Monday, June 12, 2006
University of Tulsa College of Law Crim Prof Russel Christopher has posted the above-titled article on SSRN. Here is the abstract:
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.
To obtain paper, click here