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89 Tex. L. Rev. 291 (2010-2011)
Competing Theories of Blackmail: An Empirical Research Critique of Criminal Law Theory

handle is hein.journals/tlr89 and id is 297 raw text is: Competing Theories of Blackmail: An Empirical Research Critique of Criminal Law Theory Paul H. Robinson,* Michael T. Cahill & Daniel M. Bartels The crime of blackmail has risen to national media attention because of the David Letterman case, but this wonderfully curious offense has long been 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 liter- ature 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 pre- vailing 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 * Colin S. Diver Professor of Law, University of Pennsylvania Law School. We thank Mitch Berman, Leo Katz, George Fletcher, and Jim Lindgren for helping us better understand their theories for this study. We also thank Adam Kolber for his useful contributions and Matthew Majarian, University of Pennsylvania Law School Class of 2011, for exceptional research assistance. ** Associate Dean for Academic Affairs and Professor of Law, Brooklyn Law School. Work on this Article was supported by a summer research stipend from Brooklyn Law School, for which Professor Cahill thanks the School and Dean (now President) Joan G. Wexler. Professor Cahill also thanks Paul Means, Rosalyn Scaff, Christopher Serkin, Nelson Tebbe, Ben Trachtenberg, Mary Willis White, and Saul Zipkin for field testing our survey instrument and its manipulation checks to help ensure the scenarios were presented in a way that captured the relevant distinctions. ***Assistant Professor of Marketing, Columbia University Graduate School of Business.

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