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141 U. Pa. L. Rev. 1849 (1992-1993)
Blackmail: An Economic Analysis of the Law

handle is hein.journals/pnlr141 and id is 1869 raw text is: BLACKMAIL: AN ECONOMIC ANALYSIS OF THE LAWt DOUGLAS H. GINSBURGtt PAUL SHECHTMANttt In fiction and in real life, blackmail is a particularly odious crime. Despite the fear and loathing with which its practitioners are regarded, however, blackmail remains an ill-defined and enigmatic concept. The legal literature especially suffers from an inability to define blackmail in a way that meaningfully distinguishes it from threats of unquestioned legality made in the course of economic bargaining. All agree that a key employee may lawfully threaten to quit unless his wages are raised, and that if his threat comes at a time when his employer is particularly vulnerable, he may have engaged in sharp practices but not criminal conduct. Many threats, such as those of a customer to take his custom elsewhere if a price is not lowered, or to enter production for his own use if suppliers are not more obliging, are actually relied upon in a competitive exchange economy to discipline the market. But despite our general ability to agree on the lawfulness of particular threats, drafting a general law that separates blackmail from bargaining has proved an elusive task. Related to this problem of definition is an apparent paradox embedded in the law of blackmail. Consider this paradigmatic blackmail transaction: B has taken a photograph of A, a temperance advocate, drinking whiskey; he approaches A with an offer to sell him the photographic negative, threatening disclosure to the newspapers if A fails to pay. Again, all would agree: B is guilty of blackmail. The point to notice, however, is that B has threatened to do only what he had an undoubted right to do, namely to facilitate t This paper was written in 1979 when the authors were respectively professor and student at the Harvard Law School. We did not publish the paper at that time but presented it at a University of Chicago Law School workshop on law and economics (which yielded many helpful comments, for which we are grateful) and circulated it among interested scholars. Professor James Lindgren discussed the paper at some length in his own publications. Accordingly, when Professor Lindgren asked us to participate in this Symposium, we decided that rather than revise the original paper we would publish it for the first time and add a postscript in order to respond to his comments on the analysis. tt Circuit Judge, United States Court of Appeals for the District of Columbia Circuit; Distinguished Professor of Law, George Mason University. ttt Counsel to the District Attorney, New York County; Adjunct Professor of Law, Columbia University Law School. (1849)

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