Truth and Consequences: The Force of Blackmail's Central Case

48 Pages Posted: 25 Apr 2020

Date Written: 1993

Abstract

Blackmail commentary continues to proliferate. One purpose of this paper is to show what we agree on. Its primary tool will be to define what I call the "central case" of blackmail literature, and to supply the connecting links that will allow us to see how various normative theories converge in condemning central case blackmail. Admittedly, the law criminalizes more than my central case. But once we recognize that the central case is neither puzzling nor paradoxical, it may be easier to handle the border cases that arise.

The Article first demonstrates why criminalizing blackmail involves neither a paradox nor a contradiction, notwithstanding the fact that blackmail law prohibits offers to sell discreditable information that the law would permit the seller to disclose without penalty. The Article then sets out the central case of blackmail, the standard economic argument for its criminalization, and the nonstandard uncertainties that wealth effects produce in this area.

The Article then turns to its primary topic: presenting a deontologic moral justification for criminalizing blackmail. The nonconsequentialist moral view best captures, I believe, the primary reasons why courts and legislatures have in fact made blackmail unlawful. I argue that most of the supposed ambiguities surrounding the deontologic case are red herrings obscuring the simple nature of the wrong committed by the blackmailer. I also defend this argument against challenges such as the libertarian view that blackmail is indistinguishable from an ordinary commercial transaction.

The final sections of the Article return to discussing blackmail law from a consequentialist perspective, but with a twist: I present consequentialist arguments for criminalizing blackmail based upon the impact that noneconomic motives can have on the outcomes of blackmail attempts, and the impact that law can have upon these noneconomic motives. I suggest in conclusion that truth cannot be found in either the economic (consequentialist) or deontologic (nonconsequentialist) approaches standing alone, but that some union of the two is necessary for satisfactory resolutions of complex cases.

Suggested Citation

Gordon, Wendy J., Truth and Consequences: The Force of Blackmail's Central Case (1993). University of Pennsylvania Law Review, Vol. 141, No. 5, 1993, Available at SSRN: https://ssrn.com/abstract=3583548

Wendy J. Gordon (Contact Author)

Boston University School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States
617-353-4420 (Phone)
617-353-3077 (Fax)

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