Theory, History, and Practice of the Bribery-Extortion Distinction
![handle is hein.journals/pnlr141 and id is 1715 raw text is: THE THEORY, HISTORY, AND PRACTICE OF THE
BRIBERY-EXTORTION DISTINCTION
JAMES LINDGRENt
In the law of blackmail and extortion, two topics have generated
great debates: the paradox of blackmail and the bribery-extortion
distinction. The paradox debate has so far been more theoretical
than practical or historical, while the bribery-extortion debate has
been more practical and historical than theoretical. In this Article,
I will first examine the theoretical overlap of bribery and extortion.
Next, I will try to tie together the paradox debate and the bribery-
extortion debate. As I see it, the same principle that underlies
bribery underlies public official extortion and blackmail. That is
part of what has made extortion and bribery so difficult to distin-
guish. Then I will analyze the recent Supreme Court jurisprudence
of extortion and answer some of the historical questions raised by
the sharp exchange between Justices Stevens and Thomas over my
work.
I. THE THEORY OF THE BRIBERY-EXTORTION DISTINCTION
A. The Definitions of Bribeiy and Extortion
Extortion is of two types: extortion by threats or fear and
extortion under color of office. Extortion by threats or fear
(coercive extortion) can refer to any illegal use of a threat or fear to
obtain property or advantages from another, short of violence that
would be robbery.1 Statutes usually set out the kinds of threats or
t Norman & Edna Freehling Scholar, Associate Dean for Faculty Development,
and Professor of Law, Chicago-Kent College of Law. B.A., 1974, Yale University;J.D.,
1977, University of Chicago. I must thank many people for stimulating my thinking
on this issue over the years, including Philip Hamburger, Franklin Zimring, Ronald
Coase, Randy Block, Leo Katz, Ronald Allen, Bill Marshall, Peter Low, Wendy
Gordon, Lori Andrews, Daniel Lowenstein, and David Burgess. I would particularly
like to thank Colin Diver, Leo Katz, and the editors of the University of Pennsylvania
Law Review for providing a warm home for this Symposium. Much of this paper was
written during the winter and spring of 1992, while I was a Visiting Scholar at the
Northwestern University and University of Chicago Law Schools. I would like to
thank both schools and their deans for their generous support of this project, as well
as the Marshall D. Ewell Fund of Chicago-Kent College of Law. A portion of part I
appeared previously in the UCLA Law Review.
1 See, e.g., PROPOSED PENAL CODE OF THE STATE OF NEW YORK § 614 (1865)
[hereinafter FIELD CODE] (What threats may constitute extortion); MODEL PENAL
(1695)](ViewImageLocal?handle=hein.journals/pnlr141&div=39&collection=&method=preview&ext=.png&size=3)
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Theory, History, and Practice of the Bribery-Extortion Distinction
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