Competing theories of blackmail: An empirical research critique of criminal law theory

Texas Law Review

Volumn 89, Issue 2, 2011, Pages 291-352

  Robinson, Paul H ^a   Cahill, Michael T ^b   Bartels, Daniel M ^c  

^a UNIVERSITY OF PENNSYLVANIA LAW SCHOOL   (United States)

^b BROOKLYN LAW SCHOOL   (United States)

^c The Sanford C Bernstein Co Center for Leadership and Ethics

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[No Author keywords available]

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EID: 79952956592     PISSN: 00404411     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (362)

1. See Bill Carter & Brian Stelter, Extortion Case Raises Questions for Letterman and His Network, N.Y. TIMES, Oct. 3, 2009, at A1 (describing Robert Halderman's attempt to obtain two million dollars from Letterman in exchange for not revealing Letterman's lurid sexual history)
2. Bill Carter, Inside CBS, Disbelief at an Arrest, N.Y. TIMES, Oct. 8, 2009, at B1 (chronicling CBS employees' astonished reactions to the Halderman allegations)
3. Lizzie Widdicombe, Brainteaser: You've Got Mail, NEW YORKER, Oct. 19, 2009, at 28 (using the Letterman case as springboard to a discussion of the intellectual riddle of blackmail).
4. See, e.g., James Lindgren, Unraveling the Paradox of Blackmail, 84 COLUM. L. REV. 670, 671 (1984) (contemplating the paradox that a blackmailer combines a legal means and a legal end to achieve an illegal result).
5. See, e.g., 4 JOEL FEINBERG, THE MORAL LIMITS OF THE CRIMINAL LAW: HARMLESS WRONGDOING 240 (1988) (noting that "the exploitation principle provides a rationale for blackmail laws where the liberal's unsupplemented harm principle finds only a 'paradox'")
6. Mitchell N. Berman, The Evidentiary Theory of Blackmail: Taking Motives Seriously, 65 U. CHI. L. REV. 795, 797-98 (1998) (proffering a theory of blackmail where the overt act of blackmail serves only the evidentiary function of helping a fact finder separate disclosures of embarrassing information based on acceptable motivations from disclosures based on unacceptable motivations)
7. Ronald H. Coase, The 1987 McCorkle Lecture: Blackmail, 74 VA. L. REV. 655, 674-75 (1988) (noting a variety of distinctions between blackmail and business negotiations, such as the fact that instances of blackmail are not constrained by market competition or the hope of future business relations)
8. Richard A. Epstein, Blackmail, Inc., 50 U. CHI. L. REV. 553, 566 (1983) (arguing that blackmail is criminalized because the demand is usually "part of an overall scheme of abuse, itself rife with coercive and fraudulent elements, " and that "[b]lackmail is made a crime not only because of what it is, but because of what it necessarily leads to")
9. George P. Fletcher, Blackmail: The Paradigmatic Crime, 141 U. PA. L. REV. 1617, 1626 (1993) (suggesting that "the proper test [for whether an act should constitute blackmail]... is whether the transaction with the suspected blackmailer generates a relationship of dominance and subordination")
10. Douglas H. Ginsburg & Paul Shechtman, Blackmail: An Economic Analysis of the Law, 141 U. PA. L. REV. 1849, 1873 (1993) (arguing that blackmail prohibition is an "economically rational rule" because "[i]f such threats were lawful, there would be an incentive for people to expend resources to develop embarrassing information about others in the hope of then selling their silence")
11. Leo Katz, Blackmail and Other Forms of Arm-Twisting, 141 U. PA. L. REV. 1567, 1615 (1993) (defining blackmail as a situation in which the circumstances lead the victim to "prefer to be subjected to a greater rather than a lesser wrong")
12. Jeffrie G. Murphy, Blackmail: A Preliminary Inquiry, 63 MONIST 156, 163-66 (1980) (turning to the social policies of preventing invasions of privacy, protecting the free press from being outpriced by private negotiation, and increasing the availability of information on public officials to justify the distinction between legal economic transactions and illegal instances of blackmail)
13. Richard A. Posner, Blackmail, Privacy, and Freedom of Contract, 141 U. PA. L. REV. 1817, 1820 (1993) (stating that blackmail "diminishes social wealth" and is a "sterile redistributive activity" comparable to "(simple) theft")
14. Steven Shavell, An Economic Analysis of Threats and Their Illegality: Blackmail, Extortion, and Robbery, 141 U. PA. L. REV. 1877, 1903 (1993) (stating that "there is still an obvious incentive-based reason for making blackmail illegal: to avoid being blackmailed by [persons] who might by chance be present, potential victims will exercise excessive precautions or reduce their level of innocent, yet embarrassing, activities").
15. See, e.g., Douglas H. Ginsburg & Paul Shechtman, Blackmail: An Economic Analysis of the Law, 141 U. PA. L. REV. 1849, 1873 (1993), at 1850 (applying an economic analysis to the criminalization of blackmail and finding the criminalization consistent with economic rationality).
16. See, e.g., Mitchell N. Berman, The Evidentiary Theory of Blackmail: Taking Motives Seriously, 65 U. CHI. L. REV. 795, 797-98 (1998), at 798 ("[S]ociety can punish the blackmailer... because the [blackmailer] causes (or threatens) harm while acting with morally culpable motives. ").
17. Mitchell N. Berman, Blackmail (manuscript at 6, 7 & n.7) (on file with authors) (embracing the reflective equilibrium approach and expressing the belief "that most blackmail theorists share these methodological commitments"), in OXFORD HANDBOOK ON THE PHILOSOPHY OF THE CRIMINAL LAW (John Deigh & David Dolinko eds., forthcoming 2010).
18. See, e.g., Richard A. Epstein, Blackmail, Inc., 50 U. CHI. L. REV. 553, 566 (1983), at 566 ("[T]he [blackmail] demand will not take place in isolation, but will be part of an overall scheme of abuse, itself rife with coercive and fraudulent elements.... Blackmail should be a criminal offense even under the narrow theory of criminal activities because it is the handmaiden to corruption and deceit. ")
19. Richard A. Posner, Blackmail, Privacy, and Freedom of Contract, 141 U. PA. L. REV. 1817, 1820 (1993), at 1832 ("In the face of this uncertainty [if blackmail were legal], the safest guess is that allowing the blackmailing... would yield a net social loss equal to the resources expended in blackmailing and in defending against blackmailing [to protect secrets]. ").
20. Given this limitation, one may wonder about the value of such theories as they relate to the development of substantive criminal law.
21. See Mitchell N. Berman, The Evidentiary Theory of Blackmail: Taking Motives Seriously, 65 U. CHI. L. REV. 795, 797-98 (1998), at 848-51 (summarizing the evidentiary theory)
22. Mitchell N. Berman, Meta-Blackmail and the Evidentiary Theory: Still Taking Motives Seriously, 94 GEO. L.J. 787, 789 (2006) [hereinafter Berman, Meta-Blackmail] (arguing that the evidentiary theory explains why blackmail is coercive)
23. Mitchell N. Berman, Book Review, On the Moral Structure of White Collar Crime, 5 OHIO ST. J. CRIM. L. 301, 322-25 (2007) [hereinafter Berman, White Collar Crime] (putting forth an abridged version of the evidentiary theory)
24. Mitchell N. Berman, Blackmail (manuscript at 6, 7 & n.7) (manuscript at 58-59) (discussing how the evidentiary theory relates to morality).
25. Mitchell N. Berman, Blackmail (manuscript at 6, 7 & n.7) (manuscript at 36).
26. Mitchell N. Berman, The Evidentiary Theory of Blackmail: Taking Motives Seriously, 65 U. CHI. L. REV. 795, 797-98 (1998), at 323.
27. Mitchell N. Berman, The Evidentiary Theory of Blackmail: Taking Motives Seriously, 65 U. CHI. L. REV. 795, 797-98 (1998), at 839-40
28. Mitchell N. Berman, Meta-Blackmail and the Evidentiary Theory: Still Taking Motives Seriously, 94 GEO. L.J. 787, 789 (2006), at 791.
29. See Mitchell N. Berman, Blackmail (manuscript at 6, 7 & n.7) (manuscript at 55, 56 n.118) (dispelling Michael Gorr's blackmail approach by discussing the importance of the actor's belief and knowledge regarding what he "morally ought to do" in the blackmail puzzle).
30. See Mitchell N. Berman, Blackmail (manuscript at 6, 7 & n.7) (manuscript at 6-7) (discussing individual intuitions in terms of blackmail).
31. Mitchell N. Berman, Blackmail (manuscript at 6, 7 & n.7) (manuscript at 7 & n.7).
32. See Leo Katz, Blackmail and Other Forms of Arm-Twisting, 141 U. PA. L. REV. 1567, 1615 (1993), at 1599 (stating that blackmail requires a threat of at least mildly wrongful conduct).
33. Leo Katz, Blackmail and Other Forms of Arm-Twisting, 141 U. PA. L. REV. 1567, 1615 (1993) at 1598.
34. See Leo Katz, Blackmail and Other Forms of Arm-Twisting, 141 U. PA. L. REV. 1567, 1615 (1993) (noting the case where a threatened act "is immoral only because, if it were to be done, it would be done for purely retaliatory reasons-retaliation for [the victim's] refusal to pay")
35. Leo Katz, Blackmail and Other Forms of Arm-Twisting, 141 U. PA. L. REV. 1567, 1615 (1993). at 1600 (discussing the nonhiring of a job applicant who refuses to have sex with her employer as wrongful because it would be retaliatory)
36. Leo Katz, Blackmail and Other Forms of Arm-Twisting, 141 U. PA. L. REV. 1567, 1615 (1993). at 1602. Katz has a similar response when addressing the situation of reporting information to the IRS out of a retaliatory motivation: Feinberg is incorrect about such cases as the proposal to withhold damaging information from the IRS, because a retaliatory reporting of such information to the IRS, (i.e., the reporting of such information not to help the government, but to settle a score) strikes us as quite immoral, not immoral at the level of criminality or tortiousness, but immoral all the same. Leveraging such immoral conduct into a substantial gain then becomes blameworthy at the level of theft.
37. Leo Katz, Blackmail and Other Forms of Arm-Twisting, 141 U. PA. L. REV. 1567, 1615 (1993). at 1602
38. Leo Katz, Blackmail and Other Forms of Arm-Twisting, 141 U. PA. L. REV. 1567, 1615 (1993). at 1602 at 1578
39. see also Leo Katz, Blackmail and Other Forms of Arm-Twisting, 141 U. PA. L. REV. 1567, 1615 (1993). at 1602 at 1580 (finding fault with Feinberg's theory because it fails to include a case that "is viewed by many as the quintessential blackmail case")
40. Leo Katz, Blackmail and Other Forms of Arm-Twisting, 141 U. PA. L. REV. 1567, 1615 (1993). at 1602 at 1581 (assessing Lindgren's theory by noting that it "pretty closely matches our intuitions at the descriptive level, although it seems perhaps a bit underinclusive" as it fails to "account for several cases which many would agree clearly reek of blackmail").
41. Leo Katz, Blackmail and Other Forms of Arm-Twisting, 141 U. PA. L. REV. 1567, 1615 (1993). at 1602 at 1615.
42. See George P. Fletcher, Blackmail: The Paradigmatic Crime, 141 U. PA. L. REV. 1617, 1626 (1993), at 1626-29 (proposing a dominance-and-subordination test and applying it to a set of paradigmatic situations).
43. George P. Fletcher, Blackmail: The Paradigmatic Crime, 141 U. PA. L. REV. 1617, 1626 (1993). at 1617.
44. See George P. Fletcher, Blackmail: The Paradigmatic Crime, 141 U. PA. L. REV. 1617, 1626 (1993) at 1623 ("I am skeptical about whether a coherent account is available for these parallel distinctions between threats and offers and between nonproductive and productive exchanges. ").
45. George P. Fletcher, Blackmail: The Paradigmatic Crime, 141 U. PA. L. REV. 1617, 1626 (1993) at 1627-28.
46. See, e.g., George P. Fletcher, Blackmail: The Paradigmatic Crime, 141 U. PA. L. REV. 1617, 1626 (1993) at 1617-19 (describing ten paradigmatic hypothetical situations, including, inter alia, criminal and noncriminal informational blackmail situations).
47. George P. Fletcher, Blackmail: The Paradigmatic Crime, 141 U. PA. L. REV. 1617, 1626 (1993) at 1627.
48. See JOEL FEINBERG, THE MORAL LIMITS OF THE CRIMINAL LAW: HARMLESS WRONGDOING 240 (1988), at 211-13, 238-58 (defining five categories of blackmail-like threats and analyzing their wrongfulness in light of the harm caused to the victim, the harm caused to society, and the unjust gain to the blackmailer).
49. See JOEL FEINBERG, THE MORAL LIMITS OF THE CRIMINAL LAW: HARMLESS WRONGDOING 240 (1988) at 241-45 (arguing that members of society do not have a right to withhold reports of a crime because nondisclosure causes a public harm).
50. See JOEL FEINBERG, THE MORAL LIMITS OF THE CRIMINAL LAW: HARMLESS WRONGDOING 240 (1988) at 249-58 (noting that one has a civil duty not to make accusations known to be false and arguing that one has a moral duty to refrain from making truthful accusations of past wrongful conduct or conduct that is innocent but embarrassing).
51. See JOEL FEINBERG, THE MORAL LIMITS OF THE CRIMINAL LAW: HARMLESS WRONGDOING 240 (1988) at 245-49 (arguing that blackmail should only be criminalized in situations where the threatened disclosure or offered failure to disclose would in itself violate a legal or civic duty)
52. JOEL FEINBERG, THE MORAL LIMITS OF THE CRIMINAL LAW: HARMLESS WRONGDOING 240 (1988) at 275 ("I don't see how a coherent criminal code based on liberal principles... can prohibit people from offering, in exchange for consideration, not to do what they have an independent legal right (but no legal duty) to do.").
53. See JOEL FEINBERG, THE MORAL LIMITS OF THE CRIMINAL LAW: HARMLESS WRONGDOING 240 (1988) at 240, 246 (noting that only some types of blackmail are paradoxical but that criminalization of these types cannot be justified on principles of liberalism)
54. JOEL FEINBERG, THE MORAL LIMITS OF THE CRIMINAL LAW: HARMLESS WRONGDOING 240 (1988) at 258 (stating that criminalization in a liberal penal code should only be allowed if it "would not stumble over the paradox of blackmail")
55. JOEL FEINBERG, THE MORAL LIMITS OF THE CRIMINAL LAW: HARMLESS WRONGDOING 240 (1988) at 275 (noting of his argument for decriminalizing certain commonly recognized instances of blackmail, "I came to this radical conclusion only because I take the argument of the 'paradox of blackmail' very seriously").
56. JOEL FEINBERG, THE MORAL LIMITS OF THE CRIMINAL LAW: HARMLESS WRONGDOING 240 (1988) at 243.
57. JOEL FEINBERG, THE MORAL LIMITS OF THE CRIMINAL LAW: HARMLESS WRONGDOING 240 (1988) at 244.
58. See JOEL FEINBERG, THE MORAL LIMITS OF THE CRIMINAL LAW: HARMLESS WRONGDOING 240 (1988) at 253 (asserting that "[t]he important point is that 'the law'... imposes a duty, " not whether the legal duty is criminal or civil).
59. See JOEL FEINBERG, THE MORAL LIMITS OF THE CRIMINAL LAW: HARMLESS WRONGDOING 240 (1988) at 250-51 (arguing that the duty to not disclose certain damaging information, as imposed by the tort law of privacy invasions, justifies criminalization of blackmail in such cases).
60. See JOEL FEINBERG, THE MORAL LIMITS OF THE CRIMINAL LAW: HARMLESS WRONGDOING 240 (1988) at 254-56 (supporting recognition of such a legal claim).
61. See JOEL FEINBERG, THE MORAL LIMITS OF THE CRIMINAL LAW: HARMLESS WRONGDOING 240 (1988) at 254 ("It is open to the liberal, however, to argue that there ought to be a civil remedy for such moral wrongs, so that he can argue for criminalization... without being thwarted by the paradox of blackmail.").
62. JOEL FEINBERG, THE MORAL LIMITS OF THE CRIMINAL LAW: HARMLESS WRONGDOING 240 (1988) at 249.
63. See JOEL FEINBERG, THE MORAL LIMITS OF THE CRIMINAL LAW: HARMLESS WRONGDOING 240 (1988) at 275 ("I have tried to find a liberal alternative to the legal moralist's account of blackmail....").
64. JOEL FEINBERG, THE MORAL LIMITS OF THE CRIMINAL LAW: HARMLESS WRONGDOING 240 (1988) at 249.
65. JOEL FEINBERG, THE MORAL LIMITS OF THE CRIMINAL LAW: HARMLESS WRONGDOING 240 (1988) at 249.
66. JOEL FEINBERG, THE MORAL LIMITS OF THE CRIMINAL LAW: HARMLESS WRONGDOING 240 (1988) at 239.
67. JOEL FEINBERG, THE MORAL LIMITS OF THE CRIMINAL LAW: HARMLESS WRONGDOING 240 (1988) at 276.
68. See JOEL FEINBERG, THE MORAL LIMITS OF THE CRIMINAL LAW: HARMLESS WRONGDOING 240 (1988) at 245-49 (concluding that threats to expose adultery should not be criminalized as blackmail because imposing a duty to reveal, or not to reveal, adultery would be inconsistent with liberal principles).
69. See James Lindgren, Blackmail: An Afterword, 141 U. PA. L. REV. 1975, 1981 (1993) (explaining the theory that "someone who threatens to expose criminality or tortious behavior [is] trading on leverage that properly belongs to others")
70. James Lindgren, Unraveling the Paradox of Blackmail, 84 COLUM. L. REV. 670, 671 (1984), at 702 ("What makes [the blackmailer's] conduct blackmail is that [the blackmailer] interposes himself parasitically in an actual or potential dispute in which he lacks a sufficiently direct interest. ").
71. James Lindgren, Unraveling the Paradox of Blackmail, 84 COLUM. L. REV. 670, 671 (1984), at 702.
72. James Lindgren, Unraveling the Paradox of Blackmail, 84 COLUM. L. REV. 670, 671 (1984) at 680.
73. See James Lindgren, Unraveling the Paradox of Blackmail, 84 COLUM. L. REV. 670, 671 (1984) at 714 (asserting there is "no blackmail" if "[t]here is a perfect congruence between the advantage sought... and the leverage used").
74. James Lindgren, Unraveling the Paradox of Blackmail, 84 COLUM. L. REV. 670, 671 (1984) at 715.
75. James Lindgren, Unraveling the Paradox of Blackmail, 84 COLUM. L. REV. 670, 671 (1984) at 672.
76. See, e.g., Ronald H. Coase, The 1987 McCorkle Lecture: Blackmail, 74 VA. L. REV. 655, 674-75 (1988), at 674 (opining that blackmailers inefficiently expend resources gathering and transacting for the nondisclosure of information)
77. Richard A. Epstein, Blackmail, Inc., 50 U. CHI. L. REV. 553, 566 (1983), at 561, 566 (concluding that blackmail should be criminalized because, while an economic analysis of only the actions comprising the blackmail transaction may seem favorable, a broader analysis would take into account the host of inefficient auxiliary behavior encouraged by blackmail)
78. Douglas H. Ginsburg & Paul Shechtman, Blackmail: An Economic Analysis of the Law, 141 U. PA. L. REV. 1849, 1873 (1993), at 1873 (concluding that blackmail is economically inefficient because it encourages people to expend resources to gain information to protect information)
79. William M. Landes & Richard A. Posner, The Private Enforcement of Law, 4 J. LEGAL STUD. 1, 26 (1975) (discussing the many ways in which private enforcement of laws through blackmail would incentivize inefficient behavior like fabricating evidence or entrapping victims)
80. Richard H. McAdams, Group Norms, Gossip, and Blackmail, 144 U. PA. L. REV. 2237, 2292 (1996) (demonstrating that a ban on blackmail combined with social norms will produce the most efficient distribution of information)
81. Richard A. Posner, Blackmail, Privacy, and Freedom of Contract, 141 U. PA. L. REV. 1817, 1820 (1993), at 1818 (arguing that, while blackmail is a voluntary transaction, it should be prohibited because it is on average wealth reducing)
82. Steven Shavell, An Economic Analysis of Threats and Their Illegality: Blackmail, Extortion, and Robbery, 141 U. PA. L. REV. 1877, 1903 (1993), at 1902 (explaining that economic analysis supports criminalizing blackmail because of blackmail's tendency to incentivize wasteful gathering and protecting of information).
83. See, e.g., Richard A. Epstein, Blackmail, Inc., 50 U. CHI. L. REV. 553, 566 (1983), at 564-65 (pointing out that the opportunity for legalized blackmail will give blackmailers an incentive to help their victims perpetuate fraud)
84. Steven Shavell, An Economic Analysis of Threats and Their Illegality: Blackmail, Extortion, and Robbery, 141 U. PA. L. REV. 1877, 1903 (1993), at 1894-95 (analyzing the effect of blackmail on the incentive to expend effort to obtain information and to take preventative measures to avoid being blackmailed).
85. See Richard A. Posner, Blackmail, Privacy, and Freedom of Contract, 141 U. PA. L. REV. 1817, 1820 (1993), at 42-43 (applying the concept of economically efficient private enforcement of laws to comment on the status of blackmail and concluding that society permits the private enforcement of blackmail-like demands where additional public enforcement would, according to broad social norms, not be worth the expenditure associated with the additional enforcement).
86. Richard A. Posner, Blackmail, Privacy, and Freedom of Contract, 141 U. PA. L. REV. 1817, 1820 (1993) (suggesting that blackmail by private individuals can substitute for public law enforcement because the amount that the blackmailed person should be willing to pay is equal to the cost of the penalty that law enforcement would impose).
87. See Jeffrie G. Murphy, Blackmail: A Preliminary Inquiry, 63 MONIST 156, 163-66 (1980) (discussing possible incentive-based justifications for a prohibition against blackmail).
88. See Jeffrie G. Murphy, Blackmail: A Preliminary Inquiry, 63 MONIST 156, 163-66 (1980) at 159-60, 163-66 (stating that "the protection of privacy does play a role in justifying the criminalization of blackmail" and discussing different privacy issues).
89. See Jeffrie G. Murphy, Blackmail: A Preliminary Inquiry, 63 MONIST 156, 163-66 (1980) at 159 (arguing that a blackmailer acts wrongly "not because he is simply proposing an unjust economic transaction, but because he is economizing a part of life which he has no right to economize").
90. Jeffrie G. Murphy, Blackmail: A Preliminary Inquiry, 63 MONIST 156, 163-66 (1980) at 164.
91. See Ronald H. Coase, The 1987 McCorkle Lecture: Blackmail, 74 VA. L. REV. 655, 674-75 (1988), at 674 (opining that blackmailers inefficiently expend resources gathering and transacting for the nondisclosure of information)
92. See Joseph Isenbergh, Blackmail From A to C, 141 U. PA. L. REV. 1905, 1907 (1993) (arguing that any justification for blackmail must "lie in the particular nature of information" and that for this reason it makes sense to criminalize certain forms of blackmail and not others).
93. Joseph Isenbergh, Blackmail From A to C, 141 U. PA. L. REV. 1905, 1907 (1993) at 1927.
94. Joseph Isenbergh, Blackmail From A to C, 141 U. PA. L. REV. 1905, 1907 (1993) at 1908.
95. Joseph Isenbergh, Blackmail From A to C, 141 U. PA. L. REV. 1905, 1907 (1993) at 1929.
96. Joseph Isenbergh, Blackmail From A to C, 141 U. PA. L. REV. 1905, 1907 (1993) at 1930.
97. Joseph Isenbergh, Blackmail From A to C, 141 U. PA. L. REV. 1905, 1907 (1993) at 1928-29.
98. See, e.g., 1 MURRAY N. ROTHBARD, MAN, ECONOMY, AND STATE 443 n.49 (1970) ("[B]lackmail would not be illegal in the free society. For blackmail is the receipt of money in exchange for the service of not publicizing certain information about the other person. ")
99. Walter Block, Berman on Blackmail: Taking Motives Fervently, 3 FLA. ST. U. BUS. REV. 57, 61-62 (2003) (defining the libertarian view of blackmail as criminalizing something that the blackmailer has the right to do)
100. Walter Block, The Case for De-criminalizing Blackmail: A Reply to Lindgren and Campbell, 24 W. ST. U. L. REV. 225, 225-26 (1997) (discussing how a transaction where one refrains from gossip for consideration from another party should be legal)
101. Eric Mack, In Defense of Blackmail, 41 PHIL. STUD. 273, 273-74 (1982) (arguing that blackmail should not be prevented by the police power of the state)
102. Ronald Joseph Scalise, Jr., Comment, Blackmail, Legality, and Liberalism, 74 TUL. L. REV. 1483, 1506 (2000) ("In a liberal legal system, all voluntary actions between consenting adults are allowable. ").
103. See Russell L. Christopher, Meta-Blackmail, 94 GEO. L.J. 739, 746 (2006) [hereinafter Christopher, Meta-Blackmail] (originating the concept of meta-blackmail)
104. Russell L. Christopher, The Trilemma of Meta-Blackmail: Is Conditionally Threatening Blackmail Worse, the Same, or Better Than Blackmail Itself?, 94 GEO. L.J. 813, 813 (2006) (asking whether meta-blackmail may be more severe than simple blackmail).
105. See Russell L. Christopher, Meta-Blackmail, 94 GEO. L.J. 739, 746 (2006), at 747-48 ("Resolving the trilemma of meta-blackmail either forces the decriminalization of blackmail or adds considerably to the already difficult puzzles to be surmounted in justifying the criminalization of blackmail. ").
106. See Mitchell N. Berman, Blackmail (manuscript at 6, 7 & n.7) (manuscript at 41-43) (arguing for the existence of a basis for differentiating meta-blackmail and blackmail)
107. Mitchell N. Berman, Meta-Blackmail and the Evidentiary Theory: Still Taking Motives Seriously, 94 GEO. L.J. 787, 789 (2006), at 788 (arguing that the meta-blackmail "conceit" does not properly address the "widely and deeply held" opinion that some conditional threats to perform legal acts are properly criminalized).
108. See Mitchell N. Berman, Blackmail (manuscript at 6, 7 & n.7) (manuscript at 36-38) (noting the basis for the libertarian position and asserting that it "rests on a fairly straightforward, easily articulated and understood, major premise that the overwhelming majority of contemporary theorists of the criminal law simply reject").
109. See Russell L. Christopher, Meta-Blackmail, 94 GEO. L.J. 739, 746 (2006), at 784-85 (arguing that "[c]riminalizing blackmail violates intuitions that are more compelling than the intuition that blackmail is properly criminalized").
110. The standard blackmail case is one in which an actor threatens to disclose a damaging secret if the victim does not pay her some amount of money. Terminology varies from jurisdiction to jurisdiction; most prohibit the blackmail offense via a statute covering "criminal coercion, " "extortion, " "intimidation, " "threats, " or a similar term.
111. Interestingly, statutes also vary on the breadth of the range of prohibited threats, as opposed to the range of demands. All prohibit threats to disclose damaging secrets or expose a committed crime; many also criminalize threats to injure the victim or her property, to impugn the character of the victim or of some third party, to commit a crime, etc. However, these distinctions are irrelevant in the context of this study; it will suffice to note that all jurisdictions criminalize the threat inherent to traditional blackmail.
112. Thirty-three jurisdictions have broad ranges of prohibited demands: Alaska, Arkansas, Colorado, Connecticut, Florida, Hawaii, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, New Jersey, New Mexico, New York, North Carolina, North Dakota, Oklahoma, Pennsylvania, Rhode Island, Tennessee, Vermont, Washington, Wisconsin, Wyoming, and the District of Columbia. See ALASKA STAT. §§ 11.41.520,.530 (2008)
113. ARK. CODE ANN. §§ 5-13-208, 5-36-101,-103 (2006)
114. COLO. REV. STAT. ANN. § 18-3-207 (West 2009)
115. CONN. GEN. STAT. ANN. §§ 53a-119,-192 (West 2007)
116. FLA. STAT. ANN. § 836.05 (West 2005)
117. HAW. REV. STAT. ANN. § 707-764 (LexisNexis 2007)
118. 720 ILL. COMP. STAT. ANN. 5/12-6 (West 2007)
119. IND. CODE § 35-45-2-1 (2004)
120. IOWA CODE ANN. § 711.4 (West 2009)
121. KAN. STAT. ANN. § 21-3428 (2007)
122. KY. REV. STAT. ANN. §§ 509.080, 514.080 (LexisNexis 2008)
123. LA. REV. STAT. ANN. § 14:66 (2007)
124. MD. CODE ANN., CRIM. LAW §§ 3-701 to 3-708 (LexisNexis 2002)
125. MASS. GEN. LAWS ANN. ch. 265, § 25 (West 2000)
126. MICH. COMP. LAWS ANN. § 750.213 (West 2009)
127. MINN. STAT. ANN. §§ 609.27-.275 (West 2009)
128. MISS. CODE ANN. § 97-3-82 (West 2006)
129. MO. ANN. STAT. § 570.010 (West 1999)
130. MONT. CODE ANN. §§ 45-2-101, 45-5-305(1)(f), 45-6-301 (2008)
131. N.J. STAT. ANN. §§ 2C:13-5, 2C:20-5 (West 2005)
132. N.M. STAT. ANN. § 30-16-9 (LexisNexis 2000)
133. N.Y. PENAL LAW §§ 135.60, 155.05 (McKinney 2008)
134. N.C. GEN. STAT. §§ 14-118, 118.4 (2007)
135. N.D. CENT. CODE §§ 12.1-17-06, 12.1-23-02,-23-10(12) (1997)
136. OKLA. STAT. ANN. tit. 21, § 1488 (West 2003)
137. 18 PA. CONS. STAT. ANN. §§ 2906, 3923 (West 2009)
138. R.I. GEN. LAWS § 11-42-2 (2002)
139. TENN. CODE ANN. § 39-14-112 (2006)
140. VT. STAT. ANN. tit. 13, § 1701 (2002)
141. WASH. REV. CODE ANN. §§ 9A.04.110(27), 9A.56.110-.130 (West 2003)
142. WIS. STAT. § 943.30-.31 (2009)
143. WYO. STAT. ANN. § 6-2-402 (2009)
144. D.C. CODE §§ 22-3201(4),-3252(a) (2001).
145. Nineteen jurisdictions have narrow ranges of prohibited demands: Alabama, Arizona, California, Delaware, Georgia, Idaho, Maine, Nebraska, Nevada, New Hampshire, Ohio, Oregon, South Carolina, South Dakota, Texas, Utah, Virginia, West Virginia, and the federal government. See ALA. CODE §§ 13A-8-1(13), 13A-8-13 to-15 (LexisNexis 2005)
146. ARIZ. REV. STAT. ANN. § 13-1804 (2009)
147. CAL. PENAL CODE §§ 518-19 (West 2008)
148. DEL. CODE ANN. tit. 11, §§ 791, 846-47 (2007)
149. GA. CODE ANN. § 16-8-16 (2007)
150. IDAHO CODE ANN. § 18-2403 (2008)
151. ME. REV. STAT. ANN. tit. 17-A, § 355 (2006)
152. NEB. REV. STAT. § 28-513 (2008)
153. NEV. REV. STAT. § 207.190 (2007)
154. N.H. REV. STAT. ANN. § 637:5 (2007)
155. OHIO REV. CODE ANN. § 2905.11-.12 (West 2006)
156. OR. REV. STAT. §§ 163.275, 164.075 (2007)
157. S.C. CODE ANN. § 16-17-640 (2005)
158. S.D. CODIFIED LAWS § 22-30A-4 (2006)
159. TEX. PENAL CODE ANN. §§ 31.01,.03 (West 2009) (note that Texas utilizes a common law duress offense to punish acts equivalent to blackmail)
160. UTAH CODE ANN. § 76-6-406 (LexisNexis 2008)
161. VA. CODE ANN. § 18.2-59 (2009)
162. W. VA. CODE ANN. § 61-2-13 (LexisNexis 2005)
163. 18 U.S.C. § 873 (2006). Note that some of these jurisdictions also have a very limited statute prohibiting the coercion of illegal action via threats.
164. See, e.g., ALA. CODE § 13A-6-25
165. NEV. REV. STAT. § 207.190 (covering mostly classic extortion, i.e., threats of unlawful behavior)
166. NEV. REV. STAT. § 207.190. § 205.320 (covering threats to obtain property). While this may technically be approaching our definition of "broad ranges, " the illegal-action limitation makes the statute so narrow as to not be comparable with the broad-range statutes.
167. Most statutes recognize threats to harm or otherwise wrong a third party as blackmail. An example would be B telling V that he will harm J (V's brother) if V does not pay. See, e.g., ALASKA STAT. § 11.41.520
168. ARIZ. REV. STAT. ANN. § 13-1804
169. CONN. GEN. STAT. ANN. § 53a-192
170. DEL. CODE ANN. tit. 11, § 846.
171. See, e.g., MODEL PENAL CODE § 212.5(1)(d) (1962)
172. cf. N.D. CENT. CODE § 12.1-17-06 (defining criminal coercion, including affirmative defenses). Twenty jurisdictions have broad exceptions to the blackmail offense: Alaska, California, Connecticut, Florida, Hawaii, Indiana, Kentucky, Maryland, Massachusetts, Michigan, Mississippi, New Jersey, New Mexico, New York, North Carolina, North Dakota, Pennsylvania, Rhode Island, Vermont, and Washington. ALASKA STAT. §§ 11.41.520, 530
173. CAL. PENAL CODE §§ 518-19
174. CONN. GEN. STAT. ANN. §§ 53a-119, 53a-192
175. HAW. REV. STAT. ANN. § 707-769
176. KY. REV. STAT. ANN. §§ 509.080, 514.080
177. N.J. STAT. ANN. §§ 2C:20-5, 2C:13-5
178. N.Y. PENAL LAW § 135.75
179. N.C. GEN. STAT. § 14-118
180. N.D. CENT. CODE §§ 12.1-17-06, 12.1-23-09
181. 18 PA. CONS. STAT. ANN. §§ 2906, 3923
182. WASH. REV. CODE ANN. §§ 9A.56.110-.130, 9A.04.110(27). This group includes jurisdictions that do not explicitly provide a good-faith defense but whose statutory language seemingly incorporates a bad-faith requirement into the offense definition itself. For example, the California extortion statute only criminalizes "the obtaining of property from another, with his consent, or the obtaining of an official act of a public officer, induced by a wrongful use of force or fear, or under color of official right. " CAL. PENAL CODE § 518 (emphasis added). This would permit the obtaining of property from another by a nonwrongful use of force or fear, as where the actor's motivation is to make another person right a previous wrong, stop creating harm, or disgorge stolen or otherwise unlawfully possessed property. Similar provisions exist in various "broad exception" statutes.
183. See FLA. STAT. ANN. § 836.05
184. IND. CODE § 35-45-2-1
185. MD. CODE ANN., CRIM. LAW §§ 3-701 to-708
186. MASS. GEN. LAWS ANN. ch. 265, § 25
187. MICH. COMP. LAWS ANN. § 750.213
188. MISS. CODE. ANN. § 97-3-82
189. N.M. STAT. ANN. § 30-16-9
190. N.C. GEN. STAT. § 14-118
191. R.I. GEN. LAWS § 11-42-2
192. VT. STAT. ANN. tit. 13, § 1701.
193. For example, the Model Penal Code requires that an actor limit her purpose to compelling the "good" action, that the action coerced be reasonably related to the circumstances involved, and that the actor believe the accusation or secret revealed to be true. MODEL PENAL CODE § 212.5(1).
194. Twenty-two jurisdictions have narrow exceptions to the blackmail offense: Alabama, Arizona, Arkansas, Colorado, Delaware, Georgia, Idaho, Illinois, Iowa, Maine, Missouri, Montana, Nebraska, New Hampshire, South Carolina, South Dakota, Tennessee, Texas, Utah, Wisconsin, Wyoming, and the District of Columbia. ALA. CODE §§ 13A-6-25, 13A-8-1(13), 13A-8-13 to-15
195. ARIZ. REV. STAT. ANN. § 13-1804
196. ARK. CODE ANN. §§ 5-13-208, 5-36-101, 5-36-103
197. COLO. REV. STAT. ANN. § 18-3-207
198. DEL. CODE ANN. tit. 11, §§ 792, 847
199. GA. CODE ANN. § 16-8-16
200. IDAHO CODE ANN. § 18-2403
201. 720 ILL. COMP. STAT. ANN. 5/12-6
202. IOWA CODE ANN. § 711.4
203. ME. REV. STAT. ANN. tit. 17-A, §§ 355, 361
204. MO. ANN. STAT. § 570.010
205. MONT. CODE ANN. §§ 45-2-101, 45-6-301, 45-5-305(1)(f)
206. NEB. REV. STAT. § 28-513
207. N.H. REV. STAT. ANN. § 637:5
208. N.M. STAT. ANN. § 30-16-9
209. S.D. CODIFIED LAWS § 22-30A-4
210. TENN. CODE ANN. § 39-14-112
211. TEX. PENAL CODE ANN. §§ 31.01, 31.03
212. UTAH CODE ANN. § 76-6-406
213. WIS. STAT. §§ 943.30-.31
214. D.C. CODE §§ 22-3201(4), 22-3252(a). This group includes jurisdictions without explicit exception clauses but with statutory language seemingly designed to provide an exception from prosecution for cases in which the actor was attempting to recover property to which he had a legal entitlement. Examples include jurisdictions such as Colorado, where the statute only criminalizes blackmail committed "without legal authority. " COLO. REV. STAT. ANN. § 18-3-207(1)(a)
215. see also 720 ILL. COMP. STAT. ANN. 5/12-6
216. MONT. CODE ANN. §§ 45-2-101, 45-6-301, 45-5-305(1)(f)
217. WIS. STAT. §§ 943.30-.31. Presumably, one would have legal authority to recover taken property or recover compensation for past harm. Another example is the District of Columbia, where the offense definition criminalizes blackmailing with intent to obtain "property of another, " defined by statute as "any property in which a government or a person other than the accused has an interest which the accused is not privileged to interfere with or infringe upon without consent.... " D.C. CODE §§ 22-3252(a), 22-3201(4). An actor may be privileged to infringe on property owed to him; in such a case it would not be "property of another, " and the actor will not be liable. Similar provisions exist in many statutes categorized as having narrow exceptions.
218. See IDAHO CODE ANN. § 18-2403
219. ME. REV. STAT. ANN. tit. 17-A, §§ 355, 361
220. N.H. REV. STAT. ANN. § 637:5
221. S.C. CODE ANN. § 16-17-640
222. S.D. CODIFIED LAWS § 22-30A-4
223. TEX. PENAL CODE ANN. §§ 31.01, 31.03
224. UTAH CODE ANN. § 76-6-406
225. WYO. STAT. ANN. § 6-2-402.
226. Ten jurisdictions have no exceptions to the blackmail offense: Kansas, Louisiana, Minnesota, Nevada, Oklahoma, Ohio, Oregon, Virginia, West Virginia, and the federal government. KAN. STAT. ANN. § 21-3428
227. LA. REV. STAT. ANN. § 14:66
228. MINN. STAT. ANN. §§ 609.27-.275
229. NEV. REV. STAT. §§ 205.320, 207.190
230. OKLA. STAT. ANN. tit. 21, § 1488
231. OHIO REV. CODE ANN. § 2905.11-.12 (West 2006)
232. OR. REV. STAT. §§ 163.275, 164.075 (2007)
233. VA. CODE ANN. § 18.2-59
234. W. VA. CODE ANN. § 61-2-13
235. 18 U.S.C. § 873.
236. The fifty-two statutes are the codes of each of the fifty states plus the federal code and the District of Columbia code.
237. Alaska, Connecticut, Florida, Hawaii, Indiana, Kentucky, Maryland, Massachusetts, Michigan, Mississippi, New Jersey, New Mexico, New York, North Carolina, North Dakota, Pennsylvania, Rhode Island, Vermont, and Washington.
238. See ALASKA STAT. §§ 11.41.520, 530 (2008)
239. MODEL PENAL CODE § 212.5(1)(d) (1962) and accompanying text. A typical broad-broad statute would be similar to Pennsylvania's: (a) Offense defined.-A person is guilty of criminal coercion, if, with intent unlawfully to restrict freedom of action of another to the detriment of the other, he threatens to: (1) commit any criminal offense; (2) accuse anyone of a criminal offense; (3) expose any secret tending to subject any person to hatred, contempt or ridicule; or (4) take or withhold action as an official, or cause an official to take or withhold action. (b) Defense.-It is a defense to prosecution based on paragraphs (a)(2), (a)(3) or (a)(4) of this section that the actor believed the accusation or secret to be true or the proposed official action justified and that his intent was limited to compelling the other to behave in a way reasonably related to the circumstances which were the subject of the accusation, exposure or proposed official action, as by desisting from further misbehavior, making good a wrong done, refraining from taking any action or responsibility for which the actor believes the other disqualified. 18 PA. CONS. STAT. ANN. § 2906.
240. WASH. REV. CODE ANN. § 9A.56.110.
241. Arkansas, Colorado, Illinois, Iowa, Missouri, Montana, Tennessee, Wisconsin, Wyoming, and the District of Columbia. See ALASKA STAT. §§ 11.41.520, 530 (2008)
242. ALA. CODE §§ 13A-6-25, 13A-8-1(13), 13A-8-13 to-15. Broad-narrow statutes can be constructed in a number of ways. One of the simplest is Tennessee's: (a) A person commits extortion who uses coercion upon another person with the intent to: (1) Obtain property, services, any advantage or immunity; or (2) Restrict unlawfully another's freedom of action. (b) It is an affirmative defense to prosecution for extortion that the person reasonably claimed: (1) Appropriate restitution or appropriate indemnification for harm done; or (2) Appropriate compensation for property or lawful services. TENN. CODE ANN. § 39-14-112
243. see also D.C. CODE §§ 22-3252(a), 22-3201(4)
244. MICH. COMP. LAWS ANN. § 750.213 (requiring the threat to be "malicious" to constitute a violation).
245. See, e.g., ARIZ. REV. STAT. ANN. § 13-1804 (MPC style)
246. MINN. STAT. ANN. §§ 609.27-609.275 (modern structure code)
247. MASS. GEN. LAWS ANN. ch. 265, § 25 (common law style).
248. See, e.g., 720 ILL. COMP. STAT. ANN. 5/12-6(a)
249. IOWA CODE ANN. § 711.4.
250. See, e.g., MICH. COMP. LAWS ANN. § 750.213
251. TENN. CODE ANN. § 39-14-112.
252. Alabama, Arizona, Delaware, Georgia, Idaho, Maine, Nebraska, New Hampshire, South Carolina, South Dakota, Texas, and Utah are "true" narrow-narrow states, while California has a narrow prohibition but seemingly broad exceptions. See ALA. CODE §§ 13A-8-1(13), 13A-8-13 to-15 (LexisNexis 2005)
253. MODEL PENAL CODE § 212.5(1)(d) (1962)
254. ALA. CODE §§ 13A-6-25, 13A-8-1(13), 13A-8-13 to-15 and accompanying text. In practice, however, the distinction between narrow-narrow and narrow-broad statutes appears to be irrelevant; if the offense only makes seeking property via blackmail a crime, an exception that goes beyond rightful property recovery (the essence of "narrow exceptions") will never have any effect. Narrow-narrow statutes, like broad-narrow statutes, do not share a general pattern as do most broad-broad statutes. However, Arizona's theft by extortion statute is typical of those jurisdictions with a narrow demand language and a narrow affirmative defense: A. A person commits theft by extortion by knowingly obtaining or seeking to obtain property or services by means of a threat to do in the future any of the following: 1. Cause physical injury to anyone by means of a deadly weapon or dangerous instrument. 2. Cause physical injury to anyone except as provided in paragraph 1 of this subsection. 3. Cause damage to property. 4. Engage in other conduct constituting an offense. 5. Accuse anyone of a crime or bring criminal charges against anyone. 6. Expose a secret or an asserted fact, whether true or false, tending to subject anyone to hatred, contempt or ridicule or to impair the person's credit or business. 7. Take or withhold action as a public servant or cause a public servant to take or withhold action. 8. Cause anyone to part with any property. B. It is an affirmative defense to a prosecution under subsection A, paragraph 5, 6 or 7 that the property obtained by threat of the accusation, exposure, lawsuit or other invocation of official action was lawfully claimed either as: 1. Restitution or indemnification for harm done under circumstances to which the accusation, exposure, lawsuit or other official action relates. 2. Compensation for property that was lawfully obtained or for lawful services. ARIZ. REV. STAT. ANN. § 13-1804. Other statutes achieve the same ends via different means.
255. See, e.g., GA. CODE ANN. § 16-8-16
256. LA. REV. STAT. ANN. § 14:66.
257. See, e.g., ALA. CODE § 13A-8-15 ("Extortion by means of a threat... constitutes extortion in the second degree. ").
258. Jurisdictions with "no exception" blackmail statutes have varied approaches. Kansas's blackmail statute is simple: "Blackmail is gaining or attempting to gain anything of value or compelling another to act against such person's will, by threatening to communicate accusations or statements about any person that would subject such person or any other person to public ridicule, contempt or degradation. " KAN. STAT. ANN. § 21-3428 (2007). Other "no exception" statutes vary.
259. See, e.g., OKLA. STAT. ANN. tit. 21, § 60-1488 (West 2003) (codifying two exclusive components to Oklahoma's blackmail law-accusing or threatening to accuse a person of a crime or exposing or threatening to expose facts that would "subject such person to the ridicule or contempt of society"-but not recognizing any exceptions to the statute)
260. 18 U.S.C. § 873 (2006) (declaring no statutory exceptions to federal blackmail law if an individual receives some value for the threat of informing or as consideration for not informing of any violation of the law of the United States).
261. KAN. STAT. ANN. § 21-3428
262. LA. REV. STAT. ANN. § 14:66
263. MINN. STAT. ANN. §§ 609.27-609.275
264. OKLA. STAT. ANN. tit. 21, § 60-1488.
265. NEV. REV. STAT. § 205.320 (2007)
266. OHIO REV. CODE ANN. § 2905.11-.12 (West 2006)
267. OR. REV. STAT. ANN. § 164.075 (2007)
268. 18 U.S.C. § 873 (2006)
269. VA. CODE ANN. § 18.2-59 (2009)
270. W. VA. CODE ANN. § 61-2-13 (LexisNexis 2005).
271. Seventy-seven women, fifty-one men, and one subject unspecified.
272. Average age was 25.0, with a standard deviation of 7.9. Ethnicity of the subjects consisted of 58 white, 41 African-American, 15 Asian, 8 Latino, 4 multi-ethnic, and 3 Native American. Educationally, the subjects consisted of 7 high school, 69 some college, 46 college degree, 5 masters degree, and 2 professional degree, and their self-reported household incomes ranged from $10,000 to $175,000 (75th percentile = $65,000; median = $20,000; 25th percentile = $10,000).
273. See supra subparts I(A)-(C). But see supra subpart I(D).
274. Interestingly, statutes also vary on the breadth of the range of prohibited threats, as opposed to the range of demands. All prohibit threats to disclose damaging secrets or expose a committed crime; many also criminalize threats to injure the victim or her property, to impugn the character of the victim or of some third party, to commit a crime, etc. However, these distinctions are irrelevant in the context of this study; it will suffice to note that all jurisdictions criminalize the threat inherent to traditional blackmail.
275. ALA. CODE §§ 13A-6-25, 13A-8-1(13), 13A-8-13 to-15 and accompanying text.
276. See supra subpart I(C).
277. As a result of this screening mechanism, thirty-five subjects were excluded from the analysis: twenty-one who varied from the predicted response to Scenario 1, twenty-nine who varied from the predicted response to Scenario 2, and fifteen who varied on both. For the fifteen who confounded both predictions, it is hard to see how their responses could indicate anything other than confusion, random answering, or malicious mischief, as any principled disagreement to the accepted result in the two cases would arise from different, and indeed opposing, views (abolitionists versus expansionists). In fact, as a group, those fifteen subjects' overall responses were "indifferent" (i.e., not statistically significant relative to a neutral answer) for seven of the remaining nine responses, suggesting randomness. (The other two scenarios were Scenario 5 (Pay or Publish Book), for which the excluded subjects favored liability but the included subjects gave an indeterminate response, and Scenario 10 (Pay or Report Crime), where the excluded subjects favored no liability and the included subjects favored liability.) Those who "erred" on Scenario 1, rejecting liability where liability was predicted, might have been demonstrating an "abolitionist" position toward blackmail, thinking it should never be punished. Yet these respondents as a group also gave indifferent responses to seven of the other ten scenarios (including scenarios where respondents as a whole consistently rejected liability) and gave pro-liability responses to another two scenarios (Scenarios 4 (Pay or Reveal Recipe) and 8 (Cut Tree or Publish Photos). In fact, the only other scenario for which this group decisively rejected liability was Scenario 10-the other "Pay or Report Crime" scenario. Again, this pattern of responses suggests arbitrariness or outright deception. Those who erred on Scenario 2 also gave indifferent responses to seven of the other ten scenarios (though not the same seven as for those who erred on Scenario 1). For the other three-Scenarios 5 (Pay or Publish Book), 6 (Pay or Expose Cheating), and 8 (Cut Tree or Publish Photos)-this group favored liability. The excluded subjects also fared very poorly on the manipulation checks, providing further reason to ignore their responses. Of the forty-four manipulation checks, those who "erred" on Scenario 1 gave indifferent responses to nineteen, and "wrong" (i.e., the opposite of predicted) answers to another six; those who erred on Scenario 2 also gave nineteen indifferent answers and six wrong ones, though they were not for the same sets of manipulation checks as the other group.
278. See supra section I(A)(1).
279. Initially, Berman's discussions of blackmail focused on the blackmailer's motivations; in more recent work, Berman has characterized blackmail in terms of the blackmailer's beliefs. See Mitchell N. Berman, The Evidentiary Theory of Blackmail: Taking Motives Seriously, 65 U. CHI. L. REV. 795, 797-98 (1998), at 839-40
280. Mitchell N. Berman, Blackmail (manuscript at 6, 7 & n.7) (manuscript at 55, 56 n.118) (dispelling Michael Gorr's blackmail approach by discussing the importance of the actor's belief and knowledge regarding what he "morally ought to do" in the blackmail puzzle). and accompanying text.
281. Mitchell N. Berman, The Evidentiary Theory of Blackmail: Taking Motives Seriously, 65 U. CHI. L. REV. 795, 797-98 (1998), at 323.
282. Mitchell N. Berman, Blackmail (manuscript at 6, 7 & n.7) (manuscript at 55, 56 n.118) (dispelling Michael Gorr's blackmail approach by discussing the importance of the actor's belief and knowledge regarding what he "morally ought to do" in the blackmail puzzle).
283. See Leo Katz, Blackmail and Other Forms of Arm-Twisting, 141 U. PA. L. REV. 1567, 1615 (1993), at 1598 (assessing a hypothetical act of blackmail as "immoral only because, if it were to be done, it would be done for purely retaliatory reasons").
284. See E-mail from Mitchell Berman, Richard Dale Endowed Chair in Law, the Univ. of Texas Sch. of Law, to Paul Robinson, Colin S. Diver Professor of Law, Univ. of Pa. Law Sch. (June 5, 2009) (on file with author) (agreeing that Berman's theory "does not have an exclusion for trivial demands").
285. See, e.g., E-mail from Leo Katz, Frank Carano Professor of Law, Univ. of Pa. Law Sch., to Paul Robinson, Colin S. Diver Professor of Law, Univ. of Pa. Law Sch. (June 8, 2009) (on file with author) (claiming that in this scenario the threat is "too insignificant to count as immoral")
286. Memorandum from Leo Katz, Frank Carano Professor of Law, Univ. of Pa. Law Sch. (Nov. 21, 2008) (on file with author) ("At some point the threatened misconduct is just too trivial. There is some line to be drawn.... Where is that line? We probably have discretion about where to draw it. The only thing we are compelled to do by logical consistency is to have such a line. ")
287. see also Leo Katz, Blackmail and Other Forms of Arm-Twisting, 141 U. PA. L. REV. 1567, 1615 (1993), at 1597. In discussing his substantiality requirement for demands, Katz states, The blackmailer puts the victim to a choice between a theft (or some other criminal encroachment) and some other, minor wrong. The execution of the theft then carries with it the level of blameworthiness of a theft. To be sure, the wrong must not be too minor. The mere threat to be nasty or unpleasant won't suffice; the immorality has to be more substantial than that. But it need not-and this is the crucial point-be an immorality that comes anywhere close to being criminal.
288. Leo Katz, Blackmail and Other Forms of Arm-Twisting, 141 U. PA. L. REV. 1567, 1615 (1993), at 1597
289. See JOEL FEINBERG, THE MORAL LIMITS OF THE CRIMINAL LAW: HARMLESS WRONGDOING 240 (1988), at 258, 275 (arguing that blackmail appropriately criminalizes "legally extortive" conduct where the threatened acts violate civil or criminal laws).
290. See JOEL FEINBERG, THE MORAL LIMITS OF THE CRIMINAL LAW: HARMLESS WRONGDOING 240 (1988) at 243 ("No citizen can be allowed to barter away his duties for personal advantage, or even offer to do so (the offer in this case being very much like an attempt at crime, itself punishable).").
291. See JOEL FEINBERG, THE MORAL LIMITS OF THE CRIMINAL LAW: HARMLESS WRONGDOING 240 (1988) at 254-56 (advocating both civil duties and criminal laws designed to protect personal reputations from such revelations when the public interest in the truth is minimal).
292. See JOEL FEINBERG, THE MORAL LIMITS OF THE CRIMINAL LAW: HARMLESS WRONGDOING 240 (1988) at 241-45 (describing threats to expose criminal wrongdoing as one form of blackmail).
293. See JOEL FEINBERG, THE MORAL LIMITS OF THE CRIMINAL LAW: HARMLESS WRONGDOING 240 (1988) at 262 (noting that a minor demand made in exchange for not revealing a crime to the authorities is blackmail not because of the excessive harm to the victim but because it "default[s] on a civic duty to the community").
294. See JOEL FEINBERG, THE MORAL LIMITS OF THE CRIMINAL LAW: HARMLESS WRONGDOING 240 (1988) at 244-45 (arguing that an offer to violate the civic duty to cooperate with law enforcement should be considered blackmail).
295. See JOEL FEINBERG, THE MORAL LIMITS OF THE CRIMINAL LAW: HARMLESS WRONGDOING 240 (1988) at 250-51 (asserting that blackmail includes a demand for payment in exchange for revealing information that would constitute a tortious invasion of privacy).
296. See JOEL FEINBERG, THE MORAL LIMITS OF THE CRIMINAL LAW: HARMLESS WRONGDOING 240 (1988) at 245-49 (arguing that threats to reveal noncriminal conduct by the victim ought not to be criminalized as blackmail).
297. Cf. JOEL FEINBERG, THE MORAL LIMITS OF THE CRIMINAL LAW: HARMLESS WRONGDOING 240 (1988) at 248-49 (noting the absence of justifiable duty for those who know about another's adultery either to reveal or to conceal it).
298. Cf. JOEL FEINBERG, THE MORAL LIMITS OF THE CRIMINAL LAW: HARMLESS WRONGDOING 240 (1988) at 245 (noting the lack of duty to disclose noncriminal "trickery" such as that of "a merchant whose underhandedness falls short of outright fraud... but misleads unwary customers into purchasing inferior products for inflated prices").
299. See JOEL FEINBERG, THE MORAL LIMITS OF THE CRIMINAL LAW: HARMLESS WRONGDOING 240 (1988) at 263-64 (claiming that a publisher who requests fair compensation for not including "damaging" elements in a forthcoming book may be justified and has not committed blackmail).
300. See JOEL FEINBERG, THE MORAL LIMITS OF THE CRIMINAL LAW: HARMLESS WRONGDOING 240 (1988) at 245-49 (arguing that threats to reveal noncriminal conduct by the victim ought not to be criminalized as blackmail).
301. See JOEL FEINBERG, THE MORAL LIMITS OF THE CRIMINAL LAW: HARMLESS WRONGDOING 240 (1988) at 264-66 (noting that demands made under a legal claim of right are justifiable and not blackmail).
302. See supra section I(A)(2).
303. See George P. Fletcher, Blackmail: The Paradigmatic Crime, 141 U. PA. L. REV. 1617, 1626 (1993), at 1626 ("Blackmail occurs when, by virtue of the demand and the action satisfying the demands, the blackmailer knows that she can repeat the demand in the future. ").
304. Cf. George P. Fletcher, Blackmail: The Paradigmatic Crime, 141 U. PA. L. REV. 1617, 1626 (1993). at 1627 (noting that the case of one who threatens to withhold a kiss in demand of dinner does not pose a threat of dominance and subordination because the "threat and the demand are minimal").
305. James Lindgren, Unraveling the Paradox of Blackmail, 84 COLUM. L. REV. 670, 671 (1984), at 672.
306. James Lindgren, Unraveling the Paradox of Blackmail, 84 COLUM. L. REV. 670, 671 (1984), at 672.
307. Lindgren discusses this precise situation. See James Lindgren, Unraveling the Paradox of Blackmail, 84 COLUM. L. REV. 670, 671 (1984). at 683 ("Consider also the biographer or memoirist who seeks money to refrain from publishing a book that will damage someone's reputation. Publishing would further the writer's lawful business, but seeking money to refrain from ruining someone's reputation or business is blackmail. ").
308. See Lindgren discusses this precise situation. See James Lindgren, Unraveling the Paradox of Blackmail, 84 COLUM. L. REV. 670, 671 (1984) at 672 ("[S]elling the right to inform others of embarrassing (but legal) behavior involves suppressing the interests of those other people. ").
309. See Lindgren discusses this precise situation. See James Lindgren, Unraveling the Paradox of Blackmail, 84 COLUM. L. REV. 670, 671 (1984) at 713-14 ("For example, assume a person believes he has been tortiously and criminally harmed by another person. All authorities agree that it is legitimate for the injured party or his lawyer to threaten to file a civil suit for damages. ").
310. See Joseph Isenbergh, Blackmail From A to C, 141 U. PA. L. REV. 1905, 1907 (1993), at 1928 (stating the "tentative first rule" in blackmail is that "B cannot legally bargain with A to suppress information about a prosecutable crime or tortious act committed by A").
311. See Joseph Isenbergh, Blackmail From A to C, 141 U. PA. L. REV. 1905, 1907 (1993) at 1908 (noting that an alternative to criminalization would be to treat threats based on information obtained outside a prior course of dealing as legally unenforceable "and to treat B's receipt of compensation for silence as a form of complicity in whatever is kept silent").
312. See Joseph Isenbergh, Blackmail From A to C, 141 U. PA. L. REV. 1905, 1907 (1993) at 1929 (recognizing that one danger of permitted bargaining is that it may "open the door to systematic information-farming by blackmailers bent only on profit from suppressing what they have uncovered").
313. See Joseph Isenbergh, Blackmail From A to C, 141 U. PA. L. REV. 1905, 1907 (1993) at 1930 (suggesting a test where contracts not to disclose private information would be valid only when the parties involved have a preexisting relationship).
314. See Joseph Isenbergh, Blackmail From A to C, 141 U. PA. L. REV. 1905, 1907 (1993) at 1925 ("The most important concern in framing a regime for bargaining over private information is to enhance the likelihood that it will be controlled by the one who values it most. ").
315. Joseph Isenbergh, Blackmail From A to C, 141 U. PA. L. REV. 1905, 1907 (1993) at 1930.
316. Joseph Isenbergh, Blackmail From A to C, 141 U. PA. L. REV. 1905, 1907 (1993) at 1931.
317. See ALASKA STAT. §§ 11.41.520, 530 (2008)
318. WASH. REV. CODE ANN. § 9A.56.110.
319. See MODEL PENAL CODE § 212.5(1)(d) (1962)
320. ALA. CODE § 13A-8-15 ("Extortion by means of a threat... constitutes extortion in the second degree. "). and accompanying text.
321. See ALA. CODE §§ 13A-6-25, 13A-8-1(13), 13A-8-13 to-15
322. MICH. COMP. LAWS ANN. § 750.213.
323. Note that in Scenario 4, Brian does not get the MPC affirmative defense because his purpose is not limited to compelling Victor to behave in a way reasonably related to the circumstances. However, North Dakota's formulation of the exception is significantly different: rather than having a limited-purpose requirement, the statute only requires that Brian believe "[t]hat a purpose of the threat was to cause the other to... refrain from taking any action or responsibility for which he was disqualified. " N.D. CENT. CODE § 12.1-17-06(2)(b) (1997). While preventing Victor from taking a job for which he was unqualified is clearly not Brian's primary purpose, it could arguably be one of his secondary motives. As such, Brian would receive an exception for Scenario 4 in North Dakota.
324. The outcome for this scenario is slightly curious, as it presents one of the few situations that might fit into the "narrow" exception but does not fit within the "broad" one. Brian's request for money to cover his work expenses has no direct connection to Victor's underlying wrongdoing, thus it is not "reasonably related to the circumstances which were the subject of the accusation, " as the MPC exception requires. MODEL PENAL CODE § 212.5(1) (1962). At the same time, Brian is at least arguably requesting "restitution" or "compensation" from Victor, as required by the narrow exception; even though Victor did not commission the biography and so does not legally owe Brian for his work, Brian would complete the work and obtain due compensation from other sources were he not forbearing from disclosing what he knows about Victor.
325. MODEL PENAL CODE § 212.5(1) (1962). § 212.5(1)(d).
326. See MODEL PENAL CODE § 212.5(1) (1962).
327. See MODEL PENAL CODE § 212.5(1) (1962).
328. See infra Table 10 (showing the correlation between the predictions and the subjects' liability responses, conditioned on the subjects' manipulation-check responses).
329. 48.8% of the subjects would impose liability and 34.9% would not, while 16.3% were undecided (the highest number of undecided responses of any scenario). More subjects (twentyone) answered "unsure" for this scenario than for any other, and the overall distribution of responses for this scenario was uniquely "flat, " with all possible responses from-3 ("definitely no liability") to +3 ("definitely liability") chosen by at least thirteen subjects but no more than twenty-five subjects.
330. Scenario 5 is excluded from the analysis. 48.8% of the subjects would impose liability and 34.9% would not, while 16.3% were undecided (the highest number of undecided responses of any scenario). More subjects (twentyone) answered "unsure" for this scenario than for any other, and the overall distribution of responses for this scenario was uniquely "flat, " with all possible responses from-3 ("definitely no liability") to +3 ("definitely liability") chosen by at least thirteen subjects but no more than twenty-five subjects.
331. As noted above, one of the manipulation checks for Fletcher (Scenario 6) gave the opposite of the predicted result. Compare supra Table 3, with supra Table 7. The subjects' proliability result for that scenario does not conflict with Fletcher's theory, however, given the subjects' perception of the scenario. See infra Table 10. Accordingly, Fletcher could as easily fit into the "7" scorecard category above.
332. Five of the nine test scenarios-3, 4, 6, 8, and 10-had a trivial amount of dissent (ranging from 3.0% to 19.2%). Two other scenarios had a larger group of dissenters: 7 and 9 (25.3% and 26.3%, respectively).
333. See infra Tables 9, 10.
334. This might suggest Lindgren's test provides a useful factor that might supplement Berman's as a "negative" predictor: where Lindgren's factor is not present, subjects might reject liability even though Berman's test is satisfied. In other words, perhaps subjects are inclined to impose liability where the person making the threat has wrongful motivations and is seeking an entitlement that is properly someone else's. This effect, however, might also be attributable to the fact that Lindgren's theory predicted no liability for only two scenarios, one of which (Scenario 2) was a screening case for the no-liability result. Further, subjects were strongly willing to impose liability in Scenario 8, for which the relevant entitlement under Lindgren's theory-the public's putative interest in seeing compromising photos of a private citizen-seems relatively weak.
335. See supra section III(B)(2).
336. See supra Table 8.
337. See supra section III(B)(2).
338. See supra section III(B)(5).
339. See supra sections III(B)(1), (3).
340. See infra Table 9 and accompanying text.
341. See supra section III(B)(3).
342. See supra Table 7.
343. As noted earlier, because this subject did not give the predicted response to Scenario 1, his or her survey was not used in calculating the results of the study. As a result of this screening mechanism, thirty-five subjects were excluded from the analysis: twenty-one who varied from the predicted response to Scenario 1, twenty-nine who varied from the predicted response to Scenario 2, and fifteen who varied on both. For the fifteen who confounded both predictions, it is hard to see how their responses could indicate anything other than confusion, random answering, or malicious mischief, as any principled disagreement to the accepted result in the two cases would arise from different, and indeed opposing, views (abolitionists versus expansionists). In fact, as a group, those fifteen subjects' overall responses were "indifferent" (i.e., not statistically significant relative to a neutral answer) for seven of the remaining nine responses, suggesting randomness. (The other two scenarios were Scenario 5 (Pay or Publish Book), for which the excluded subjects favored liability but the included subjects gave an indeterminate response, and Scenario 10 (Pay or Report Crime), where the excluded subjects favored no liability and the included subjects favored liability.) Those who "erred" on Scenario 1, rejecting liability where liability was predicted, might have been demonstrating an "abolitionist" position toward blackmail, thinking it should never be punished. Yet these respondents as a group also gave indifferent responses to seven of the other ten scenarios (including scenarios where respondents as a whole consistently rejected liability) and gave pro-liability responses to another two scenarios (Scenarios 4 (Pay or Reveal Recipe) and 8 (Cut Tree or Publish Photos). In fact, the only other scenario for which this group decisively rejected liability was Scenario 10-the other "Pay or Report Crime" scenario. Again, this pattern of responses suggests arbitrariness or outright deception. Those who erred on Scenario 2 also gave indifferent responses to seven of the other ten scenarios (though not the same seven as for those who erred on Scenario 1). For the other three-Scenarios 5 (Pay or Publish Book), 6 (Pay or Expose Cheating), and 8 (Cut Tree or Publish Photos)-this group favored liability. The excluded subjects also fared very poorly on the manipulation checks, providing further reason to ignore their responses. Of the forty-four manipulation checks, those who "erred" on Scenario 1 gave indifferent responses to nineteen, and "wrong" (i.e., the opposite of predicted) answers to another six; those who erred on Scenario 2 also gave nineteen indifferent answers and six wrong ones, though they were not for the same sets of manipulation checks as the other group.
344. See, e.g., Paul H. Robinson, Why Does the Criminal Law Care What the Layperson Thinks Is Just? Coercive Versus Normative Crime Control, 86 VA. L. REV. 1839, 1839 (2000) (asserting that the Model Penal Code "defers to laypersons' shared intuitions of justice on issues touching essentially all criminal cases").
345. For a similar example of the Model Code drafters taking account of community intuitions without admitting it, see their treatment of resulting harm, discussed in Paul H. Robinson, The Role of Harm and Evil in Criminal Law: A Study in Legislative Deception?, 5 J. CONTEMP. LEGAL ISSUES 299, 317 (1994).
346. Logically, the t-tests intend to contrast the descriptive adequacy of the various positions, and thus it makes sense to include only the scenarios that were intended to distinguish the positions. Statistically, for Scenarios 1 and 2 we cut the distributions of liability judgments before zero, making the mean liability judgments quite extreme. Because some of the theories make relatively few predictions of one kind (e.g., Fletcher makes only three "yes" predictions for our eleven; Katz makes six), the effects of mixing in these extreme responses will be more pronounced for some of the theories than others. That is, the inclusion of responses to Scenario 1 will bias the "yes" bin for Fletcher upwards more than it will for Lindgren, who makes nine "yes" predictions. Katz, Feinberg, MPC, and narrow-narrow will be less biased, as their predictions are closer to fifty-fifty (six of one type, five of the other).
347. See JAMES P. STEVENS, APPLIED MULTIVARIATE STATISTICS FOR THE SOCIAL SCIENCES 197 (4th ed. 2002) (citing reference using.01 as a small effect size,.06 as a medium effect size, and.13 as a large effect size using eta squared or partial eta squared)
348. see also SCHUYLER W. HUCK, STATISTICAL MISCONCEPTIONS 238 (2009).
349. E-mail from Leo Katz, Frank Carano Professor of Law, Univ. of Pa. Law Sch., to Paul Robinson, Colin S. Diver Professor of Law, Univ. of Pa. Law Sch. (June 8, 2009) (on file with author) (claiming that in this scenario the threat is "too insignificant to count as immoral"); Memorandum from Leo Katz, Frank Carano Professor of Law, Univ. of Pa. Law Sch. (Nov. 21, 2008) (on file with author) ("At some point the threatened misconduct is just too trivial. There is some line to be drawn.... Where is that line? We probably have discretion about where to draw it. The only thing we are compelled to do by logical consistency is to have such a line. ")
350. George P. Fletcher, Blackmail: The Paradigmatic Crime, 141 U. PA. L. REV. 1617, 1626 (1993) at 1627.
351. Mitchell N. Berman, The Evidentiary Theory of Blackmail: Taking Motives Seriously, 65 U. CHI. L. REV. 795, 797-98 (1998), at 323.
352. Leo Katz, Blackmail and Other Forms of Arm-Twisting, 141 U. PA. L. REV. 1567, 1615 (1993) at 1598.
353. George P. Fletcher, Blackmail: The Paradigmatic Crime, 141 U. PA. L. REV. 1617, 1626 (1993), at 1626-29 (proposing a dominance-and-subordination test and applying it to a set of paradigmatic situations).
354. MODEL PENAL CODE § 212.5(1) (1962). Section (1)(a) is traditional extortion; sections (1)(b) and (1)(c) are common situations of blackmail.
355. Mitchell N. Berman, The Evidentiary Theory of Blackmail: Taking Motives Seriously, 65 U. CHI. L. REV. 795, 797-98 (1998), at 323.
356. See Mitchell N. Berman, Blackmail (manuscript at 6, 7 & n.7) (manuscript at 6-7) (discussing individual intuitions in terms of blackmail).
357. See, e.g., Mitchell N. Berman, The Evidentiary Theory of Blackmail: Taking Motives Seriously, 65 U. CHI. L. REV. 795, 797-98 (1998), at 848 (describing how even threats of legitimate action constitute appropriately criminal blackmail if made with bad motives).
358. MODEL PENAL CODE § 212.5(1).
359. The exact text of the statutory provision, we would suggest, depends in part on the features of other provisions in the code of which the provision would be part, especially its General Part and Special Part provisions, such as the extent to which the code prefers objective example lists over general criterion definitions. For an example of specific prohibited threat descriptions, see MODEL PENAL CODE § 212.5(1)(a)-(d).
360. Note that while these analyses cite specific MPC provisions, all broad-broad statutes will have the same outcomes. Statute numbering and structure will vary by jurisdiction.
361. MODEL PENAL CODE § 212.5(1).
362. MODEL PENAL CODE § 212.5(1). (emphasis added).