University of Tulsa College of Law
Georgetown Law Journal, Vol. 94, p. 739, 2006
University of Tulsa Legal Studies Research Paper No. 2008-08
Blackmail remains one of the most difficult, and unsolved, puzzles in all of law. While nearly all endorse blackmail's criminalization, no one can explain why it should even be a crime. By introducing the novel concept of meta-blackmail, this Article explains why the puzzle of blackmail - it can be a crime to conditionally threaten to do what one has a right to do - cannot be resolved. While a conventional blackmail proposal backs a demand for money with the threat to disclose the recipient's embarrassing secret, a meta-blackmail proposal backs a demand for money with the threat to blackmail the recipient. Thus, conventional blackmail threatens a lawful act (e.g., disclosure of an embarrassing secret), but meta-blackmail threatens an unlawful act - blackmail itself. The comparative assessment of meta-blackmail and conventional blackmail reveals a trilemma: (i) since meta-blackmail threatens an unlawful act, meta-blackmail is a more serious level of criminality; (ii) since both meta-blackmail and conventional blackmail, in effect and function, demand money for nondisclosure of an embarrassing secret, they are equivalent; and (iii) since threatening blackmail should be less serious than actually committing blackmail, meta-blackmail is less serious. The trilemma, which is best resolved by decriminalizing blackmail, demonstrates that criminalizing blackmail violates a number of intuitions that are more compelling than the intuition that blackmail is properly criminalized. To preserve the more valued intuitions, blackmail should be decriminalized.
Number of Pages in PDF File: 48
Keywords: blackmail, paradox, extortion, robbery, coercion, form, function, substance
JEL Classification: K14
Date posted: June 6, 2006 ; Last revised: March 31, 2008