Friday, October 2, 2009
I no longer can read an article about blackmail without recalling the observation of my colleague, Don Dripps, in his piece entitled The Priority of Politics and Procedure over Perfectionism in Penal Law, or, Blackmail in Perspective: "In the last twenty years, there may very well be fewer reported blackmail prosecutions than articles on the subject." The latest contribution: Paul H. Robinson (University of Pennsylvania Law School) (pictured), Michael T. Cahill (Brooklyn Law School), and Daniel M. Bartels (University of Chicago) have posted Competing Theories of Blackmail: An Empirical Research Critique of Criminal Law Theory on SSRN. The piece canvasses the various theories offered to justify the offense of blackmail and seeks, through survey techniques, to test their resonance with common intuitions, finding that many of the approaches are "over-theorized," a position with which Don would agree, but for different reasons.
Here is the abstract:
Blackmail, a wonderfully curious offense, is the favorite of clever criminal law theorists. It criminalizes the threat to do something that would not be criminal if one did it. There exists a rich literature on the issue, with many prominent legal scholars offering their accounts. Each theorist has his own explanation as to why the blackmail offense exists. Most theories seek to justify the position that blackmail is a moral wrong and claim to offer an account that reflects widely shared moral intuitions. But the theories make widely varying assertions about what those shared intuitions are, while also lacking any evidence to support the assertions.
This Article summarizes the results of an empirical study designed to test the competing theories of blackmail to see which best accords with prevailing sentiment. Using a variety of scenarios designed to isolate and test the various criteria different theorists have put forth as “the” key to blackmail, this study reveals which (if any) of the various theories of blackmail proposed to date truly reflects laypeople’s moral judgment.
Blackmail is not only a common subject of scholarly theorizing, but also a common object of criminal prohibition. Every American jurisdiction criminalizes blackmail, although there is considerable variation in its formulation. The Article reviews the American statutes and describes the three general approaches these provisions reflect. The empirical study of lay intuitions also allows an assessment of which of these statutory approaches (if any) captures the community’s views, thereby illuminating the extent to which existing law generates results that resonate with, or deviate from, popular moral sentiment.
The analyses provide an opportunity to critique the existing theories of blackmail and to suggest a refined theory that best expresses lay intuitions. The present project also reveals the substantial conflict between community views and much existing legislation, indicating recommendations for legislative reform. Finally, the Article suggests lessons that such studies and their analyses offer for criminal law and theory.