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16 Conn. L. Rev. 909 (1983-1984)
More Blackmail Ink: A Critique of Blacmail, Inc., Epstein's Theory of Blackmail

handle is hein.journals/conlr16 and id is 923 raw text is: MORE BLACKMAIL INK: A CRITIQUE OF BLACKMAIL, INC., EPSTEIN'S THEORY OF BLACKMAIL by James Lindgren* For the past fifty years law professors and philosophers have been trying to explain why blackmail is a crime.1 The problem with black- mail is this: Why can't you threaten to do what you have a legal right to do? For example, it is blackmail if you seek a job from a prospective employer by threatening to expose his extramarital affair or criminal fraud. Yet you have a legal right to seek a job and a legal right to threaten to expose a prospective employer's affair or fraud. Why then is it blackmail to combine these otherwise legal ends and means? This puzzle-perhaps the most difficult in all of the substantive criminal law-has been termed the paradox of blackmail.3 I. THEORIES OF BLACKMAIL The English were the first to try to resolve the paradox. In a col- lection of essays published in 1937, Professor Arthur Goodhart suggests that the distinction between conduct that is blackmail and conduct that is not blackmail lies in what the threatener is offering to refrain from doing.4 According to Goodhart, it is blackmail to seek money to refrain * Associate Professor of Law, University of Connecticut School of Law. B.A., Yale Univer- sity, J.D., University of Chicago. Professor Lindgren teaches Trusts and Estates, Criminal Law, and Legal Profession. I would like to thank Robert Birmingham, Roy Soloman, Lori Andrews, Franklin Zimring. Janet Spegele, and Ellen Bowman. This article is dedicated to Randy Block and Phillip Blumberg. 1. See Lindgren, Unraveling the Paradox of Blackmail. 84 CoLum. L REv. 670, 680-701 (1984) (reviewing other theories). 2. See N.Y. Times, Jan. 25, 1941, at 29, col. 4 (blackmailer sought a job as a secretary and companion by threatening to expose an indiscretion); Salley v. United States, 306 F.2d 814 (D.C. Cir. 1962) (blackmailer threatened to tell the victim's wife that the victim had caused the preg- nancy of another woman); United States v. Smith, 228 F. Supp. 345 (E.D. La. 1964) (threat to expose a company's fraud unless the company rehired specific persons). 3. See Murphy, Blackmail: A Preliminary Inquiry, 63 MoNIsr 156. 156-57 (1980); Williams, Blackmail, 1954 CRIM. L. REv. 79, 163. 4. A. GOODHART, ESSAYS IN JURISPRUDENCE AND THE COMMON LAw 175-89 (1937).

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