24, § 7.10.
70. See, e.g., State v. Harwood, 519 P.2d 177 (Ariz. 1974) (en banc) (holding that it is reversible error to deny manslaughter instruction where heat of passion was claimed to have arisen from jealous lover's threat to go home with appellant and cause commotion). Such cases are not, however, solely explainable as a response to blackmail. In particular, one has to ask, as with adultery-related heat of passion cases, whether the same result would obtain if a woman had killed a man.
71. See, e.g., Aguilar v. State, 242 S.E.2d 620, 624 (Ga. 1978) (upholding jury instruction that provocation by words is always inadequate to reduce murder to manslaughter); State v. Guebara, 696 P.2d 381, 386 (Kan. 1985) (holding that words alone can never constitute adequate provocation to reduce charge to manslaughter); State v. Starr, 38 Mo. 270, 277 (1886) ("To have the effect to reduce the guilt of killing to the lower grade [manslaughter], the provocation must consist of personal violence.") (citations omitted); Holmes v. Director of Pub. Prosecutions, [1946] App. Cas. 588 (appeal taken from Crim. App.) (Eng.). But see Maher v. People, 10 Mich. 212 (1862), which is now the more typical approach. Maher explicitly predicates provocation not on sufficient cause but on causal tendency: [W]hat shall be considered in law a reasonable or adequate provocation for such a state of mind, so as to give to a homicide, committed under its influence, the character of manslaughter . . . must be, anything the natural tendency of which would be to produce such a state of mind in ordinary men, and which the jury are satisfied did produce it in the case before them - not such a provocation as must, by the laws of the human mind, produce such an effect with the certainty that physical effects follow from physical causes; for then the individual could hardly be held morally accountable. Id. at 220 (first emphasis added). On the present theory, blackmail uses exactly this causal approach to victim self-help.
72. See, e.g., People v. Valentine, 169 P.2d 1, 11-15 (Cal. 1946) (en banc) (holding that statute allows jury to decide whether words alone are sufficient provocation).
73. Homicide Act, 1957, 5 & 6 Eliz. 2, ch. 11, § 3.
74. The Act reads in relevant part: Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man. Id.; see also Director of Pub. Prosecutions v. Camplin, [1978] 2 All E.R. 168, 176-77, 181 (H.L.) (construing Homicide Act of 1957 to allow provocation by words to be sufficient).
75. ROYAL COMMISSION ON CAPITAL PUNISHMENT 1949-1953, REPORT § 149 (1953) (noting with approval that "[a]nother witness [interviewed by the Commission] suggested, as a case of clear and strong provocation, the killing of a blackmailer by his exasperated victim").
76. See CHRISTOPHER HOLLIS, THE HOMICIDE ACT 88 (1964) (arguing that blackmail victim who kills blackmailer should be regarded as partially responsible).
77. See, e.g., Edwards v. Reginam, [1973] 1 All E.R. 152 (P.C.) (Eng.). In Edwards, a blackmail victim, provoked by blackmail into attacking the blackmailer, was killed by the defendant blackmailer. The trial judge denied the defendant a provocation-manslaughter instruction. On appeal the Privy Council held that the question of provocation in such a case was generally one for the jury, and Lord Pearson's opinion for the court further stated that: On principle it seems reasonable to say that (1) a blackmailer cannot rely on the predictable results of his own blackmailing conduct as constituting provocation sufficient to reduce his killing of the victim from murder to manslaughter, and the predictable results may include a considerable degree of hostile reaction by the person sought to be blackmailed, for instance vituperative words and even some hostile action such as blows with a fist; (2) but if the hostile reaction by the person sought to be blackmailed goes to extreme lengths it might constitute sufficient provocation even for the blackmailer; (3) there would in many cases be a question of degree to be decided by the jury. Id. at 158. Note that this approach balances responsibility between the proximate causes case-by-case, and that even if the blackmail victim went "too far," the blackmailer could still be liable for manslaughter. The law could theoretically hold either fully liable for a killing in the same situation, but in the area of criminal liability, this would be unusual.
78. See also infra subpart V.C. Furthermore, moral notions of responsibility - less morally responsible actors deserve lower punishment - are probably involved both in the provocation doctrine and in the context of the blackmail victim contemplating a crime. My point in the text is that, even if we focus only on deterrence, the present theory of blackmail can explain why we do not punish blackmail victims who engage in criminal self-help more severely than ordinary criminals, either in addition to or instead of punishing their blackmailers.
79. See, e.g., AGATHA CHRISTIE, DEATH ON THE NILE 312 (Dodd, Mead 1970) (1937); AGATHA CHRISTIE, ONE, TWO, BUCKLE MY SHOE 215 (Berkeley Books 1984) (1940) ("There is only one effectual method of dealing with a really efficient and experienced blackmailer. Silence him."); ARTHUR CONAN DOYLE, THE COMPLETE SHERLOCK HOLMES 243 (1956) (blackmail victim killing blackmailer); id. at 458-73 (similarly); 2 id. at 651-67 (blackmailer killing blackmail victim attempting to kill him); id. at 667-80 (blackmail victim killing blackmailer and fictional detective burgling house to retrieve embarrassing letters), JOHN LE CARRÉ, A MURDER OF QUALITY (1962).
80. See, e.g., AGATHA CHRISTIE, DEATH ON THE NILE 312 (Dodd, Mead 1970) (1937); AGATHA CHRISTIE, ONE, TWO, BUCKLE MY SHOE 215 (Berkeley Books 1984) (1940) ("There is only one effectual method of dealing with a really efficient and experienced blackmailer. Silence him."); ARTHUR CONAN DOYLE, THE COMPLETE SHERLOCK HOLMES 243 (1956) (blackmail victim killing blackmailer); id. at 458-73 (similarly); 2 id. at 651-67 (blackmailer killing blackmail victim attempting to kill him); id. at 667-80 (blackmail victim killing blackmailer and fictional detective burgling house to retrieve embarrassing letters), JOHN LE CARRÉ, A MURDER OF QUALITY (1962).
81. See, e.g., AGATHA CHRISTIE, DEATH ON THE NILE 312 (Dodd, Mead 1970) (1937); AGATHA CHRISTIE, ONE, TWO, BUCKLE MY SHOE 215 (Berkeley Books 1984) (1940) ("There is only one effectual method of dealing with a really efficient and experienced blackmailer. Silence him."); ARTHUR CONAN DOYLE, THE COMPLETE SHERLOCK HOLMES 243 (1956) (blackmail victim killing blackmailer); id. at 458-73 (similarly); 2 id. at 651-67 (blackmailer killing blackmail victim attempting to kill him); id. at 667-80 (blackmail victim killing blackmailer and fictional detective burgling house to retrieve embarrassing letters), JOHN LE CARRÉ, A MURDER OF QUALITY (1962).
82. See, e.g., AGATHA CHRISTIE, DEATH ON THE NILE 312 (Dodd, Mead 1970) (1937); AGATHA CHRISTIE, ONE, TWO, BUCKLE MY SHOE 215 (Berkeley Books 1984) (1940) ("There is only one effectual method of dealing with a really efficient and experienced blackmailer. Silence him."); ARTHUR CONAN DOYLE, THE COMPLETE SHERLOCK HOLMES 243 (1956) (blackmail victim killing blackmailer); id. at 458-73 (similarly); 2 id. at 651-67 (blackmailer killing blackmail victim attempting to kill him); id. at 667-80 (blackmail victim killing blackmailer and fictional detective burgling house to retrieve embarrassing letters), JOHN LE CARRÉ, A MURDER OF QUALITY (1962).
83. See, e.g., ADDRESS OF GENERAL OF THE ARMY DOUGLAS MACARTHUR, 97 CONG. REC. 4123, 4125 (1951). ("Like blackmail, [appeasement] lays the basis for new and successively greater demands until, as in blackmail, violence becomes the only alternative.") (my thanks to Todd Geremia for finding this quote); see also infra note 71.
84. See. e.g., 11 GEORGE WILLIAM TAYLOR, CENTRAL CRIMINAL COURT SESSIONS at Dec. 10, 1926 (1927) (providing "News of the World" entry describing failed defense of blackmail victim to charge of defrauding post office) (on file at Harvard Law School Library); see also 2 DOYLE, supra note 69, at 777-78 (wife blackmailed into stealing important paper from her husband).
85. J.C. ELLIS, BLACKMAILERS & Co. 57-66 (1928); see also id. at 57-65 (anecdote of a blackmail- provoked murder); id. at 66 (attempted murder of blackmailer); id. at 73 (suicide by blackmail victim); J. KENNETH FERRIER, CROOKS AND CRIME 174, 176-77 (1928) (noting blackmail as a cause of suicide); F. TENNYSON JESSE, MURDER AND ITS MOTIVES 15, 118 (1924) (discussing murders of blackmailers as a type of "murder for elimination" and noting that "[m]urders of this class are interesting, in that they are of necessity always calculated affairs, even though the motive . . . may spring from a passion"); BASIL TOZER, CONFIDENCE CROOKS AND BLACKMAILERS: THEIR WAYS AND METHODS 226 (1930) ("Several recent suicides are known to have been brought about through terror of blackmailers."). Ironically, a former detective-inspector of Scotland Yard cites with approval the assault of a blackmailer by the sons of the victim. See FERRIER, supra, at 177.
86. J.C. ELLIS, BLACKMAILERS & Co. 57-66 (1928); see also id. at 57-65 (anecdote of a blackmail-provoked murder); id. at 66 (attempted murder of blackmailer); id. at 73 (suicide by blackmail victim); J. KENNETH FERRIER, CROOKS AND CRIME 174, 176-77 (1928) (noting blackmail as a cause of suicide); F. TENNYSON JESSE, MURDER AND ITS MOTIVES 15, 118 (1924) (discussing murders of blackmailers as a type of "murder for elimination" and noting that "[m]urders of this class are interesting, in that they are of necessity always calculated affairs, even though the motive . . . may spring from a passion"); BASIL TOZER, CONFIDENCE CROOKS AND BLACKMAILERS: THEIR WAYS AND METHODS 226 (1930) ("Several recent suicides are known to have been brought about through terror of blackmailers."). Ironically, a former detective-inspector of Scotland Yard cites with approval the assault of a blackmailer by the sons of the victim. See FERRIER, supra, at 177.
87. J.C. ELLIS, BLACKMAILERS & Co. 57-66 (1928); see also id. at 57-65 (anecdote of a blackmail- provoked murder); id. at 66 (attempted murder of blackmailer); id. at 73 (suicide by blackmail victim); J. KENNETH FERRIER, CROOKS AND CRIME 174, 176-77 (1928) (noting blackmail as a cause of suicide); F. TENNYSON JESSE, MURDER AND ITS MOTIVES 15, 118 (1924) (discussing murders of blackmailers as a type of "murder for elimination" and noting that "[m]urders of this class are interesting, in that they are of necessity always calculated affairs, even though the motive . . . may spring from a passion"); BASIL TOZER, CONFIDENCE CROOKS AND BLACKMAILERS: THEIR WAYS AND METHODS 226 (1930) ("Several recent suicides are known to have been brought about through terror of blackmailers."). Ironically, a former detective-inspector of Scotland Yard cites with approval the assault of a blackmailer by the sons of the victim. See FERRIER, supra, at 177.
88. J.C. ELLIS, BLACKMAILERS & Co. 57-66 (1928); see also id. at 57-65 (anecdote of a blackmail- provoked murder); id. at 66 (attempted murder of blackmailer); id. at 73 (suicide by blackmail victim); J. KENNETH FERRIER, CROOKS AND CRIME 174, 176-77 (1928) (noting blackmail as a cause of suicide); F. TENNYSON JESSE, MURDER AND ITS MOTIVES 15, 118 (1924) (discussing murders of blackmailers as a type of "murder for elimination" and noting that "[m]urders of this class are interesting, in that they are of necessity always calculated affairs, even though the motive . . . may spring from a passion"); BASIL TOZER, CONFIDENCE CROOKS AND BLACKMAILERS: THEIR WAYS AND METHODS 226 (1930) ("Several recent suicides are known to have been brought about through terror of blackmailers."). Ironically, a former detective-inspector of Scotland Yard cites with approval the assault of a blackmailer by the sons of the victim. See FERRIER, supra, at 177.
89. See HEPWORTH, supra note 43, at 35-36 (documenting lack of knowledge, even on the part of police, about true extent of blackmail and arguing for major role that stereotype of blackmail as dastardly threatened character assassination plays in public's perception of blackmail).
90. In this Part, I only touch on a few theories which illustrate how different aspects of the blackmail transaction are central to different theories. For a survey and thorough critique of many of the large number of theories that have been proposed, see Lindgren, supra note 1, at 680-701; Lindgren, supra note 31 (reviewing contributions to symposium on blackmail).
91. Lindgren, supra note 1, at 701-05.
92. Murphy, supra note 6, at 158.
93. It is question-begging to point out that in the Baseball Hypothetical, A owns the ball, but in blackmail, A does not own the secret with which he threatens B. If one takes criminal law to protect property rules, see Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 HARV. L. REV. 1089, 1124-27 (1972), then pointing to a property rule does not explain anything unless we can explain why we use the entitlements we do in the two kinds of transactions.
94. This raises the question of original entitlements and how fine-grained the rules of original entitlement should be. See Epstein, supra note 4, at 556 n.5. Resulting transactions of which we disapprove may be very hard to separate as a class from those which are useful. This in itself is not an explanation of blackmail unless we can show why it is worth treating the class of blackmail transactions differently. See Murphy, supra note 6, at 166. That blackmail should be singled out and made criminal has been questioned. See Eric Mack, In Defense of Blackmail, 41 PHIL. STUD. 273 (1982) (arguing against criminalization of blackmail on libertarian grounds). Ethically, at least, hard economic transactions will shade off into areas where property rights seem least defensible. For example, the owner of the last gallon of water in a drought should not expect normal rules to apply.
95. If A asked a price so high that B would not be able to borrow the money or would have to sacrifice paying for the child's medicine, and B stole the ball, he might have a necessity defense. See infra note 143.
96. An example is the premium received by the first plaintiff to settle with a given defendant under offensive collateral estoppel. See Note, Exposing the Extortion Gap: An Economic Analysis of the Rules of Collateral Estoppel, 105 HARV. L. REV. 1940 (1992). Another example is the premium that a plaintiff receives for remaining silent about a settlement. In each case a plaintiff gains by helping to suppress a third party's interests, in Lindgren's sense.
97. Lindgren, supra note 31, at 1978 & n.5.
98. Epstein, supra note 4, at 561-66.
99. Id. at 564; see also Murphy, supra note 6, at 165 (arguing that concealment is the problem with blackmail in the public sphere).
100. See Fletcher, supra note 15 (dominance relation); Katz, supra note 15 (coercion).
101. See Lindgren, supra note 31, at 1977.
102. Id. at 1977-78.
103. See supra notes 56-58 and accompanying text.
104. See supra notes 76-77 and accompanying text.
105. See, e.g., Coase, supra note 16, at 674-76; Fletcher, supra note 15, at 1626, 1637; Murphy, supra note 6, at 166.
106. I discuss blackmail in which the price as well as the threat endangers the victim's reputation in subpart VI.C infra.
107. See, e.g., ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA 84-86 (1974). Nozick proposes the "existence test" for blackmail: if the victim would feel better off if threatener did not exist, the threatener is committing blackmail. As Katz points out, this is merely a test for distinguishing acts and omissions (blackmail is the asking for a payment for an omission), which is merely a good proxy for blackmail but does not explain its harmfulness. Katz, supra note 15, at 1602-03.
108. See Coase, supra note 16, at 671-74; Epstein, supra note 4, at 561-65; Douglas H. Ginsburg & Paul Shechtman, Blackmail: An Economic Analysis of the Law, 141 U. PA. L. REV. 1849, 1865 (1993); Joseph Isenbergh, Blackmail from A to C, 141 U. PA. L. REV. 1905, 1911-15 (1993); Murphy, supra note 6, at 158-59, 165. Murphy notices that such a rationale must depend on who the "victim" is. Generally speaking, we would like no additional incentive to dig for dirt on private individuals than the market already provides and would like to deny public figures the opportunity to buy the suppression of some dirt. See id. The question remains why exactly this level of incentive is the best one, as our concern for privacy is, even on Murphy's account, hardly absolute.
109. See Coase, supra note 16, at 671-74; Epstein, supra note 4, at 561-65; Douglas H. Ginsburg & Paul Shechtman, Blackmail: An Economic Analysis of the Law, 141 U. PA. L. REV. 1849, 1865 (1993); Joseph Isenbergh, Blackmail from A to C, 141 U. PA. L. REV. 1905, 1911-15 (1993); Murphy, supra note 6, at 158-59, 165. Murphy notices that such a rationale must depend on who the "victim" is. Generally speaking, we would like no additional incentive to dig for dirt on private individuals than the market already provides and would like to deny public figures the opportunity to buy the suppression of some dirt. See id. The question remains why exactly this level of incentive is the best one, as our concern for privacy is, even on Murphy's account, hardly absolute.
110. See Landes & Posner, supra note 41, at 42-43 (noting disruption to optimal level of enforcement of laws, given prior balance struck between level of enforcement and level of sanction in criminal law); Richard A. Posner, Blackmail, Privacy, and Freedom of Contract, 141 U. PA. L. REV. 1817, 1821-22 (1993); see also Jennifer G. Brown, Blackmail as Private Justice, 141 U. PA. L. REV. 1935, 1974 (1993). Somewhat related to these theories is the one based on the idea that blackmail will reduce private acts of shaming and thus weaken social norms. See Richard McAdams, Group Norms, Gossip, and Blackmail, 144 U. PA. L. REV. 2237, 2243-56 (1996). On the problems with this approach, see infra note 140 and accompanying text.
111. See Landes & Posner, supra note 41, at 42-43 (noting disruption to optimal level of enforcement of laws, given prior balance struck between level of enforcement and level of sanction in criminal law); Richard A. Posner, Blackmail, Privacy, and Freedom of Contract, 141 U. PA. L. REV. 1817, 1821-22 (1993); see also Jennifer G. Brown, Blackmail as Private Justice, 141 U. PA. L. REV. 1935, 1974 (1993). Somewhat related to these theories is the one based on the idea that blackmail will reduce private acts of shaming and thus weaken social norms. See Richard McAdams, Group Norms, Gossip, and Blackmail, 144 U. PA. L. REV. 2237, 2243-56 (1996). On the problems with this approach, see infra note 140 and accompanying text.
112. See Landes & Posner, supra note 41, at 42-43 (noting disruption to optimal level of enforcement of laws, given prior balance struck between level of enforcement and level of sanction in criminal law); Richard A. Posner, Blackmail, Privacy, and Freedom of Contract, 141 U. PA. L. REV. 1817, 1821-22 (1993); see also Jennifer G. Brown, Blackmail as Private Justice, 141 U. PA. L. REV. 1935, 1974 (1993). Somewhat related to these theories is the one based on the idea that blackmail will reduce private acts of shaming and thus weaken social norms. See Richard McAdams, Group Norms, Gossip, and Blackmail, 144 U. PA. L. REV. 2237, 2243-56 (1996). On the problems with this approach, see infra note 140 and accompanying text.
113. James Lindgren, Blackmail: On Waste, Morals, and Ronald Coase, 36 UCLA L. REV. 597, 601 (1989); Lindgren, supra note 1, at 695.
114. HEPWORTH, supra note 43, at 55, 75-77, 86-87.
115. This is all the more striking because other areas of law do make distinctions based on how information was acquired. For example, contract law protects incentives to acquire information when doing so is beneficial. See Anthony T. Kronman, Mistake, Disclosure, Information, and the Law of Contracts, 7 J. LEGAL STUD. 1, 9-18 (1978) (discussing incentive to produce information and citing example of securities analyst who, in acquiring information about a particular company, incurs cost of researching company and becoming expert in first place).
116. See, e.g., Shavell, supra note 33, at 1902 ("We know that permitting blackmail will lead potential victims to curtail innocent behavior and take other steps to avoid blackmail, and also will induce potential blackmailers to invest efforts in obtaining embarrassing information. These efforts are undesirable and warrant making blackmail illegal.").
117. See Isenbergh, supra note 92, at 1933 ("Nonetheless, I think a plausible case can be made for freer bargaining between B and A over the disclosure of private information, not concerning A's crimes or torts . . . . Second in the balance favoring freer bargaining are possible gains . . . in A's incentives to guard his own privacy.").
118. See Brown, supra note 93, at 1974.
119. See Coase, supra note 16, at 673. Coase's theory also veers in the dominance-coercion direction. See id. at 675.
120. See id. at 674.
121. See supra notes 40, 43-50 and accompanying text.
122. On the role of private detectives in digging up dirt and related activities as costs of divorce litigation in earlier times, see LAWRENCE STONE, ROAD TO DIVORCE: ENGLAND 1530-1987, at 187, 224, 355-56 (1990).
123. Coase, supra note 16, at 67 (citing CRIMINAL LAW REVISION COMMITTEE, EIGHTH REPORT, THEFT AND RELATED OFFENSES, Cmnd. No. 2977, at 61 (1966)). Coase collects other statements reflecting extreme concern about blackmail. Id.
124. The common law of unenforceability of agreements in restraint of trade is an example. For a description, see E. ALLAN FARNSWORTH, CONTRACTS § 5.3 (2d ed. 1990).
125. These assumptions are being made only for the purposes of analyzing blackmail and need not hold for the argument to go through.
126. AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS § 312.31, at 616 (4th ed. 1994) (defining "pathological gambling" and presenting diagnostic criteria).
127. Id. at 618.
128. Id. Others include the fact that the individual "has jeopardized or lost a significant relationship, job, or educational or career opportunity because of gambling," and that the individual "relies on others to provide money to relieve a desperate financial situation caused by gambling." Id.
129. See id. For Pathological Gambling to be found, five or more of the ten listed criteria must be present and "[t]he gambling behavior is not better accounted for by a Manic Episode." Id.
130. Theoretically, marginal benefit and marginal cost of criminalization should be equal at the optimal level of criminalization. And because the benefit of earlier units of criminalization are expected to outweigh their costs, the total cost at the optimal point is not expected to equal total benefits at the optimal point (if it is nonzero). For this reason, the ">" is not a "≥" in the text.
131. What I am calling a "cumulation-of-factors" theory is to be distinguished from a "patchwork" theory, which is a theory requiring multiple partially overlapping explanations to cover the domain of informational blackmail. For a defense of the patchwork approach, see Scott Altman, A Patchwork Theory of Blackmail, 141 U. PA. L. REV. 1639 (1993).
132. At worst, such a theory winds up being a restatement of the problem.
133. See CALABRESI, supra note 12, at 95-111 (proposing framework for appropriateness of specific deterrence).
134. DeLong, supra note 15, at 1687; Wendy J. Gordon, Truth and Consequences: The Force of Blackmail's Central Case, 142 U. PA. L. REV. 1741, 1775-77 (1993); Posner, supra note 93, 1837-38.
135. RICHARD A. POSNER, OVERCOMING LAW 550 (1995).
136. See supra note 95 and accompanying text.
137. POSNER, supra note 116, at 550.
138. The game in normal form would be as follows: (table presented) It must be kept in mind both that the blackmailer makes the first move as to whether to blackmail (not represented here in the normal form game) and that the victim moves next in choosing whether or not to pay. Finally the blackmailer decides whether or not to keep the secret.
139. As will emerge shortly, in deterrence we are concerned with whether these later moves make it worthwhile for the blackmailer to make the first move of the overall game, i.e., whether to make the blackmail threat or not. Basically, if the costs (e.g., criminal sanction, transaction costs) discounted by their probability outweigh the possible benefits (e.g., payment, gains in reputation for toughness) discounted by their probability, the blackmailer will not make the threat.
140. And thus each of the victim's broad choices here embraces choices of harmful self-help identified above. Right now we are concerned with the question of deterring the blackmailer.
141. I return shortly to the effect of a more realistic assumption of partial uncertainty about the other player's payoffs.
142. Whether the value is 0 or some other number greater than -10 is not important. Under some choices embraced by "not paying," the victim faces, for example, the hassle of informing and testifying, the anxiety of waiting, or the risk of prosecution for certain self-help measures, but on the other hand the victim may feel civic pride in informing or satisfaction at having turned in or otherwise harmed the blackmailer.
143. That is, the difference between the payoffs under nodes A and B is even larger when blackmail is a crime. However, because the numbers 9 and 10 are arbitrary to begin with - chosen only to represent the blackmailer's optimal strategy of silence if the victim pays, and not the precise payoff differential - I will continue to use them.
144. See supra notes 116-17 and accompanying text.
145. See Shavell, supra note 33, at 1883-84 (noting possibilities of detection of blackmail).
146. See HEPWORTH, supra note 43, at 76-77; see also supra note 95 and accompanying text.
147. Which of x or y it will be depends on whether x > y or y > x. If x = y, the terms on the left will be the same and we need not choose between them.
148. Again, if x = y, the terms on the left will be the same. See supra note 128.
149. See DeLong, supra note 15, at 1685-92; Lindgren, supra note 31, at 1979
150. James Lindgren, The Theory, History, and Practice of the Bribery-Extortion Distinction, 141 U. PA. L. REV. 1695, 1695-1700 (1993).
151. See DeLong, supra note 15, at 1685-86.
152. See supra note 81 and accompanying text.
153. See DeLong, supra note 15, at 1672-74.
154. See supra subpart IV.B.
155. See supra note 89 and accompanying text.
156. Epstein builds his theory of blackmail on the danger of solicitation of crimes like fraud by the blackmailer. Epstein, supra note 4, at 564. On the limits of this approach, see supra subpart IV.A. This is indeed a danger but, on the present theory, is only a minor special case of the harms we can expect from the victim's skewed cost-benefit analysis.
157. While it is true that the crime of solicitation covers such a case, it is also true that solicitation-by-blackmail seems particularly likely to succeed because the solicited blackmail victim will value secrecy so highly. Because this type of solicitation is so effective, a bigger deterrent is necessary. It is not wholly irrational to add the extra deterrent against solicitation-by-blackmail through the criminalization of blackmail. This is especially true if blackmail generally is seen as harmful anyway both for the reasons discussed in this paper and for those stressed by previous commentators.
158. Cf. Furlotte v. State, 350 S.W.2d 72 (Tenn. 1961) (finding extortion under statute where defendant's threat to injure induced victim to sign statement that victim had illicit love affair with defendant's wife but defendant extracted no direct pecuniary gain).
159. McAdams, supra note 93, at 2243-56.
160. There is a need to separate out secrecy due to the nature of blackmail and the secrecy due to its illegality. If blackmail were legal, the blackmail could theoretically be open to the extent that the existence of the negotiations and the transaction were known. Contrast with this the need for secrecy of the discrediting information. Often, however, the two are linked; the victim has an interest in preventing others from knowing the existence of a damaging fact as well as the fact itself.
161. See LAFAVE & SCOTT, supra note 24, § 5.4(d)(5) & n.50.
162. It is conceivable that, subject to the imminence requirement, the offeree would have a necessity defense to stealing to pay for the ball too, reducing the chance for violence. Generally, transactions of this type are not causally linked to other problems in the way blackmail is.
163. It should be emphasized that sympathy for the father is not the only or the main difference between the Baseball Hypothetical and blackmail, since there are of course limits to the law's sympathy for the father in the Baseball Hypothetical. The law would not, for example, allow the father to kill someone to save his son's life. The comparison does raise the interesting question of how much the "reasonable" blackmail victim would do and how far the law's partial sympathy with the blackmail victim would extend.
164. See Robinson v. California, 370 U.S. 660, 667 (1962) (holding that statute criminalizing mere addiction to narcotics punished status in violation of Eighth and Fourteenth Amendments' prohibition on cruel and unusual punishments).
165. Coase, supra note 16, at 675-76.