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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