Unraveling the Paradox of Blackmail
48 Pages Posted: 3 Apr 2021
Date Written: January 1, 1984
Blackmail is considered paradoxical because you can commit a crime while both your ends and means in isolation are legal. For example, if I threaten to expose a prospective employer’s extramarital affair unless the employer hires me, I have committed blackmail. Yet I have a legal right to expose the affair and a legal right to seek a job that I intend to perform.
After reviewing problems with eight prior theories of blackmail, I offer a new theory. In my view, to get what he wants, the blackmailer uses leverage that is less his than someone else's. Blackmail is thus a way that one person requests something in return for suppressing or settling the actual or potential claims of others. Selling the right to go to the police involves suppressing the state's claim, bargaining with the state's chip. Selling the right to inform the victim of a tort who committed the tort involves suppressing the tort victim's claim. And selling the right to inform others of embarrassing but legal behavior involves suppressing claims belonging to other people, even though those claims may be unredressable in court.
Similarly, noninformational blackmail involves the same misuse of another's power for the blackmailer's own benefit. For example, when a labor leader threatens to cause a strike unless he personally is paid off, he is suppressing the actual or potential claims of others for his own benefit. And when a public official threatens to deny someone a public contract unless he is paid off, once again he is turning group or representative power to his own benefit. Blackmail differs from ordinary bargaining and threats because the leverage used belongs less to the threatener than to a third party.
Yet where the leverage used is largely congruent with the threat, blackmail has not occurred. Thus, a tort victim may threaten to expose the circumstances of the tort unless restitution is made. Or a labor leader may threaten to call a strike unless the workers receive higher wages.
Keywords: blackmail; extortion; bribery; coercion; criminal law
JEL Classification: K14
Suggested Citation: Suggested Citation