The Evidentiary Theory of Blackmail: Taking Motives Seriously

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1998

The Evidentiary Theory of Blackmail: Taking Motives Seriously

Mitchell N. Berman University of Pennsylvania Carey Law School

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Repository Citation Berman, Mitchell N., "The Evidentiary Theory of Blackmail: Taking Motives Seriously" (1998). Faculty Scholarship at Penn Law. 1486. https://scholarship.law.upenn.edu/faculty_scholarship/1486

This Article is brought to you for free and open access by Penn Law: Legal Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship at Penn Law by an authorized administrator of Penn Law: Legal Scholarship Repository. For more information, please contact [email protected]. The EvidentiaryTheory of Blackmail: Taking Motives Seriously

MitchellN. Bermant

TABLEOF CONTENTS

Introduction...... 796 I. ExistingTheories: A Surveyand Critique . .799 A. The Social Consequencesof Blackmail .800 1. Law and Economics:criminalizing inefficient conduct . .800 a) The argument:blackmail produces deadweightloss .801 b) Adventitiousblackmail: underinclusiveness.802 c) Nonadventitiousblackmail: the indeterminacyof externalties .808 d) The unbridgedgap: whycriminalize? . 810 2. RichardEpstein: blackmail as the "handmaidento corruptionand deceit.". . 814 3. JeffrieMurphy: blackmail encourages invasions ofprivacy . .817 B. Blackmailas an InherentWrong: Of Unconditional Acts and ConditionalThreats . . .820 1. Feinbergand Gorr:the wrongfulact .. 820 2. Lindgrenand Fletcher:the wrongful threat ..823 3. Katz: the punishmentpuzzle . .826 4. Nozick:blackmail as coercion . .828 C. Summary.. 832 II. A ProposedSolution ...... 833 A. Criteriaof Criminalization ...... 834 1. Generaljustifying aims...... 834

t AssistantProfessor, The Universityof Texas Schoolof Law. C 1998 MichellN. Ber- man. I wouldlike to thankSherman Clark, John Cobau, Richard Friedman, Sam Gross, Don Herzog,Yale Kamisar,Ronald Mann, John Parry, Peter Westen,and James Boyd Whitefor extremely helpful comments on earlierdrafts. I am also gratefulto the law firm ofJenner & Blockfor supporting this project when I was an associatein its Washington, D.C. office.My greatestdebt is due mywife, Ingrid Johansen, for her unfailingencour- agement,good humor, and soundadvice. 795

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2. Threecriteria of criminalization ...... 835 3. The thirdcriterion: defining terms ...... 837 B. CriminalizingBlackmail: Of Harm and Bad Motive.. 840 1. A directapproach ...... 840 2. Detour:criminalizing the unconditional disclosure...... 842 3. Bad motiveand theconditional threat ...... 844 C. Summary:Resolving the Puzzles ...... 848 1. The principalpuzzle: why the act is legal and thethreat illegal...... 848 2. The secondarypuzzle: distinguishing other voluntarytransactions ...... 851 III. Testingthe Evidentiary Theory: The CentralCase and Beyond ...... 852 A. A BlackmailTest ...... 853 B. Applications ...... 855 1. "Hard"bargains...... 855 2. Marketprice blackmail ...... 857 3. Crimeexposure blackmail ...... 860 4. Victimblackmail ...... 862 5. Publicinterest blackmail ...... 864 6. Noninformationalblackmail ...... 866 7. Bribery...... 867 IV. Implications ...... 870 A. Motiveand Mens Rea in the CriminalLaw ...... 870 B. GovernmentalMotives: Understanding UnconstitutionalConditions ...... 873 Conclusion .... 876

INTRODUCTION I am legallyfree to reveal embarrassinginformation about you. Generallyspeaking, I am also freeto negotiatepayment to refrainfrom exercising a legal right.But ifI combinethe two-offeringto remainsilent for a fee I am guiltyof a felony:blackmail.Why? The so-calledparadox of blackmail1 has garneredan extraor- dinarydegree of interdisciplinaryscholarly attention. Contribu-

' Althoughthe reasonwhy the additionof a conditionalthreat should make a legal differenceis obscure, this puzzle is not,as a matterof strict logic, a paradox.See WendyJ. Gordon,Truth and Consequences:The Force of Blackmail's Central Case, 141 U Pa L Rev 1741, 1742-43(1993). Nonetheless,following convention, we need not insistupon the point.

This content downloaded from 130.91.146.35 on Wed, 8 Oct 2014 19:25:29 PM All use subject to JSTOR Terms and Conditions 1998] TakingMotives Seriously 797 torsto the debatehave includedlaw professorsand judges, moral philosophersand economists.Despite manyefforts, however, it is an understatementto observethat no consensushas emergedin supportof any one or combinationof the profferedtheories.2 In- deed, in his afterwordto a symposiumdevoted to the subject a few years ago, ProfessorJames Lindgren,the most intensely committedcontributor to the debate,ventured that the blackmail paradoxremains "one of the most elusive intellectualpuzzles in all oflaw."3 This Articleproposes a new solutionto the puzzle. Specifi- cally,it endeavorsboth to justifyblackmail's criminalization as fullyconsistent with the centraltenets of the criminallaw and to explain why,and under what circumstances,blackmail is properlycriminalized. The Articlebegins, in SectionI, by arguingthat no current theoryadequately unravels the paradox.Each failsto accountfor significantand substantialaspects of prevailing blackmail law as well as widespreadintuitions about what the law shouldbe. Fur- thermore,Section I seeks to demonstratethat the two predominant approachesto resolvingthe paradox(in additionto the spe- cificanswers thus far proposed)are doomed to failure.Conse- quentialisttheories, which turn upon the particularsocial consequences of blackmail,and deontologicaltheories, which seek to identifythe objectivemoral differencebetween the conditional threatto performan act and the unconditionalperformance of that same act, will both always prove unable to distinguish blackmailfrom much behaviorthat is, and should remain,free fromcriminal sanction. Section II developsand defendswhat I call the evidentiary theoryof blackmail.It begins with the propositionthat, consistent withconsequentialist as well as retributivistconceptions of the justifyingaim of the criminallaw, societymay criminalize conductthat tends both to cause harmand to be undertakenwith wrongfulmotives. On this animatingsupposition, and because societycould (and oftendoes) recognizeinjury to reputationas le-

2 The fullestelaboration of the puzzle,including critiques of initial efforts to solveit, appears in JamesLindgren, Unraveling the Paradox of Blackmail,84 ColumL Rev 670 (1984). Otherespecially noteworthy contributions to the literatureinclude Douglas H. Ginsburgand Paul Shechtman,Blackmail: An EconomicAnalysis of the Law, 141 U Pa L Rev 1849 (1993); RichardA. Posner,Blackmail, Privacy, and Freedomof Contract,141 U Pa L Rev 1817 (1993);Joel Feinberg, Harmless Wrongdoing 240-58 (Oxford 1988); Richard A. Epstein,Blackmail, Inc., 50 U Chi L Rev 553 (1983); JeffrieG. Murphy,Blackmail: A PreliminaryInquiry, 63 Monist156 (1980); and RobertNozick, Anarchy, State, and Utopia 84-87(Basic Books1974). 3 JamesLindgren, Blackmail: An Afterword,141 U Pa L Rev 1975,1975 (1993).

This content downloaded from 130.91.146.35 on Wed, 8 Oct 2014 19:25:29 PM All use subject to JSTOR Terms and Conditions 798 The Universityof Chicago Law Review [65:795 gally cognizableharm, a legislaturecould unproblematically4 criminalizeall disclosuresof embarrassing information so longas we could reasonablybelieve that most personswho make such disclosuresdo so withmorally unacceptable motives. But the op- positeis true:we knowthat people reveal embarrassing informationabout others for all typesof reasons and, consequently,out of varyingmoral postures-good, bad, and (arguably)neutral. The diversityof motives for revealing hurtful information about others thus providesa sufficient(if not necessary)explanation for society'srefusal to proscribeand punishall such revelations.To be sure, the legislaturecould tryto tailor the offenseso as to punishonly those persons who disclose embarrassing information with,in Blackstone'sterm, "vitious will."5 But in that eventthe factfinderwould confronta heftychallenge: how to determine whetherany given defendant acted with the requisitebad motive. If the defendantwere a blackmailer,the task wouldbe much easier. For reasonsto be explained,we can usuallyinfer that an individualwho disclosesembarrassing information only after the personembarrassed by the disclosurefails to pay a requested sum is drivenby morally bad motivationto make thatdisclosure. The act ofblackmail thus has evidentiarysignificance only: it reveals somethingabout the moralcharacter of the actor'smotiva- tionthat we wouldbe less likelyto suspecthad he disclosedwith- out firsthaving made the conditionalthreat. Armed with that (supposed)knowledge, society can punishthe blackmailerfor the same reasonthat is sufficientto punishthose who engagein un- paradoxical,garden variety crimes: because the actorcauses (or threatens)harm while acting with morally culpable motives. SectionIII simultaneouslytests and elaboratesthe evidentiarytheory by analyzing a rangeof variations within and beyond blackmail'sparadigmatic case. This Sectionjustifies criminalizing severaltypes of blackmail that intuition (and, often,existing law) suggestsshould be criminal,but thatone or moreprominent theorieshave been unable to accountfor. It also explainswhy severalother classes ofconduct that share the formalstructure of core cases of blackmailshould not be criminal.In so doing,this Sectioninvites lawmakers to considerwhether it wouldbe feasi- ble to excludesuch conduct from the blackmail ban.6

4 Unproblematically,that is, as faras criminaltheory is concerned.I hereput aside considerationsstrictly exogenous to thecriminal law. ' William Blackstone,4 Commentaries *21. 6 This is notto demanda perfectidentity between the positivelaw and themoral im- portof the evidentiarytheory. Law is alwayssomewhat over- and/or underinclusive rela- tiveto thedictates of its theoreticaljustifications. See generallyJoseph Story, 1 Commen-

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SectionIV suggestssome broaderlessons of the evidentiary theory.After all, the blackmailparadox is not merelya tantaliz- ing intellectualpuzzle. The numberand statureof minds it has attractedbespeak a widelyheld beliefthat a solutionto this single conundrumwill bear broad and deep implications.As Lind- gren has put it, simplyif dramatically:"The struggleto under- stand blackmailis a strugglefor the soul of the criminallaw."7 This Sectionoffers some thoughts regarding what significance the evidentiarysolution to the blackmailpuzzle mighthave forthe fundamentalquestions of criminal theory. Also, in an effortboth to buttressthe validityof the evidentiarytheory in its core appli- cationand to demonstrateits utilityoutside the contextof blackmail, I indicatehow the analysis developedin SectionsII and III mighthelp to resolve yet anotherof the great mysteriesof the law-the doctrineof unconstitutional conditions.

I. EXISTING THEORIES: A SURVEY AND CRITIQUE The blackmailparadox has attractedan impressivearray of thinkersfrom a wide range ofdisciplines. For purposesof exposi- tion and analysis (and followingLindgren), this Section divides theirtheories into two broad groups.8Section I.A examinessev- eral theoriesthat justify criminalization of blackmail by reference to the supposedlyadverse social consequencesthat could be ex- pectedin a regimethat toleratedblackmail. Section I.B investi- gates theoriesthat advocatecriminalization on the groundsthat blackmailis wrongin and ofitself. Any satisfactorytheory must accountfor both parts of the blackmailpuzzle. First,it must explainwhether and whyblackmail shouldbe made criminal.Second, if it supportscriminaliza- tionof blackmail, it mustexplain whether and whyunconditional performanceof the acts a blackmailermight threaten should remain lawful.Put otherwise,the theoryshould provide an account ofthe blackmailthreat that both justifies its criminalization9and tarieson EquityJurisprudence ? 7 (Little,Brown 12th ed 1877);Frederick Schauer, Play- ingBy theRules 31-34(Oxford 1991). Lindgren,141 U Pa L Rev at 1975 (citedin note3). 8 See Lindgren,84 ColumL Rev at 680 (citedin note2). This is notquite to label the firstcategory "consequentialists" and thesecond "deontologists." See, forexample, Gordon, 141 U Pa L Rev at 1741-46(cited in note 1) (applyingthese labels to the twocategories). One who believesthat blackmailis wrongon deontologicalgrounds could approveits criminalizationon consequentialistgrounds. In otherwords, it can be importantto distin- guishthe moralbases ofclaims about the wrongfulnessof given conduct from the moral bases ofjustifications for punishing that conduct.See notes 138-39and accompanying text. 9 Few theoriesdispute that at least some substantialsubset of the presentoffense of

This content downloaded from 130.91.146.35 on Wed, 8 Oct 2014 19:25:29 PM All use subject to JSTOR Terms and Conditions 800 The Universityof Chicago Law Review [65:795 distinguishesit, in a mannerrelevant to thatjustification, from the act upon whichthe threatis leveraged.By and large, the theoriesin the firstgroup passably performthe secondtask of distinguishingthe threat from the act. But theyfail to accomplish thefirst task-showing why blackmail should be criminal.In contrast,several theories in the secondgroup provide seemingly per- suasive explanationsfor blackmail's criminalization, but fail to accountadequately for the differencebetween the threatand the act. No priortheory performs both jobs satisfactorily.10

A. The Social Consequencesof Blackmail This Section considers theories that justify blackmail's criminalizationon the groundsthat decriminalization would produce undesirablesocial consequences.

1. Law and Economics:criminalizing inefficient conduct. The principalpuzzle of blackmailis this: why is it (and shouldit be) illegal to threatento do whatit is legal to do absent a threat?11In otherwords, blackmail is an exceptionto the general rule of law and moralsthat one may threatento exercise one's rights.However, blackmail is also unusual in anotherre- spect.Ex post,the successfulblackmail transaction looks like a gardenvariety voluntary exchange: the blackmail"victim" buys

blackmailis properlymade criminal. The contestedquestions, then, concern the reason for its criminalizationand the propercontours of the crime. One exceptioncomes from libertarianism.See MurrayN. Rothbard,1 Man,Economy, and State 157 n 49 (Van Nostrand 1962) ("[B]lackmailwould not be illegalin thefree society. For blackmail is thereceipt of moneyin exchangefor the serviceof not publicizing certain information about the other person.No violenceor threatof violenceto personor propertyis involved.").Because Rothbard'sconclusion stands or fallsupon familiar libertarian premises, however, it need notbe addressedhere. 10This is notto say thata theoryis necessarilyinfirm unless its lessonsprecisely con- formto eitherpresent law orcommon moral intuitions. Rather, the theory must be able to explainoutcomes we woulddeem proper upon considered reflection. For a discussionof this methodof "reflectiveequilibrium," see John Rawls, A Theoryof Justice48-51 (Belknap1971). Naturally, the "burden of persuasion" will fall most heavily on thosetheo- riesthat depart from the status quo byarguing either that blackmail (or somesubstantial subsetthereof) should be madelegal, or that the unconditional performance ofsome pres- entlylegal acts should be madecriminal. " See, forexample, Sidney W. DeLong,Blackmailers, Bribe Takers, and theSecond Paradox,141 U Pa L Rev 1663,1663 (1993) (The criminalizationof blackmail has been consideredparadoxical because it wouldmake unlawfula threatto do somethingthe threatenerhas a legal rightto do.");Ginsburg and Shechtman,141 U Pa L Rev at 1850, 1873(cited in note2); Gordon,141 U Pa L Rev at 1742(cited in note1); RonaldH. Coase, The 1987McCorkle Lecture: Blackmail, 74 Va L Rev 655, 667 (1988); Feinberg,Harmless Wrongdoingat 252 (citedin note2); GlanvilleL. Williams,Blackmail, 1954 CrimL Rev 79, 162-63.

This content downloaded from 130.91.146.35 on Wed, 8 Oct 2014 19:25:29 PM All use subject to JSTOR Terms and Conditions 1998] TakingMotives Seriously 801 the blackmailer'spromise not to disclose certaininformation to which the blackmaileris privy.And, ex ante, the blackmailer's threatto disclosethe informationunless the deal is consummated looks just like any seller's threat to withholda good or service unless the potentialbuyer meets the seller'sprice. But voluntary transactionsare generallyfavored in the law. A secondpuzzle of blackmail,then, is this: Why is blackmail,in contrastto other voluntarytransactions, illegal?"2 Because economistsare greatbelievers in voluntarytransactions,this second puzzle has attractedsome of the most distin- guishedminds in the fieldof law and economics.Almost all"3 favor continuingto criminalizeblackmail-at least in its paradigmatic case -ven while acknowledgingthat it is a voluntary transaction.Unlike most othervoluntary transactions, they argue, blackmailis economicallyinefficient. This Sectionpresents this economicthesis and then offersthree reasons whyit is in- firm. a) The argument:blackmail produces deadweight loss. The central insight,associated principally with Judge Douglas Ginsburg and ProfessorRonald Coase, is simple: In an ordinarymarket transaction,goods, services and/or money move in differentdirec- tions.A gives $x to B, and B transfersgood y to A. Because the parties would not consummatethe deal unless each valued her expectedend state higherthan her initial state,the transaction mustmake bothparties better off. And, all thingsbeing equal, it increases net social welfare.In contrast,the objectiveand the usual result of a blackmailproposal is to redistributeeconomic resourcesfrom the victim,A, to the blackmailer,B, withoutoth-

12 One answerto this puzzle would denythe premise.Under a theorytraced to the philosopherRobert Nozick, the blackmailproposal is coerciveand, therefore, the consum- matedblackmail transaction is not a "voluntary"exchange. If the exchangeis notvolun- tarybecause the blackmailer coerces the victim (and assumingthat coercion is a primafacie wrong),the coerciontheory belongs to the secondcategory-those that justify criminalizationof blackmail as a wrongin itself.See SectionI.B.4. In anyevent, although ad- herentsof the law and economicsapproach by and large approveof criminalizingblackmail,few if any agree that the deal betweenblackmailer and victimis "involuntary."See, forexample, Posner, 141 U Pa L Rev at 1819 (citedin note 2) ("One alternativeto economicanalysis in ... the blackmailcases is to play withthe meaningof 'voluntary,'for exampleby confining 'voluntary' acts to thosein whichsevere constraints are absent;but thisjust adds a layerof uncertainty."); Jennifer Gerarda Brown, Blackmail as PrivateJus- tice,141 U Pa L Rev 1935, 1950 n 32 (1993) ("Thatthe blackmaileemay be facedwith a hard choicebetween the consequencesof disclosureand payingthe blackmailerdoes not necessarilymake the blackmail any morecoercive than the choicefacing many parties to whollylegitimate economic transactions."). 13 For one exception,see JosephIsenbergh, Blackmail From A to C, 141 U Pa L Rev 1905 (1993) (discussedat notes48-52 and accompanyingtext).

This content downloaded from 130.91.146.35 on Wed, 8 Oct 2014 19:25:29 PM All use subject to JSTOR Terms and Conditions 802 TheUniversity ofChicago Law Review [65:795 erwisechanging the status quo ante;B givesnothing of value toA. The blackmailtransaction is thus a sterile redistributiveex- change.Crucially, moreover, it is nota costlessone, for the prac- ticeconsumes two types of resources. The blackmailerinvests re- sourcesinto "digging up the dirt,"and bothhe and his victimin- cur transactioncosts. Blackmailtherefore is likelyto be inefficient,producing deadweight losses and reducingoverall social utility.Hence, Ginsburg, Coase, and othersconclude, it shouldbe prohibited.'4 b) Adventitiousblackmail: underinclusiveness. The firstprob- lem withthe economicthesis is that it is based on a dubious,if not manifestlyincorrect, premise. Were blackmail legal and blackmailcontracts enforceable, B would be transferringsome- thingof value toA-B's rightto performthe act he threatens.Be- forethe transactionis completed,B is legallyfree to revealA's adulteryto A's spouse. By acceptingB's blackmailproposal and tenderingpayment, however, A buysB's promiseof silence (along, verylikely, with such tangiblethings as photographsand nega- tives).'5If bothB and A exchangesomething of value, then the existenceof transactioncosts (includingresources B investsto procuresomething valuable to offerA) seemsirrelevant. The economicthesis does not distinguishblackmail from any othereco- nomic exchange.Put otherwise,"something does happen in a blackmailbargain: a reframingof property rights between A and B."16 For the economicthesis to make sense, then, this "something"just cannotcount. However, it is not immediatelyobvious preciselywhy not.'7For Ginsburgand ProfessorPaul Schecht- man, the reason is that the above criticismmisconceives the propertime of comparison.The key,they argue, is to "viewthe transactionat its outset,"when B firstcontemplates blackmail and has yetto unearthdirt on A: "No rationaleconomic planner

" See, forexample, Coase, 74 Va L Rev at 673 (cited in note 11); Ginsburgand Shechtman,141 U Pa L Rev at 1865(cited in note2). 1 It wouldbe beggingthe questionto objectthat B's promiseis of no value on the groundsthat blackmailis illegal and blackmailcontracts are unenforceable.Whether blackmailshould be illegalis preciselythe question. 6 Isenbergh,141 U Pa L Revat 1920(cited in note13). 17 The reasonfor not counting it cannotbe derivedfrom the supposition that B has no intentto do as he threatens.If the victimhas confidencethat the blackmailerwill not carryout his threatthen, as a practicalmatter, the promisemight well be valueless.In thatevent, however, the victim will call theblackmailer's bluff. If, instead, the victim does consummatea deal withthe blackmailer, it can onlybe becausehe was notconfident that the blackmailer'sthreat was a bluff,in whichcase the latter's(legally enforceable) promise notto carryout his threathas value.

This content downloaded from 130.91.146.35 on Wed, 8 Oct 2014 19:25:29 PM All use subject to JSTOR Terms and Conditions 1998] TakingMotives Seriously 803 would toleratethe existenceof an industrydedicated to digging up dirt,at real resourcecost, and then reburyingit.""8 In other words,blackmail appears "nonallocative"if we comparethe situation afterthe blackmailto that beforethe blackmailerbegan to ferretfor embarrassing information. But this responsehits an intractabledifficulty. If the economicthesis must focus on the blackmailer'sproject before he ac- quires the potentiallydamaging information,it carnnotjustify banningblackmail based on infornationthat he happenedupon adventitiously.Professor Mike Hepworthhas distinguishedfour typesof blackmailbased on the mannerin whichthe damaging informationis obtained:in "opportunisticblackmail," the black- mailerinnocently stumbles upon informationhe subsequentlyre- alizes will serve as useful blackmail fodder;in "participant blackmail,"he was a participantin the conductabout whichhe later blackmailsthe victim;in "commercialresearch blackmail," the blackmailerconsciously seeks informationin orderto blackmail his victim;and in "entrepreneurialblackmail," the black- mailerentices a victiminto a compromisingsituation for the specific purposeof producing the materialwith which he can blackmail.'9 Relyingon this vocabulary,Lindgren objected years ago (in responseto Ginsburg'sthen unpublished manuscript) that the economic approach is substantiallyunderinclusive because it cannotjustify prohibition of either participantor opportunistic blackmail`0-likelya largepercentage of all blackmail. Note that Lindgren'sobjection is not that the potentialmag- nitudeof the deadweightloss is significantlysmaller in cases of participant and opportunisticblackmail than Ginsburg and Shechtmansuppose. It is true that in commercialresearch and entrepreneurialblackmail, the deadweightloss is measured by the sum of(1) the resourcesexpended to discoverthe information and (2) the transactioncosts, whereas in opportunisticand par- ticipantblackmail, transaction costs constitutethe entiredead- weightloss. Properlyunderstood, though, Lindgren's criticism is farmore profound. When the blackmailerdoes notmake an inde- pendenteffort to dig up information-thatis, when the status quo ante cannotbe identifiedas any pointprior to whenhe com- municatesthe blackmailproposal to his victim-thenthere is no basis forcharacterizing the completedtransaction as nonallocative. The transactioncosts, whateverthey may be, are facilita-

18 Ginsburgand Shechtman,141 U Pa L Rev at 1860 (citedin note2). 19Mike Hepworth,Blackmail: Publicity and Secrecyin EverydayLife 73-77 (Routledge 1975). ' Lindgren,84 ColumL Rev at 694-95(cited in note2).

This content downloaded from 130.91.146.35 on Wed, 8 Oct 2014 19:25:29 PM All use subject to JSTOR Terms and Conditions 804 The Universityof Chicago Law Review [65:795 tive,not deadweight-and mirror transaction costs present in or- dinarybargaining situations.2' Instead of agreeingthat their theorycannot explain the criminalizationof participant and opportunisticblackmail, Gins- burgand Shechtmanargue that the transactioncosts still justify prohibitingblackmail even when the informationthe blackmailer threatensto disclose is adventitiouslyobtained. In directre- sponseto Lindgren,they claim that it is of no momentthat a particularB may have come by compromisinginformation accidentally. Should A refuseto pay him,B has no reason to beginincurring expenses, such as are necessaryto securepublication of the information,except insofaras he is lookingto futureopportunities for blackmail.The resourceshe expendsin orderto publishthe information(and presumablyto getcredit as the sourceof it) are justifiedonly from his ex ante perspectiveon the next blackmailingopportunity-regardless of whetherB sets out to findit or waits forit again to comeknocking at his door. Thus, assumingthat the firstblackmail opportunity arrives by accident,when B asks forpayment to suppresswhat he knows,he has becomean entrepreneurof blackmail;for B thento carryout his threatto reveal the informationis an investmentdecision, not a partof the earlier accident.22 This responsedoes not withstandscrutiny. First, and least significantly,insofar as it assumes substantial costs to the blackmailer,the truthis morelikely that "[t]hedirect cost to a

21As Pigouobserved, bargaining itself imposes social costs. See A.C. Pigou,The Eco- nomicsof Welfare 200-03 (Macmillan 4th ed 1932).But becausethere is no moreefficient wayof allocating goods and servicesthan by private bargaining, it is hardto know what to do withhis observation.There is no way to eliminatebargaining, and the deceptionthat comeswith it, without throwing out the baby with the bathwater. See Coase,74 Va L Rev at 671-73(cited in note11) (criticizingPigou). Notably, when it comesto proposinga spe- cificdefinition of blackmail,Ginsburg and Shechtmanappear to overlookthe factthat bargainingeven in ordinarycommercial settings inherently "involves bluff, threats, and, to somedegree, deception." Id at 672. Blackmail,in theirview, is a threatto performa lawfulact thatwould confer no materialbenefit on theparty making the threat. Ginsburg and Shechtman,141 U Pa L Rev at 1865 (citedin note2). A moment'sreflection reveals thatthis articulation is overbroad,for it encompassesevery "threat" to holdout fora bet- terdeal in circumstanceswhere the "threatener's"next best option is inferiorto the offer on thetable. (For example, it wouldmake an athlete'sthreat to sit outthe season a criminal offense.Would the consequence be thatteams could sign most of their draft choices for somethingclose to the minimumwage?) In short,no matterwhat might be said oftheir theory,Ginsburg's and Shechtman'sdefinition plainly does notaccomplish the task they set forthemselves-namely, to distinguishblackmail from the ordinary bargaining that is "actuallyrelied upon in a competitiveexchange economy to disciplinethe market."Id at 1849. m Ginsburgand Shechtman,141 U Pa L Revat 1875-76(cited in note2).

This content downloaded from 130.91.146.35 on Wed, 8 Oct 2014 19:25:29 PM All use subject to JSTOR Terms and Conditions 1998] TakingMotives Seriously 805 blackmailerof actuallycarrying out his threatis ordinarilytriv- ial; it takes almostno effortto mail a photographor a document to someone."23Second, the claimthat B has no reasonto incurex- penses otherthan to bolsterhis reputationas a blackmaileris dubious.If A rejectsB's proposal,B mightcarry out his threatout of spite. And as Ginsburgand Shechtmanthemselves acknowl- edge, there is "no reason in economictheory to dishonor[B's] preferencefor making A suffer."24 Most significantly(and thisis a sufficientobjection, even ifB incursnontrivial costs to carryout his threatand even ifhe does so solely in order to strengthenhis reputationas a credible threatener),Ginsburg and Schectmanare wrongto concludethat "[t]heresources [B] expends. . . are justifiedonly from his ex ante perspectiveon the nextblackmailing opportunity."25 Rather, any expensesincurred might well be justifiedby the blackmailer'san- ticipationof the nextbargaining opportunity. That Ginsburgand Shechtmanoverlook this basic pointis starklyillustrated by their earlierargument that "B's onlypotential gain . . . is in establish- inghis credibilityas someonewilling to incura costif not obliged. But that is an asset only insofaras B is an entrepreneurof blackmail,i.e., someonewho expectsto engage in similarfuture transactions."26Not at all. A reputationas someone willingto foregoa benefitor incur costs if not obliged is extraordinarily valuable in the "legitimate"business world.It allows one to se- cure a disproportionatelylarge share of the potentialbenefits of exchange.And, when it comes to exploitingthat reputation,it should make no differencewhether it was forgedas an adventi- tiousblackmailer, or as a used car salesman,or as a distributorof fava beans. It remainsto considerone otherrejoinder to Lindgren'scri- tique of the law and economictheory-a rejoinderthat does not

' StevenShavell, An EconomicAnalysis of Threatsand TheirIllegality: Blackmail, Extortion,and Robbery,141 U Pa L Rev 1877, 1889 (1993). Shavell also notesthat "[t]he costto a blackmailerof carrying out his threatprobably inheres mainly in any resulting increasein therisk of his beingcaught and punished.But the blackmailercan usuallyre- veal his informationanonymously, using the mail or the telephone."Id. Shavell'spoint is even strongerthan he seemsto realize.The blackmailer'scosts of avoiding detection and punishmentare notrelevant when deciding whether blackmail should be punishable. 24 Ginsburgand Shechtman,141 U Pa L Rev at 1864 (cited in note 2) (emphasis added).They proceed to argue,however, that the rational economic planner can ignoreB's welfareinterest in actingspitefully on the groundsthat "some potential gains are notre- alizablebecause they are notas greatas thecost entailed in theiridentification." Id. But if B's pleasurein harmingA countsin thewelfare calculus, then a realisticappraisal of the costsincurred by the adventitious blackmailer becomes critical. 5 Id at 1876(emphasis altered). ' Id at 1865(emphasis added).

This content downloaded from 130.91.146.35 on Wed, 8 Oct 2014 19:25:29 PM All use subject to JSTOR Terms and Conditions 806 The Universityof Chicago Law Review [65:795 rely on transactioncosts. ProfessorSteven Shavell has agreed that the criminalityof participantand opportunisticblackmail "cannotbe explainedby a need to discouragewasteful efforts to obtain information."27Instead, he argues that if adventitious blackmailis not illegal,"potential victims will exerciseexcessive precautionsor reducetheir level of innocent,yet embarrassing, activities"to preventbeing blackmailed by personswho chance upondamaging information.28 This argument,however, will not work.Assume that, were participantand opportunisticblackmail legalized, people would reduce the level of activitiesthat mightserve as a basis for blackmail,and wouldincrease precautions against beingdiscov- eredwhen they do engagein such activities.Such an assumption is an economicreason formaking blackmail illegal only if the costsof these consequences outweigh their social benefits.Surely that is so if we acceptShavell's invitation to consideronly innocent activities.However, there is no warrantfor adopting such a narrowfocus. As Shavell himselfrecognizes, three categoriesof "embarrassing"activities might serve as the basis for blackmail:(1) purelyinnocent socially harmless acts like "engagingin conven- tional sexual intercoursewith one's spouse, or even taking a shower";(2) sociallyharmful but legal acts such as adultery;and (3) criminalacts.29 As to the secondcategory-which surely would be as numerousas the first30-Shavellconcludes that the social value oflegalizing blackmail is ambiguousbecause it is uncertain whether(a) the beneficialeffect of reducingsocially undesirable activitieswould outweigh the sum of(b) the blackmailer's"wasteful effortsto obtain information"and (c) the victims'costs of

7 Shavell,141 U Pa L Revat 1903(cited in note23). 28Id. 2 Id at 1897-99. ' One couldobject that, because everybody is vulnerableto firstcategory blackmail, its incidencewould far exceed that of second category blackmail in a worldwhere blackmail werelegalized. I do not thinkthis is the case. In mostinstances of firstcategory blackmail,the blackmailermust be threatening,not just to revealinformation, but to publicizetangible evidence. A blackmailerwill not get rich, to takeProfessor Shavell's example,by threatening to tella marriedcouple's neighbors and coworkersthat the couple engagesin conventionalsexual intercourse;as Shavell recognizes,the blackmailermust threatento distributephotos of the act. Id at 1897. But thiswill notbe so easy,for laws (and norms)against privacy invasions would remain operable even under a regimeof legal blackmail.Moreover, the potentialpayoff from such threatswould often be too small to encouragethe practice.Despite Shavell's examples, the mostlikely subject of firstcate- goryblackmail must be innocent,harmless acts thatare nonethelessthe targetof social prejudice.The incidenceof first category blackmail would, therefore, diminish in propor- tionas generalsocial tolerance increases.

This content downloaded from 130.91.146.35 on Wed, 8 Oct 2014 19:25:29 PM All use subject to JSTOR Terms and Conditions 1998] TakingMotives Seriously 807 guardingagainst blackmail.3'We will considershortly whether such an ambivalentconclusion about the overallconsequentialist balance warrantsmuch supportfor a generalizedban on blackmail.32But it is surelynot enough to justify criminalizing adventitious blackmail,for it is implausiblethat the balance would remain ambiguouswhen no resourceshave been expendedto obtain the informationin question.33Consequently, Shavell's "incentive- based" responseto Lindgrensucceeds at most in justifyingcon- tinued prohibitionof adventitiousblackmail of innocentconduct thatsociety has no interestin discouraging. Therefore,Shavell's contributionsnotwithstanding, the law and economicsapproach still cannot justifyprohibiting conditional threatsto reveal informationabout sociallyundesirable34 behaviorwhere such informationwas obtainedwithout cost.35

3' Id at 1899. 32 See notes38-42 and accompanyingtext. A completedemonstration of this argumentwould consumemore space than the subjectwarrants, especially since Shavell never expressly develops the contraryclaim. In simplifiedform, the argumentassumes that, in a regimewhere all blackmailis criminal, the discountedcost of detection to a person,P, whoengages in secondcategory conduct is x. Werean exceptionto the blackmailban carvedout foradventitious blackmail, P would facean additionaldiscounted cost of detection of y. Let n equal thecosts to P oftaking ex- tra precautionsto avoid detection,and let m equal the coststo P offoregoing the second categoryconduct. For anygiven P, allowingadventitious blackmail is costlyfor society, on Shavell'sreasoning, only when (i) x ? n < x + y < m. (Ifx > n, P takes the precautionsre- gardlessof whether adventitious blackmail is legalized;if n > x + y, P eschewsextra pre- cautionseven if adventitious blackmail is legalized;if x + y > m,P choosesto foregothe ac- tivityrather than take additionalprecautions.) Meanwhile, legalizing adventitious blackmail incurspositive social value if(ii) x < m < x + y. If the values fory are low,events (i) and (ii) are bothfairly unlikely. However, assuming that the benefitto societyfrom any one P foregoingthe activityat issue is greaterthan the cost to societyfrom any one P takingextra precautions at costto himof n, event(i) wouldhave to be considerablymore commonthan event (ii) forlegalizing adventitious blackmail of second category conduct to be a bad socialbargain on Shavell'sreasoning. This is not provablyfalse, but seems sub- stantiallyunlikely. This argumentcan be illustratedby consideringShavell's own example of the typeof activitythat might form the basis forsecond category blackmail: "the wasteful but notil- legal spendingof church funds by a minister."Shavell, 141 U Pa L Rev at 1898 (citedin note 23). The beneficialeffects of permittingblackmail in such cases is clear-to induce ministers"to use churchfunds more responsibly." Id at 1899.The principaladverse effect is "theeffort expended [by profligate ministers] to .. . avoidblackmail." Id. If,as Shavell asks us to suppose,"the minister can avoiddetection if he goesto the troubleof making all purchaseswith cash insteadof his creditcard," id, howoften would the threat of legalized adventitiousblackmail (over and above the threatof detection in a regimethat criminalized adventitiousblackmail) induce such behavior? 3 We willbracket the questionof whether law and economicsjustifies the prohibition against blackmailbased on threatsto reveal sociallyundesirable and illegal behavior (wherethe informationis obtainedwith or withoutexpenditure of resources). See Section III.B.3. 3 Acknowledgingin a recentarticle that the economicresponses to Lindgren'schal- lenge have been inadequate,Professor Richard McAdams has proposeda "second-best"

This content downloaded from 130.91.146.35 on Wed, 8 Oct 2014 19:25:29 PM All use subject to JSTOR Terms and Conditions 808 TheUniversity ofChicago Law Review [65:795 c) Nonadventitiousblackmail: the indeterminacy of externalities. The foregoinganalysis does not implythat the economicthesis succeedsin justifyinga ban on blackmailbased on information that is obtainedby the expenditureof resources,for the fact(if true)that a giventransaction reduces the aggregatewealth of the actual partiesto theexchange does notprove that the transaction reducesthe overallwealth of society. As Shavell'seffort to resus- citatethe economicthesis for prohibiting participant and opportunisticblackmail reflects, economists are as concernedwith ex- ternalitiesas theyare fondof voluntary exchanges. Accordingly, if the threatand practiceof blackmailproduced positive externalities (by encouragingsocially useful activityor discouraging sociallyharmful behavior), then a regimethat permittedblack- mail mightbe wealthmaximizing relative to a regimethat pro- hibitedit. Indeed,Judge RichardPosner has systematicallyassessed the varioustypes of informational blackmail in an effortto evalu- ate this very possibility.36Adopting a purportedlyexhaustive seven-partclassification of acts or conditionsthat a blackmailer mightthreaten to reveal,37Posner concludes that in none of the

economicdefense of the criminalban against adventitiousblackmail. See RichardH. MeAdams,Group Norms, Gossip, and Blackmail,144 U Pa L Rev2237, 2266-92 (1996). In MeAdams'sview, absent social norms, adventitious blackmail produces a suboptimaldis- seminationof adventitiously discovered information, while a blackmailban producesa su- peroptimaldissemination of such information.However, he argues,norms favoring pri- vacycorrect the latterinefficiency better than normsfavoring disclosure correct the former.Therefore, criminalization of adventitious blackmail is moreefficient than legalization. ThoughMcAdams's argument is intriguing,its consequencesare morefar-reaching than he concedesand than are acceptable.McAdams claims only to "supplement[] the economictheory of blackmail." Id at 2287. See also id at 2267 n 82. In fact,his analysis restson a verydifferent footing. The economiccase againstblackmail rests on thepremise thatit is appropriateto criminalizeconduct that resultsin deadweighteconomic losses. McAdamsrecognizes that much adventitious blackmail cannot be justifiedon thatprinci- ple. Id at 2287. He also eschewsreliance on any administrativedifficulties of excepting adventitiousblackmail from a generalblackmail prohibition. Id at 2270 n 93. Therefore, theunstated premise of his argumentis thatit is a sufficientcondition for criminalization thata legal prohibitionwould likely produce a more"efficient" social distribution of information.It followsthat his theorywould tolerate an elaborateregime of criminallaws mandatingdisclosure of certain categories of information and prohibitingconcealment of others. 3 See Posner,141 U Pa L Rev 1817(cited in note2). 37 Posner'scategories are as follows:(1) criminalacts forwhich the blackmailer's victimhas been punished;(2) undetectedcriminal acts; (3) acts thatare wrongful,perhaps tortious,but not criminal; (4) wrongfulacts of which the blackmailer (or his principal)was thevictim; (5) disreputableor otherwisecensurable acts thatdo not,however, violate any enforcedlaw; (6) involuntaryacts or conditionsthat are a sourceof potential humiliation; and (7) any ofthe firstsix categories,except that the victimdid notcommit the act for whichhe is beingblackmailed. Id at 1820.

This content downloaded from 130.91.146.35 on Wed, 8 Oct 2014 19:25:29 PM All use subject to JSTOR Terms and Conditions 1998] TakingMotives Seriously 809 cases couldwe be confidentthat therewould be a countervailing social benefit.On this basis, he agrees with the Ginsburg- Shechtmanthesis that blackmailis on average wealth reducing and thereforeshould be prohibitedby the criminallaw.38 One potentialproblem with Posner's approach arises from the factthat his taxonomyis notas exhaustiveas he suggests.He providesno accountof threats to do anythingother than disclose informationor of demands forsomething other than pecuniary gain. More troublingis the questionablenature of some of Pos- ner's centralconclusions. For example,Posner concedesthat the social welfarearguments against his "categorytwo" and "category five"blackmail-threats to reveal that a victimhas engaged ei- therin a criminalact forwhich he was not caughtand punished or in disreputableor immoralacts that do not violate any com- monlyenforced law-are inconclusive.39He is able to disfavorle- galizingsuch formsof blackmail, therefore, only by privileging"a presumptionagainst the expenditureof scarce political capital on an effortto change laws that are not demonstrablyinefficient" overa contrasting"presumption against government intervention in privateaffairs that is notdemonstrably efficient."t0 AlthoughPosner's characteristic candor is commendable,his argumentis doublyodd. First,it is tellingthat Posner'sanalysis yieldsambivalent conclusions with regard to these twocategories of blackmail.Most people, I venture,would find criminalizing bothentirely appropriate.4" But it is even morepeculiar that Pos- ner is so willingto see bothforms of blackmail criminalized notwithstandingthe ambivalence of his conclusions especially givenhis explicitrecognition of the distinction"between an ana- lyticalevaluation and a policyrecommendation."42 I suspect that mostreaders would read his articleto supportthe verydifferent conclusionthat the economiccase against blackmailcannot survive withoutmore rigorous empirical work and predictivemodel-

3 Id at 1818. 3 Id at 1827,1835. Posner had visitedsuch issues before.See WilliamM. Landes and RichardA. Posner,The PrivateEnforcement of Law, 4 J Legal Stud 1, 42-43 (1975) (con- sideringwhether a blackmailthreat to revealthat the blackmail victim committed a crime mightincrease social utility-and thereforewarrant legalization-by reducingother crimes). 40 Posner,141 U Pa L Rev at 1827 (citedin note2). See also id at 1835 ("[O]nceagain, the argumentfor allowing blackmail is too speculativeto make a strongcase fordecrimi- nalizingthis particular form of extortion."). 41 As furtherevidence of Posner's departure from common moral intuition, consider his suggestionthat where A is an adulterer,it shouldbe legal forB to threatento beat himup unless paid ifthe data revealed"that allowing such threats would reduce breaches of the maritalobligation at a costcommensurate with this benefit." Id at 1835. 42 Id at 1827.

This content downloaded from 130.91.146.35 on Wed, 8 Oct 2014 19:25:29 PM All use subject to JSTOR Terms and Conditions 810 The Universityof Chicago Law Review [65:795 ling.Unless and untilthe law and economicsscholars can demon- stratemore persuasively that blackmail reduces social wealth,it will remain diffilcultto reconciletheir defenseof blackmail's criminalizationwith their methodology's scientific and positivist aspirations. d) The unbridgedgap: whycriminalize? Even if nonadventi- tious blackmailwere shownto reducesocial wealth,and even if the theory'sapparent failure to cover adventitiousblackmail could be rectifiedor excused,reliance on considerationsof eco- nomicefficiency cannot explain why blackmail is notmerely dis- couragedor evenprohibited, but criminalized. Froma retributivistperspective, the premiseunderlying the economicargument-that economic inefficiency is a sufficient conditionfor imposing criminal punishment-is anathema. Hence ScottAltman's observation that the economicjustification for the criminalizationof blackmail must prove unsatisfactory to "all but the most committedconsequentialist."43 More significantly, though,the premiseis falseeven for committed consequentialists. Because any utilitariancalculus must take intoaccount the pain sufferedby the individualwhose libertyand happinessis cur- tailed forthe greatergood of others,44utilitarianism commands that societyadopt the least restrictivemeans of social control. Similarly,under principles of wealth maximization,45 criminaliza- tioncan be justifiedonly if its incrementaldeterrent effect com- pared withother means of deterrence exceeds the greatercost of employingthe criminallaw.46 So on bothutilitarian and wealth maximizinggrounds, criminalization of blackmail cannot be justified unless the marginalbenefit of criminalsanction-relative, say, to makingblackmail agreements unenforceable as a matter of contractlaw (as is presentlythe case) or makingblackmail a tort-outweighthe marginal social cost.47

43 ScottAltman, A PatchworkTheory of Blackmail, 141 U Pa L Rev 1639,1656 (1993). " See generallyJeremy Bentham, An Introduction to thePrinciples of Morals and Leg- islation165-74 (Methuen 1970) (originally published in 1789). 4 Fora briefexplanation of the difference between utilitarianism and wealthmaximization,see RichardA. Posner,Economic Analysis of Law 12-17(Aspen 5th ed 1998).Very roughly,utilitarians seek to maximizehappiness, defined as the aggregationof private subjectivedesires; wealth maximizers seek to maximizeefficiency, defined as the assign- ingof property rights (broadly understood) to thosewho value themmost highly as meas- uredby theirwillingness and abilityto pay forthem, taking into account the cost of any particularassignment. " See, forexample, id at 242-50. 4 Whiletaking for granted that blackmailis properlycriminalized, Posner has ex- ploredthe related question of why it is "punishedseverely in comparisonwith other non- violentthefts." Posner, 141 U Pa L Rev at 1836(cited in note2). Criminalizingblackmail,

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The one proponentof the law and economicsthesis to have even attemptedthe necessarycost-benefit demonstration, Profes- sor Joseph Isenbergh,has concludedthat the marginal social benefitdoes not outweighthe marginalsocial cost. Isenberghbe- gins by observingthat "A gains no real controlover disclosure froman unenforceablebargain with B. And ifB cannotassure A of any increasedcontrol over disclosure,B cannot extractmuch fromA, and thereforehas littlereason to invest much effortin bargaining."48Therefore, there is likelyto be little(nonadventi-

Posnertheorizes, reduces its occurrenceby three mechanisms. It (1) givesthe blackmailer an incentivenot to revealthe victim's secret after the victim has complainedto the police,which makes such complaints more likely and therefore blackmailless likely;(2) makes it impossibleto conductblackmail in the open; (3) preventsthe blackmailer from offering his victima legallyenforceable promise of secrecy. Id at 1840.Posner recognizes that the latter two effects work independently of the severity ofthe penalty.He even notesthat increasingpenalties may actually decrease the deterrentvalue ofthe secondeffect because whenblackmail cannot be conductedopenly, it is mostlikely to be conductedby an intimateof the victim; when the victimand blackmailer are intimates,proof of the blackmailis moredifficult; and whenproof is less convincing, the likelihoodthat juries will convictstands in inverseproportion to the severityof the punishment.Id. Thus, in Posner'sargument, attaching severe penalties to blackmailcan be justified onlyto the extentthat the firstalleged effect-which depends on Posner'sassertion that the'blackmailer, once caught, usually will keep mum in an effortto obtainleniency," id at 1838-39-outweighsthe second.But whywould this be? Even puttingaside skepticism that "keepingmum" will be a majorelement in a plea bargain,the dispositiveissue con- cernsthe extent to whichthe attractionof leniency depends upon the severityof the prescribedpenalty. Although Posner does notelaborate on his contentionthat "[tihefirst ef- fectis enhancedby severepunishment," id at 1840,I supposeit is based on his assumptionthat the defendant'sobjective in plea negotiationsis to purchasethe largestpossible reductionin sentence.If so, the likelihoodof reachinga successfulplea bargainis enhancedby longer potential sentences: the largerthe possiblepenalty, the greaterthe deal theprosecutor can offer.But ifthe defendant is moreinterested in thelength of the actual sentenceimposed than in the magnitudeof the differencebetween the actual and potential sentences,large penaltieson the bookscan reducethe prospectsfor reaching a plea insofaras thereexist any institutionaland/or psychological constraints on the amountof timea prosecutorcan bargainaway. And if the defendantcan onlybe inducedto silence bylarge relative reductions of sentence, the severityof the prescribedpenalty is mostlyir- relevant.These are, of course,highly simplified assumptions. They nonethelesssuggest that,if efficiency concerns justify criminalizing blackmail at all, the economicconsidera- tionsPosner identifies are as likelyto weigh in favorof lenient punishment as strict. 4 Isenbergh,141 U Pa L Rev at 1928 (citedin note 13). See also Posner,141 U Pa L Rev at 1841 (citedin note2) (notingthat the thirdof his proposedmechanisms by which criminalizationdeters blackmail "could be achievedwithout criminal law simplyby making blackmailcontracts unenforceable as a matterof contractlaw"). This propositionis slightlymore problematic than Isenberghacknowledges. Making blackmail agreements unenforceablemight substantially deter payment when the blackmaileris not a repeat performerbecause the victimcould not be sure thatthe blackmailer would remain silent. But repeatperformers present a differentcase. Regardlessof whether the contractis legally enforceable,the hypotheticalblackmail firm that mightarise were blackmailde- criminalizedwould find a reputationfor trustworthiness critical (the apparentirony not-

This content downloaded from 130.91.146.35 on Wed, 8 Oct 2014 19:25:29 PM All use subject to JSTOR Terms and Conditions 812 The Universityof Chicago Law Review [65:795 tious)blackmail in a regimethat seeks to deterblackmail simply by makingblackmail agreements unenforceable as a matterof contractlaw.49 Of course,it is possiblethat there would be even less blackmail in a regimethat made blackmailagreements unenforceable and barredblackmail through the criminal law. Notingthe rarity ofblackmail in the case law, Posnerhas speculatedthat the few reportedcases accuratelyreflect a low incidenceof the crime.An- ticipatingthat potentialvictims would refuse to pay blackmail, he surmises,a vast numberof would-be blackmailers choose not to risk the criminalpenalty.50 This is unpersuasive.It is more likelythat blackmailis far morefrequent than the incidenceof reportedcases suggests,and thatthe low rate ofprosecution reflectsthe substantialwillingness of victims to pay. One wouldex- pectan economicallyrational blackmailer to conceiveand propose a blackmailprice low enoughto reduce substantiallythe probabilitythat his victimwill reportthe blackmailerto the police ratherthan acceptthe deal. Thus,although the social costof the blackmailprohibition is apparentlylow (commensuratewith the infrequencyof prosecution and conviction),the deterrentvalue of the criminalban is likelyto be as small or smaller.Because the goal froman economicstandpoint is to achievenot maximum de- terrencebut optimal deterrence,it is hard to conclude that blackmail'scriminalization is a goodbuy. Moreover,the economiccase against criminalizationmay be even stronger,for the blackmailban mightbe positivelycounter- productive.As Isenberghhas explained, if blackmailis made a crime,A gains considerablecontrol overdisclosure from entering into a bargainwith B, because B, by incurringthe criminalexposure of a blackmailer,can now sell A a much higherlikelihood of silence. . . . The criminal prohibitionof blackmail, therefore,makes the

withstanding).Such an entitywould find ways to makeits guaranteeof silencecredible. But thisobservation still does not warrant criminalization, for there are otherways to dis- courageEpstein's "Blackmail, Inc.' (discussedin SectionI.A.2 below).For instance, in additionto makingblackmail contracts void, the state could ban blackmailadvertising and/orwithhold the benefits of incorporation from firms engaged in blackmailing. 4 This conclusionis furtherreinforced when we re-examinePosner's three proposed mechanismsby whichcriminalization deters blackmail. As notedabove, Posner himself recognizesthat the third mechanism can be achievedwithout criminalization. See Posner, 141 U Pa L Rev at 1840-41(cited in note2). Dependingupon the degreeof moral censure attachingto blackmail, the second mechanism could as well. 50Id at 1841.

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blackmailbargains entered into across the thresholdof pro- hibitionhighly enforceable.5' And if the would-beblackmailer anticipates that a consummated bargain will be meaningfullyenforceable, he is more likely to committhe resources necessary to undertakethe activity. In short,making blackmail a criminaloffense might deter some blackmail that would not be deterredin a regime that merelymade the blackmailcontracts unenforceable. But, if so, its deterrenteffect is likelyto be small. The ban mightbe moder- ately efficientor moderatelyinefficient. On the other hand, criminalizingblackmail might even increaseits incidence.In that event,resort to the criminallaw is inefficient-maybesubstan- tiallyso. Givensuch indeterminacy,the proposition(necessary to the economicjustification for criminalization) that the expected value ofcriminalizing blackmail is positiveseems highly dubious. * * * The foregoinganalysis supportsthree conclusions about the law and economicsargument on blackmail.First, the economic approachfails to justifyprohibitions against adventitiousblackmail. Second,whether other major formsof blackmailare truly disadvantageouson law and economicsprinciples is farfrom certain once one takes externalitiesinto properaccount. Third, it is unlikely that the economicargument warrants resort to the criminallaw. Acceptingthe firstand thirdof these conclusions, Isenberghhas arguedthat the law can adequatelydeter any inef- ficiencyblackmail causes simplyby makingcontracts of silence enteredinto between a blackmailerand his victimvoid and unenforceable,except for contracts involving adventitious blackmail.52 But if the economicapproach to the blackmailpuzzle leads ultimatelyto Isenbergh,then we should look elsewhereto solve it. For althoughhe concludesconfidently that "[t]hereis no other way to explain the law of blackmail,"53Isenbergh's radical proposals to decriminalizecertain types of blackmail reveal that the economists'purported explanation is no justification.Before we agree that commercial research, and even entrepreneurial, blackmail should be freed fromthe criminal law's grasp, we

5' Isenbergh,141 U Pa L Rev at 1928 (citedin note13). 52 More precisely,in lightof the difficultyin ascertainingwhether given information was costlesslyobtained, Isenbergh would, as a proxy,make all contractsto remainsilent enforceableif the partiesknew each otherbefore the blackmailbargain. He would also make an exceptionto that exceptionin cases wherethe blackmailcontract concerns si- lenceabout the commission of torts or crimes.Id at 1925-32. 53 Id at 1921.

This content downloaded from 130.91.146.35 on Wed, 8 Oct 2014 19:25:29 PM All use subject to JSTOR Terms and Conditions 814 The Universityof Chicago Law Review [65:795 woulddo well to searchfor an accountmore in tunewith current law and commonintuition.

2. RichardEpstein: blackmail as the"hand-maiden to corruptionand deceit." ProfessorRichard Epstein has proposeda differentconse- quentalistsolution to the blackmailpuzzle. Althoughhimself a prominentlaw and economicsscholar, Epstein's specific concern is notthe deadweighteconomic losses thattrouble Posner, Gins- burg,and Coase. Instead,Epstein argues that blackmail is criminal because it has a necessarytendency to induceother acts of theftand deception,the criminalizationof which is whollyunpuz- zling.5This differencenotwithstanding, Epstein's theory suffers fromsome of the same flawsas does the argumentfrom economic efficiency. Epstein"begin[s] with a briefaccount of the moraltheory of criminalresponsibility"55-to wit, that there is no criminalliability withoutmens rea and actus reus. Blackmail,he concludes, easilysatisfies the mens rea requirement,for "[t]he element of intent is always presentin vivid form."56But the actus reus re- quirementpresents a problem.Only the threator use offorce or fraudcan satisfyit, Epsteinargues,57 and blackmail(ordinarily) involvesneither.58 One could "arguethat the threatto discloseis illegalprecisely because the disclosureitself, if made, ought to be illegal."59But this argumentfails, Epstein concludes, because it "jettisonsthe basic theoryof criminalresponsibility by holding that deliberateacts, not involvingthe use of forceor fraud,may themselvesbe regardedas criminal.'0 Epsteinmaintains that the solutionto the blackmailpuzzle appears whenone imaginesa worldin whichblackmail were legalized:

5 Epstein,50 U Chi L Rev at 553 (citedin note2). Preciselywhy the traditional,unproblematic,crimes should be criminalis notclear from Epstein's essay. As we will see, however,Epstein's account of blackmailis incompatiblewith any plausiblejustification (beyondhis ownidiosyncratic interpretation ofthe actus reus and mensrea requirements) forthe criminalization ofcommon law larcenyoffenses. 5 Id at 555. 56Id. Id at 555-57. Epsteinnotes that blackmail can containforce or fraud,as, forexample, when the blackmailerthreatens to discloseinformation gleaned from stolen documents. Id at 558. But in such a case, makingblackmail criminal presents no puzzle,for [i]t is easy to re- gardblackmail as a criminaloffense whenever the disclosureis itselfregarded as wrongful."Id. 59Id at 560. 60Id.

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[T]herewould then be an open and publicmarket for a new set of social institutionsto exploitthe gains fromthis new formof legal activity.Blackmail, Inc. could with impunity place advertisementsin the newspaperoffering to acquirefor top dollar any informationwith the capacityto degrade or humiliatepersons in the eyes of their familiesor business associates.6" The existenceof Blackmail, Inc. wouldproduce at least twounde- sirable consequences,Epstein claims. First, the greaterpreva- lence ofblackmail would lead to moreblackmail victims and, consequently,greater incidences of theftand fraudby victimsdes- perate to obtain the funds necessaryto pay the blackmailer.62 Second,because Blackmail,Inc. would "recognizeE] that its abil- ity to extractfuture payments from [the victim]depends upon [the thirdparty to whom the disclosurewould be made] being kept in the dark,"it would "instruct[the victim]in the proper way to arrangehis affairsin orderto keep the disclosuresfrom beingmade."63 In short,Epstein concludes, "[b]lackmail is made a crimenot only because ofwhat it is, but because ofwhat it neces- sarilyleads to.... [I]t is the handmaidento corruptionand deceit."' Epstein's conclusion,however, does not follow from his analysis. The real thrustof Blackmail, Inc. is that blackmailis properlymade a crimenot because of "what it is," but only because ofits consequences.Epstein's assertion that force and fraud exhaust the concernsof the criminallaw necessarilyentails that criminalizationof blackmailwould be impermissible(given that blackmail does not itselfconstitute fraud or force)but for the fraudulentconduct it engenders.In otherwords, Epstein's theory providesnot only that the systemicconsequences he identifiesare sufficientfor imposition of criminalliability as a generalmatter, but also that thoseconsequences constitute a necessarycondition forimposition of criminal liability in the particularcase ofblackmail. Were this true,the properscope of the crimeof blackmail would be substantiallynarrower than it is at present.Consider, forexample, a blackmailproposal in whichthe blackmailerde- mands sexual favorsfor the nondisclosureof embarrassingin- formationthat the victim has no moralobligation to divulge(such as her own illegitimatebirth). This formof blackmail would nei-

6 Id at 562. 62 Id at 564. 63 Id. 64 Id at 566.

This content downloaded from 130.91.146.35 on Wed, 8 Oct 2014 19:25:29 PM All use subject to JSTOR Terms and Conditions 816 The Universityof Chicago Law Review [65:795 therinduce the victimto engage in theftor fraudnor encourage any "deception"that societyhas a legitimateinterest in deter- ring.Under Epstein's reasoning, it shouldnot be criminalized.65 A second problemwith Epstein's theoryis that the claim uponwhich it rests-that forceand frauddemarcate the criminal law's properreach-is extremelydubious. Even aside from'vic- timless"offenses such as gambling,prostitution, and drug use, criminalizationof whichis notoriouslysuspect on liberalprinci- ples, the state makes numerousactivities criminal that appear not to involveeither force or fraud.These offensescover a wide rangeof conduct from statutory rape to indecentexposure to lar- cenyby stealth.Conceivably, Epstein could respond either by ar- ticulatingconceptions of force and fraudsufficiently expansive to encompassall ofthe foregoing activities or by explaining why it is morallyunjustifiable for the stateto makesuch conduct criminal. But he has notdone so. Finally,the internallogic of Epstein'stheory is fundamen- tallyflawed. Epstein maintains (1) that the "basic,""moral" theoryof criminallaw holds that acts not involvingforce or fraud maynot themselves be criminalized,and (2) that actionsthat in- duceforce and fraudmay also be criminalized.66This secondprin- ciple is frustratinglyunderdeveloped.67 More profoundly,these two principlesare not compatible:claim (2) emptiesclaim (1) of anymeaningful moral content. Epstein claims that it is morallywrongful for the state to punishpeople for engaging in nonforceful,nonfraudulent actions. This assertionmust rest on reasons,even thoughEpstein does notstate whatthey are. Those reasonswill be eitherdeontologi- cal or consequentialistin nature.A deontologicreason wouldbe thatpeople have a moralright to be freefrom punishment by the statefor actions not involving force or fraud,no matterwhat the consequences.But Epstein'ssecond principle is inconsistentwith thisjustification-it allows the stateto punishacts outsidethese areas, ifthey lead to forceor fraud.So claim(1) mustrest on con- sequentialistreasons. But if Epsteinallows such reasons,his ar-

5 Unless,that is, the practicaldifficulties in exceptingsuch cases froma general blackmailban wouldbe insurmountableor too costly-a contentionEpstein does not make. Epstein,50 U Chi L Revat 555,565-66 (cited in note2). 67 Consider,for instance, the pricing and marketingstrategies of major sneaker manu- facturers.Though we mightnot have predictedit ex ante,we nowknow that kids rob and kill forother kids' sneakersand forthe moneywith which to buy sneakers.Under Ep- stein'sprinciple, we couldmake it a criminaloffense for Nike to advertisein innercities or to priceAir Jordans far out of the comfortable reach of the average low-income adolescent male.And the standards by which to measure whether we shouldare notat all apparent.

This content downloaded from 130.91.146.35 on Wed, 8 Oct 2014 19:25:29 PM All use subject to JSTOR Terms and Conditions 1998] TakingMotives Seriously 817 ticulationof "the moral theoryof crminal responsibility"seems too narrow:in principle,anything that leads to the same typesof consequencesas acts of forceand fraudcould be made crminal. This conclusioncould be avoided,I think,only by adoptinga consequentialistmoral theory in whichacts offorce and fraudconsti- tute the essential, irreducibleunits of measurement.Why this shouldbe, though,is a mystery.Unfortunately, Epstein provides no explanationhimself. It follows,then, that Epstein's assertion that "deliberateacts, not involvingthe use of forceor fraudmay [not]themselves be regardedas criminal"'8must be understood eitheras a descriptiveclaim (in whichcase, as we have seen, it wouldbe false) or as a rule of prudence;it is not a statementof politicomoral obligation. In sum, Epstein's theoryfails for three reasons. First, it wouldleave a significantsubset of blackmail-that whichneither inducesthe victimto engagein theftor fraudnor encourages any deception-uncriminalizable.Second, it rests on the questionable moralprinciple that force or fraudshould be necessaryconditions forcriminalization. Third, and fatally,were Epstein nonetheless correctthat forceor fraudshould be necessaryconditions for im- posingcriminal punishment, his furtherclaim that it is morally justifiableto criminalizeconduct that is not itselfforceful or fraudulent,if that conduct encourages other acts offorce or fraud, cannotbe sustained.

3. JeffrieMurphy: blackmail encourages invasions ofprivacy. A thirdtheory, proposed by ProfessorJeifrie Murphy,69 ex- hibits similaritiesto both of the approaches already discussed. Like Epstein,Murphy focuses on the antisocialconduct that legalizing blackmail might encourage. Like proponentsof the deadweightloss hypothesis,Murphy seems principallydriven to explain and justifythe distinctionbetween blackmail and "other hard economictransactions."70 Like bothearlier approaches, however, Murphy'stheory is substantiallyunderinclusive and rests on contestablepremises. Murphyproceeds in three steps. He begins with twin as- sumptionsabout the moralunderpinnings of the criminallaw: The firstis that immoralityshould be a necessarycondition forcriminalization but not a sufficientcondition. The second

6 Epstein,50 U Chi L Rev at 560 (citedin note2). 69 See Murphy,63 Monist156 (citedin note2). 70 Id at 156.

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is that utilitarianconsiderations, though unsatisfactory in explicatingthe conceptof immorality, are a reasonablebasis on whichto answerthe question"Which of all immoralac- tionsshould be criminalized?"71 He then assertsthat blackmailand hard economictransactions "are bothintrinsically immoral (and immoralfor the same reason-e.g., takingan unfairadvantage of the victim'svulnerabil- ity)."'2Third, he explainsthat utilitarianconsiderations support (1) criminalizingthe blackmailof persons who are notpublic figures,because legalized blackmail would create a new incentiveto invadethe privacyof average persons,73 and (2) notcriminalizing hard economictransactions, because thereis no apparentway to draw objectivelysensible and enforceablelines betweenimmoral and moraltransactions.74 One problemwith Murphy's theory should be apparent.As Lindgrenhas pointedout, Murphy's theory cannot justify crimi- nalizingparticipant and opportunisticblackmail, because any in- vasionsof privacy such formsof blackmail occasion would be un- affectedby blackmaillaws.75 There is, however,a fargreater dif- ficulty:Murphy's theory cannot survive on a bare assertionthat blackmailis immoralbecause it takes unfairadvantage of a vic-

71 Id at 163. 72 Id.

73 Notingthat substantial economic incentives to invadethe privacy of "public figures" alreadyexist, Murphy would generally permit blackmail of such figures at ratesthat do notexceed the market price for the information in question.However, because concealing embarrassinginformation about some public figures can be harmfulto the legitimatein- terestsof a democraticcitizenry, Murphy would bar eventhe "market price" blackmail of "publicofficials." Id at 164-65. 74 Id at 163-66. 75 Lindgren,84 ColumL Rev at 690 (citedin note2). Lindgrenlevels three other criti- cismsat Murphy'stheory. According to Lindgren:(1) Murphyerrs by assuming there is no marketfor embarrassing information about private individuals: spouses, employers, credit agencies,and potentialbusiness associates are all interestedin detailsabout nonpublic figures;(2) Murphy'sproposed exception for market price blackmail is unconvincingand morallyunacceptable; and (3) thereis muchembarrassing information about public officials theconcealment of which appears morally unproblematic. Id at 692-94. These latterthree objections do not cut as sharplyas Lindgrenbelieves. First, that thereis somemarket for embarrassing information about privateindividuals seems irrelevant.Murphy could respond that blackmail should be criminalso as notto increase substantiallythe existing incentives for privacy invasion. Second, intuitions about market priceblackmail are morediverse than Lindgren assumes. See SectionIII.B.2. Third,Mur- phyconcedes that some embarrassing information about public officials is notrelevant to the public,but suggeststhat here line-drawingdifficulties weigh in favorof the rule he crafts.Murphy, 63 Monistat 164 (citedin note2). Lindgrenprovides no compellingreason to disagreewith Murphy's judgment on thispoint.

This content downloaded from 130.91.146.35 on Wed, 8 Oct 2014 19:25:29 PM All use subject to JSTOR Terms and Conditions 1998] TakingMotives Seriously 819 tim's vulnerability.76Consider the example Murphyoffers of a paradigmatic"hard economic transaction": I know that your son, whomyou love more than anything else in the world,is dyingof leukemia. I also knowtwo other things:(1) that he is a greatbaseball fan who would love to have a baseball autographedby Babe Ruth to cheer him duringhis finaldays and (2) that $6,000 is all the moneyyou have in the world.Now I happen to own the last such baseball available in the world,and I will make you a proposition-namely,to sell youthis baseball for$6,000.77 That does soundhard. And let us agree that it is immoralas well. But Murphydoes not claim that the baseball ownerhas a moral obligationto give the baseball to the dyingboy. Presuma- bly the owneris morallyfree to sell it to the boy'sparents for a "fair"price. Additionally, there would seem to be circumstancesin whichother dispositions of the baseball would also be immoral because "unfair,"such as droppingit in the PacificOcean. This has several consequencesfor Murphy's theory of blackmail. First,if the baseball owneris morallyfree to sell his prop- ertyfor a fairprice, the blackmailershould be too,whether that price is set by the "market"or by anothermeans. That is, "the moralityof the criminallaw'78 would seem to forbidcriminaliza- tion ofwhat mightbe termed"fair-price blackmail." Second, if it mightbe immoralfor the baseball ownerto refuseto deal with the boy'sparents, it mightbe immoralfor someone in possession of embarrassinginformation to reveal it instead of becominga blackmailer. These last objectionsare telling. Murphyis most readily groupedamong those who wouldjustify criminalizing blackmail on consequentialgrounds, for he emphasizes the ways that blackmaillaws can encourageor discourageinvasions of privacy. And yet he explicitlypremises his theoryon both deontological and utilitarianconcerns. Ultimately, the mostrevealing aspect of his theorylies in its unexamineddeontological basis. That the blackmailproposal is "unfair"-letalone whyit is unfair-is far fromtransparently obvious. Murphy's "preliminary inquiry" rein-

76 In fairness,Murphy does not say that "takingan unfairadvantage of the victim's vulnerability"constitutes the whole of the immoralityof blackmailand hard economic transactions;he says onlythat it is an exampleof their immorality. Murphy, 63 Monistat 163 (citedin note2). But if thereare otherways in whichblackmail is "intrinsicallyim- moral,"id, Murphydoes not hint at whatthey may be. 77 Id at 156-57. 78 Id at 163.

This content downloaded from 130.91.146.35 on Wed, 8 Oct 2014 19:25:29 PM All use subject to JSTOR Terms and Conditions 820 The Universityof Chicago Law Review [65:795 forcesthe need to studycarefully the argumentsfor blackmail's intrinsicimmorality; blackmail's wrongfulness cannot be blithely assumed.

B. Blackmailas an InherentWrong: Of Unconditional Acts and ConditionalThreats As demonstrated,the consequentialisttheories suffer from variousanalytical faults. Beyond that, they fail even to approxi- mate commonintuitions regarding what's wrong with blackmail. It should be no surprise,therefore, that many othertheorists startfrom the assumption that blackmail is properlycriminal because it is a nonconsequentialmoral wrong. Their challenge is to explain why the threatis wrongin a way that eitherdistin- guishesthe threatfrom the unconditionalperformance of the act threatenedor explainswhy unconditional performance of the act threatenedshould also be criminal.This Sectionconsiders four verydifferent efforts to answerthis challenge.

1. Feinbergand Gorr:the wrongful act. In Harmless Wrongdoing,Professor Joel Feinberg advances a complexand nuancedargument that, at its core,argues that the moralityof blackmail is a functionof the moralityof the act that the blackmailerthreatens or offers.79Under this view, the keyis to determinewhether unconditional performance of the act threatenedor offeredby theblackmailer would be wrongful.If so, blackmailis likewisewrongful,80 and wrongfulto that same degree. Because blackmail,as a species of theft,is also harm- causing,it is consistentwith liberal principles to make it criminal. Correspondingly,ifneither the act threatenednor the act of- feredis wrongful,then the conditionalblackmail proposition is also notwrongful and maynot be made criminal. Two illustrationsare helpful.Because it is clearlywrongful notto reportthe identity of someone who has committeda felony, therewould be nothingpuzzling or problematicabout criminalizing the conditionaloffer not to reporta crime.(That society mightopt not to criminalizeunconditional performance of the

7 Feinberg,Harmless Wrongdoing at 240-58(cited in note2). Feinbergspeaks of acts "threatened"and "offered"in recognitionof the fact that blackmail is alwaysa doublecon- ditionalproposition of the form: if -x then y; and ifx then-y, where the first statement is a 'threat"and thesecond is an "offer." ' Althoughhe recognizesnumerous cases of"justified blackmail," id at 258-74,Fein- bergpresents them as piecemealexceptions, not as examplesshedding any lighton the natureof the puzzle.

This content downloaded from 130.91.146.35 on Wed, 8 Oct 2014 19:25:29 PM All use subject to JSTOR Terms and Conditions 1998] TakingMotives Seriously 821 underlyingwrongful act is irrelevant,according to Feinberg;it is enough that societycould reasonably decide to impose either criminalor civilsanctions.8") In contrast,Feinberg argues, a person who comesto learn of another'sadultery will oftenhave nei- thera moralduty to reveal that factnor a moralduty to remain silent.Consequently, society could notjustifiably impose a legal obligation,criminal or civil,upon personseither to discloseor not to disclosethe commissionof adultery.It follows,Feinberg concludes,that the correspondingblackmail proposal-call it "adulteryblackmail"-should be decriminalized.82 Giventhat adulteryblackmail might well be a modal case of the crime,Feinberg's conclusion is startling.Michael Gorr has triedto salvage Feinberg'sbasic approachby showingwhy it actually supportsthe morallyintuitive conclusion that adultery blackmail is properlycriminalized.83 Gorr begins by asserting, contraryto Feinberg,that everyact likelyto arise in situations involvingblackmail is eithermorally obligatory or morallypro- hibited.He agrees that societyshould not imposea legal dutyei- therto discloseor not to discloseadultery, but bases his conclusion on epistemicuncertainty: we maynot know whether the consequences of such a disclosurewould be morallybeneficial or wouldcause unnecessarymisery,84 and we may lack necessaryin- formation"about the priordistribution of moral rights and duties amongthe related parties."5But forthese considerations,Gorr argues, therewould be a morallyconclusive reason forimposing on third-partyobservers a legal requirementeither to reportthe occurrenceof adultery or (depending upon the circumstances) to refrainfrom reporting its occurrence.It follows that,in the absence of such concerns,there would also be a morallyconclusive reason forprohibiting the corresponding blackmailproposals since thesewould constitute attempts to

81 In a similarvein, Professor Arthur Goodhart years earlier sought, by distinguishing betweenmoral and immoralliberties, to downplaythe lawfulnessof the act a blackmailer threatensto perform.See ArthurL. Goodhart,Essays in Jurisprudenceand theCommon Law 175-89(Cambridge 1931). He concludedthat it is blackmailwhen the act threatened, thoughlawful, is immoral.Unfortunately, Goodhart's conception of immoral liberties appears muchlike Justice Stewart's conception of obscenity-although he mayhave known it whenhe saw it, he did not providethe toolsnecessary for others to drawthe difficult lines.See Jacobellisv Ohio,378 US 184, 197 (1964) (Stewartconcurring). 82 Feinberg,Harmless Wrongdoing at 246-49(cited in note2). 8' See MichaelGorr, Liberalism and theParadox ofBlackmail, 21 Phil & Pub Aff43 (1992). Id at 55. Id at 56, quotingFeinberg, Harmless Wrongdoing at 248 (citedin note2).

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acquire some of the adulterer'sassets eitherby offeringto concealwhat ought morally to be disclosedor by threatening to disclosewhat oughtmorally to be concealed.But, ex hy- pothesi,although such difficultiesdo serveto inhibitus from imposingduties with respect to the meredisclosure or nondisclosureof the adulterer's activities, they do notprevent us fromimposing duties not to engage in the blackmailingof suchpersons.86 The cruxof Gorr's claim appears to be that Feinbergerrs by focusingseriatim on each leg ofthe doubleconditional that con- stitutesa blackmailproposal. We mightnot knowwhich of the two acts-the one threatenedor the one offered-wouldbe immoral,but we do knowthat one ofthem must be. Consequently, adulteryblackmail's wrongfulness derives neither from the act threatenednor fromthe act offered(because either mightbe morallypermissible), but from the blackmailer's communicating a threatthat will commithim to eitherdivulging or remainingsilent,depending on his victim'sresponse. Adultery blackmail is wrongful,then, because the blackmailerknowingly takes an un- justifiablerisk of committing an immoralact. But this is surelywrong. Even acceptingfor the sake of ar- gumentGorr's dubious assumption that one of the optionsmust be-from a God's eye perspective-themorally obligatory course ofaction, the factthat the adulteryblackmailer commits herself, at the momentof her threat,to riskingan immoralact does not entailthat taking that risk is itselfan immoralact. Recall Gorr's moral-consequentialistclaim that the effectsof disclosureare morallyrelevant and thatthose effects may be difficultor impossibleto predict.It followsthat even the prospectivediscloser her- selfmight not know whether her moralduty is to discloseor not to disclose.And if we do not believethat an actorknows where her moralduty lies, it makes no sense to hold her morallyculpa- ble forrisking violation of that duty.Otherwise, any decision- makingstrategy one mightuse in a morallyuncertain situation- fromflipping a coin to delegatingthe choiceto a thirdparty- wouldbe morallyequivalent to blackmail.Because Gorrprovides no reasonfor believing this is so," his effortto salvage Feinberg's thesisfails.88

' Gorr,21 Phil& Pub Affat 56-57(cited in note83). 87 At least one theoristhas intimatedthat a coin toss is the morallypreferable deci- sionmakingstrategy for those forced to choosebetween harms in cases of moraluncer- tainty.See JohnM. Taurek,Should the NumbersCount?, 6 Phil & Pub Aff293, 303 (1977). ' Some threadsof Gorr's analysis do hinttoward a departurefrom Feinberg's belief

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2. Lindgrenand Fletcher:the wrongfulthreat. At the oppositepole fromFeinberg and Gorrstand Professors James Lindgrenand GeorgeFletcher. Whereas the formerpair contendthat the blackmailproposal is morallyequivalent to the act threatenedor offered,the latter argue-for vastly different reasons-that the keyto the blackmailpuzzle inheresentirely in the wrongfulnessof the threat. In a highlyinfluential 1984 article,Lindgren claimed to solve the blackmailpuzzle by observingthat the blackmailthreat differsfrom ordinary and legitimatethreats, such as a threat"to sell to someone else unless the buyer agrees to pay the price de- manded,"in that only the formerinvolves using forone's gain leveragethat properlybelongs to another(for example, the adulterer'sspouse).89 What makes the blackmailer'sconduct distinct fromlegitimate threats, and thereforewrongful, Lindgren argues, "is that he interposeshimself parasitically in an actual or potential disputein whichhe lacks a sufficientlydirect interest. What righthas he to make moneyby settlingother people's claims?"' At the heart of blackmail,then, is the triangularnature of the transaction,and particularlythis disjunctionbetween the blackmailer'spersonal benefitand the interestsof the thirdparties whose leverage he uses. In effect,the blackmailer attemptsto gain an advantage in returnfor sup- pressing someone else's actual or potential interest.The blackmaileris negotiatingfor his own gain with someone else's leverageor bargainingchips.9" Lindgren'sapproach has been subjectedto extensivecriti- cism that need not be repeated here in full.92While Lindgren's theoryenjoys claims to rough-thoughsurely not perfect93-de- that the unconditionalact and the conditionalthreat are morallyequivalent. If Gorr means to claim that an "attemptto acquire some of the adulterer'sassets" is itselfa wrongfulact thatmakes the blackmailproposal morally worse than the acts threatened and offered,his argumentapproximates Leo Katz's (discussedin SectionI.B.3) and suffers fromthe same failings. 89 Lindgren,84 ColumL Revat 701 (citedin note2). 90Id at 702. 91Id. 9 See, forexample, Leo Katz,Blackmail and OtherForms of Arm-Twisting, 141 U Pa L Rev 1567,1580-81 (1993); DeLong,141 U Pa L Rev at 1681-88(cited in note11); Walter Blockand David Gordon,Blackmail, Extortion and Free Speech:A Replyto Posner,Ep- stein,Nozick and Lindgren,19 LoyolaLA L Rev 37, 51-54(1985). 9 Consider,for example, a threatby Nazis to marchin Skokieunless the town'sresi- dentsbuy them off with a largecash payment.I assume thatthis is blackmail.If so, the Nazis are merelyleveraging their own constitutional rights, which they are threateningto exerciseas an instrumentof crueltytowards the town'smany Holocaust survivors. (It

This content downloaded from 130.91.146.35 on Wed, 8 Oct 2014 19:25:29 PM All use subject to JSTOR Terms and Conditions 824 The Universityof Chicago Law Review [65:795 scriptiveaccuracy, its normativeappeal is extremelyweak, as Lindgrenhimself has conceded,'because he providesno reason whyusing someoneelse's leveragefor individual gain shouldbe unlawful,let alone criminal.Furthermore, ifthe use ofsuch leverage or "chips"is wrongful,it is not clear whysquandering another'schips-by neitherthreatening nor makinga givendisclosure-is notlikewise wrongful and thusproperly criminal.95 WhereasLindgren's theory amounts to an insightfuldescrip- tionin futilesearch of a normativerationale, Fletcher relies on a novel and explicittheory of crimeand punishment.'The core concernof the criminallaw, he ventures,is to deterand negate conditionsof dominanceand subordination.97If so, there is no reasonto criminalizethe meredisclosure of embarrassinginformation.Once undertaken,the disclosureis over and done with. The blackmailthreat to disclosethe same informationis another story.Precisely because of"the prospect of repeated demands,"98 blackmailtends to createa continuingrelationship of dominance and submission.In consequence,blackmail "is not an anomalous crimebut rathera paradigmfor understandingboth criminal wrongdoingand punishment."99 Thoughprovocative, Fletcher's theory runs into a hostof dif- ficulties.Maybe the least troublingdifficulty concerns Fletcher's foundationaltheory of crimeand punishment.As Fletcherac- knowledges,not all crimes-homicideis an obviousexample appear to implicaterelationships of dominance and subordination.'" Second,even if negatingdominance is of fundamental,perhaps defining,importance to the criminallaw, Fletcher'stheory is underinclusive.In responseto the objection"that if the after- math of the alleged blackmailis the determinativefactor," the crimeshould be defined"as the secondact ofblackmail," Fletcher emphasizesthat "the relationshipof dominanceand subordina- tioncomes into being as a resultof the victim'smaking the first paymentor engagingin the firstcoerced act of submission.The

couldbe arguedthat the Nazis are reallyleveraging the informationalinterests of the public-withinor without Skokie-that might wish to viewthe march. But thisis a forced and artificialconstruction. The publiccould not compelthe Nazis to marchif they chose notto, nor could the Nazis be viewedas havingeven a weakmoral obligation to march.) See Lindgren,141 U Pa L Revat 1988(cited in note3). 9 See Isenbergh,141 U Pa L Revat 1917n 35 (citedin note13). GeorgeP. Fletcher,Blackmail: The Paradigmatic Crime, 141 U Pa L Rev 1617,1618 (1993). Id at 1629-35. Id at 1626. Id at 1617. '??Idat 1635.

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dominanceconsists in the knowledgethat the victimis now fair game forrepeated demands. Dominance and subordinationare states of anticipation."'01While this may be so, Fletcher'stheory remainsunderinclusive insofar as it cannotjustify criminalizing blackmailproposals that do not reasonablycreate apprehension of repeateddemands. Consider a judicial nomineewho has committed some minor indiscretionin his past-say he smoked marijuana, and inhaled-for which he is not ashamed but the disclosureof which he (rightly)fears might doom his nomination. Assume that Blackmailerapproaches Nominee on the eve of the confirmationvote and threatensto disclosehis priordrug use to the Senate unless Nomineepays $10,000. If he does not feardis- closure afterhis confirmation,Nominee may accede to the demand without initiating a submissive relationship. Under Fletcherestheory, Blackmailer's conduct should not be criminalized-a conclusioncontrary to prevailinglaw as well as, I would suspect,to commonmoral intuition. The thirdproblem with Fletcher's argument is the mostprofound.Properly, Fletcher does not aver that a relationshipof dominance and subordinationis sufficientto justifycriminal punishment.After all, innumerablerelationships-parent and child,employer and employee,teacher and student,etc. -xhibit aspects ofdominance and subordination,yet raise no suspicionin the eyes of the law. Indeed, some such relationships such as prisonguard and inmate-are productsof the criminallaw. The existenceof such a dynamiccannot be a sufficientcondition for criminalization.As one of Fletcher'scritics objected, "It must be the case, therefore,that the blackmailer'sactions are somehow intrinsicallywrong and unjustified."'02Fletcher appears to agree with this observation,but does not believe it has any critical force: Many wordsand expressionsat hand expresswhat is wrong withblackmail. In fact,too many thingsare wrongwith it. Blackmail representscoercion of the victim,exploitation of the victim'sweakness, and tradingunfairly in assets or chips that belongto others.It representsan undesirableand abu- sive formof private law enforcement.It leads to the waste of resourcesso far as blackmailersare inducedto collectinfor- mationthat they are willingto suppressfor a fee.'03

'' Id at 1637-38. 02Id at 1636-37(noting objection raised by Stephen Latham). 103Id.

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In short,Fletcher seems to suggest,of course blackmailis wrong and unjustified. But Fletcher'slitany of blackmairs evils cannotdo the work he expectsof it preciselybecause each (loaded) observationis so hotlycontested. What makes blackmail"coercive" or "exploita- tive"in a morallymeaningful sense? Why is tradingon another's chips "unfair"?What moral significanceshould we attributeto the fact,if true, that, on balance,blackmail wastes resources?As this Section endeavorsto demonstrate,these are challenging questions.Mere referenceto theoriesthat elicit,but do not con- vincinglyresolve, them cannotanswer what Fletcherseems to acknowledgeis thecrucial question for his theory:what about the blackmailer'sactions creates a wrongfultype of dominance?

3. Katz: thepunishment puzzle. A middleground between the poles definedby Feinbergand Gorron theone hand and Lindgrenand Fletcheron the otherhas been carvedout by Leo Katz in his imaginativecontribution to the blackmaildebate." In contrastto Feinbergand Gorr,Katz assertsthat blackmail is morallyworse than the act threatened. Unlike Lindgrenand Fletcher,Katz denies that the act threatened mightbe a moral right.Instead, he insists that the act a blackmailerleverages into his threatis (1) a moralwrong, and (2) a relativelyminor one at that.105He thus restatesthe blackmail puzzle as follows:'If revealingthe infidelitiesis only a minor immorality,then how can the takingof moneywhich the victim prefersto thatminor immorality be anythingmore than a minor immoralityitself?"1?` More generally,given that a blackmailproposal consistsof two analyticallydistinct elements-the blackmailer'sthreatened act and his attemptto securethe victim'sresources-whyshould it be assignedthe greatermoral and legal censurethat attaches to thelatter element alone? Katz respondsto thisquestion by introducing, and proposing to resolve,what he calls the "punishmentpuzzle," a conundrum he illustrateswith the followinghypothetical: Smithy the burglar breaks into Bartleby'shouse to commitlarceny. Inside, he demands that Bartlebydivulge the combinationto his safe and threatensto beat Bartlebysenseless if he does not comply.

" See Katz,141 U Pa L Rev 1567(cited in note92). "See, forexample, id at 1597(The blackmailerputs the victim to a choicebetween a theft(or some other criminal encroachment) and someother, minor wrong.... To be sure, thewrong must not be toominor.... Butit neednot-and thisis thecrucial point-be an immoralitythat comes anywhere close to being criminal."). "Id at 1598(emphasis altered).

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Bartlebydeclares that he cannotbear to part with the items in his safe (whichhave onlysentimental value) and regretsthat he will have to submitto the beating.Smithy batters Bartleby sav- agely and leaves. WhenLouie the burglarbreaks intoBartleby's house the nextnight, the identicalscenario transpires-with one exception.Just as Louie is about to strikeBartleby, he noticesa scrap of paper containing the safe's combination.Despite Bartleby'splea that he would ratherbe pummeledthan lose his goods,Louie opensthe safeand leaves withthe contents.'07 The law, of course,would punish Smithythe batterermore severelythan Louie the thief,and Katz approves.The criminal law, he argues,should not take accountof a victim'sidiosyncratic preferences.Whereas victims are concernedsolely with harm, the law is concernedwith the defendant'sculpability, of which harm is but a minoringredient.'08 Hence "thelesson ofthe punishment puzzle":"when the defendant has thevictim choose between either of twoimmoralities which he mustendure, the gravity of the defendant'swrongdoing is to bejudged by what he actuallydid (or soughtto achieve),not by what he threatenedto do."'09Smithy is punishedmore severelythan Louie because batteryis morally worse than theft.For the same reason, the law rightlyviews blackmailin lightof what the blackmailerintends to do-take moneyfrom one whodoes notwant to partwith it. Thus,to Katz, blackmail is a formof robbery-a graver offensethan the act threatened."' For all the witand insightof Katz's effort,it failsto solvethe blackmail puzzle. Katz simplyasserts that the act the blackmailerthreatens is immoral.However, as Lindgrenhas objected, "thismerely assumes away the paradox,which is in partthat often what the blackmailerthreatens to do is a moral right.""' While Lindgren'sclaim that the threatenedact is oftenmoral demandsqualification (because the act's moralstatus is farmore complexand contingentthan he recognizes"2),his general point stillholds: whether the act threatenedis a moralright or a moral wrong(or somethingelse) cannotbe simplyassumed withoutar- gument."13

07Id at 1582-83. 1 Id at 1590. '"Id at 1598. ""Id at 1599. "'Lindgren,141 U Pa L Revat 1977(cited in note3). "'See Section II. 113Even if Katz is correctthat the act threatenedis wrongful,his furthercontention that the threatis less wrongfulthan what the blackmailer"actually did (or soughtto achieve)"is unpersuasive.See textaccompanying notes 188-91. We need a moredeveloped

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4. Nozick:blackmail as coercion. All ofthe nonconsequentialistsare drivento explainwhy the blackmailthreat is a moralwrong. In addition,each ofthe theorists so far discussedconsiders the moral status of the acts a blackmailermight threaten. The finaltheory here addressed- whichderives from Professor Robert Nozick's seminal studyof coercion14-doesnot. This oversightis significant.Instead of solving the blackmail puzzle, the coercion thesis further complicatesthe moral relationship between the conditional threat (or offer)that constitutesblackmail and the unconditional performanceof the act threatened(or offered). Nozick'smost familiar remarks on blackmailappear in his 1974 classic,Anarchy, State, and Utopia,during a briefexplora- tion of the conceptof "productiveexchange."115 Most voluntary transactionsare "productive"in the sense that theymake both partiesbetter off. Nozick proposes that an exchangebetween A and B is unproductiveunder the followingcircumstances: (1) A is no betteroff as a resultof the transactionthan if he had nothing to do withB; and (2) ifB's part ofthe transactionconsists solely ofabstaining from performing some action, x, B did notpropose to performx solelyto sell A his abstention.116Blackmail, he notes,is one exampleof an unproductiveexchange."7 If thisdiscussion is to be read as an argumentfor blackmail's criminalization,two problemsarise. First,it presentsan inaccu- rate descriptionof blackmail:the victimmay preferthat the blackmailerexists. Imagine that Adultererdumps Mistress, who then decidesto reveal theiraffair to Wife.However, an adver- tisementfor Blackmail, Inc. causes her to reconsider.Although she wouldlike to hurther ex-lover,a possiblewindfall is also attractive.She sells herlove letters to theprofessionals who in turn sell themto Adulterer. Adulterer's acceptance of the blackmailof-

theorythan Katz providesto understandwhy the blackmailer's attempt to securehis victim'sresources is necessarilymore wrongful than the act threatened. 'Althoughtraced to Nozick,this basic approachhas beenelaborated by others. See, forexample, Altman, 141 U Pa L Revat 1640-51(cited in note43). 15Nozick, Anarchy, State, and Utopia at 84-87 (cited in note 2). "'Id at 84-85.Gorr articulates Nozick's definition in similarterms. See MichaelGorr, Nozick's ArgumentAgainst Blackmail, 58 Personalist 187, 188 (1977). The principal differencebetween Gorr's definition and thatpresented in thetext is thatGorr does not pre- sentthe secondcriterion as a conditional.Under Gorr's definition, it is a sine qua nonof an unproductiveexchange that one ofthe partiessells forbearancefrom an act; in other words,if forbearanceis notpart of the transaction,the transactioncannot be unproductive.Nozick does not address this point explicitly. As note127 indicates,however, I think Gorr'sis notthe better view. 1'7Nozick,Anarchy, State, and Utopiaat 85-86(cited in note2).

This content downloaded from 130.91.146.35 on Wed, 8 Oct 2014 19:25:29 PM All use subject to JSTOR Terms and Conditions 1998] TakingMotives Seriously 829 feris arguablyconclusive evidence that he is betteroff because of the blackmailer.'18This blackmailtransaction is not unproductive. Second, assuming that the blackmail deal is unproductive, the questionremains why it shouldbe illegal,let alone criminal. We expectconsequentialists to disfavorsuch transactions.But, as we have seen, not even the law and economicstheorists have crediblyjustified blackmail's criminalization. How Nozick could findsuch a justification,compatible with his libertarianism,is hard to fathom.As Gorrhas argued,"the reasons whichNozick offersfor prohibiting 'unproductive' exchanges could not plausibly be made to coherewith the principlesthat are generallytaken to underliea libertariansociety."119 This is a powerfulobjection. Indeed, it is so forcefulas to in- vite us to questionwhether Nozick is in factarguing that unproductiveexchanges are ipso factocriminalizable. Unfortunately, Nozickis notentirely clear on this point.Careful attention to the structureof his argument,however, suggests that he does not mean to argue that the unproductivenessof an exchangeis suffl- cientfor the state to makeit criminal. The productiveexchange test serves a very differentfunc- tion.Assume an actionwould violate the naturalrights of others or, in Nozick's terms,would cross a moral boundary.May the state prohibitthe action, Nozick asks, or may it only require those who undertakeit to compensateindividuals whose rights are therebyviolated?120 If the latter,how does one set the proper compensationlevel? Ideally, the state shouldreplicate the market pricefor the boundarycrossing-that is, the priceupon whichthe personsthreatened by the conductand the personwho wishesto

""Nozickresponds to this problemas follows:"To state the pointexactly in orderto excludesuch complications is notworth the effortit wouldrequire." Id at 85 n * (citedin note 2). PerhapsNozick means to agree that the blackmailagreement in such circum- stancesis not "unproductive."The furtherimplication that such instancesshould be law- fulwould make thisa profoundconcession, deeply inconsistent with prevailing law. More probably,Nozick means that he couldrecraft his testfor unproductive exchanges so as to make the deal betweenAdulterer and Blackmail,Inc. unproductiveby definition.But the difficultyinjustifying blackmail's criminalization would be exacerbated. "9See Gorr,58 Personalistat 187 (citedin note 116). See also Murphy,63 Monistat 158 (citedin note2) (observingthat Nozick argues that"blackmail should be prohibited because it is an unproductiveeconomic exchange" and criticizingNozick for failing to provide any argumentfor the proposition"that unproductive economic exchanges are immoral"). ' Nozick,Anarchy, State, and Utopia at 57 (citedin note 2). In the vocabularyfa- mouslyintroduced by Professors Guido Calabresi and A. Douglas Melamed,may the state employproperty or liabilityrules for the protection of rights? See GuidoCalabresi and A. Douglas Melamed,Property Rules, Liability Rules, and Inalienability:One Viewof the Ca- thedral,85 Harv L Rev 1089(1972).

This content downloaded from 130.91.146.35 on Wed, 8 Oct 2014 19:25:29 PM All use subject to JSTOR Terms and Conditions 830 The Universityof Chicago Law Review [65:795 engagein it wouldagree in a voluntarytransaction. However, the likelyexistence of a transactionalsurplus (where the minimum priceacceptable to the selleris less than the maximumprice ac- ceptableto the buyer)makes it impossibleto ascertainthe hypo- theticalmarket price. And it wouldbe unfairto allow the boundary crosserto appropriateall the benefitsof the exchangeby compensatingthe "seller" of the rightin an amount(less thanthe marketprice) necessaryto keep him on the same indifference curve.The impossibilityof identifyinga faircompensation price withoutex antebargaining between the parties is, forNozick, one argumentfor allowing the state to prohibitconduct that would cause or riska boundarycrossing.'2' However, Nozick continues, when the state does prohibitconduct that risks crossingthe moral boundaryof another,it should usually compensatethe partywhose liberty is thusinfringed.'22 Again the questionarises ofhow much to pay.Just enough, Nozick answers, to keep himon the same indifferencecurve he wouldoccupy were he not disad- vantagedby the prohibition.'23In this case, thatis, the state may appropriatethe entiretransactional surplus. Why? Because the exchangeis "unproductive." For presentpurposes, whether the foregoingargument is co- gentis unimportant.What is importantis thatthe productiveex- changetest is onlya tool fordetermining how muchcompensa- tionis due an individualwhose risky conduct the state prohibits. Whetherthe state is justifiedin prohibitingparticular conduct is a whollyseparate question.'24 In short,not only is the productive exchangetest an implausiblebasis formaking blackmail criminal, but Nozickshould no longerbe read to contendotherwise. This is not to claim,though, that he has nothingto say about blackmail'scriminalization. But we must look elsewhereto find it. The definitionof an unproductiveexchange Nozick offers in Anarchy,State, and Utopiaclosely tracks the testof coercion that he offeredsome years earlierwhen he argued (roughly)that a proposalis coerciveif it is properlydeemed a "threat"rather than an "offer."'25A proposal is a threatif it makesthe recipient worse

'21Nozick, Anarchy, State, and Utopiaat 63-65(cited in note2). '2Id at 78-85. ">Id at 86-87.For preliminaryremarks regarding Nozick's notion of "disadvantage," see id at 82-83. 24See id at 67 n *. ' RobertNozick, Coercion, in SidneyMorgenbesser, Patrick Suppes, and Morton White,eds, Philosophy,Science, and Method:Essays in Honorof Ernest Nagel 440, 447 (St. Martin's1969).

This content downloaded from 130.91.146.35 on Wed, 8 Oct 2014 19:25:29 PM All use subject to JSTOR Terms and Conditions 1998] TakingMotives Seriously 831 offrelative to his expectedbaseline, where "[t]he term 'expected' is meant to shiftbetween or straddlepredicted and morallyrequired.""6Insofar as we are seekinga justificationfor criminalizingblackmail, this approachseems morepromising.'27 Although the relationshipbetween freedom and coercionmay not be easy to articulate with precision,'28the two conceptsplainly stand in roughopposition: generally, one who is coercedis at least to that extentunfree. Therefore, for one who values human freedom(as Nozickdoes), coercion is primafacie wrongful.'29 So ifa blackmail proposalis coercive,there is goodreason to believethat it should be made illegal.'30 On inspection,though, Nozick's "coercion"thesis proves no more satisfactorythan the "unproductiveexchange" rationale at solving blackmail'sparadox. First, it is unclear whethermost

126Id. " In mostcases, the testsfor coercion and unproductiveexchange come out the same. That is, a consummatedexchange is "unproductive"if and only if the proposal that launchedthe exchangewas a "threat."Such is thecase, forexample, with the illustration Nozickoffers to elucidatethe second criterion of an unproductiveexchange: Ifyour next-door neighbor plans to erecta certainstructure on his land,which he has a rightto do,you might be betteroff if he didn'texist at all.... Yet purchasinghis abstentionfrom proceeding with his plans will be a productiveexchange. Suppose, however,that the neighborhas no desireto erectthe structureon the land; he for- mulateshis plan and informsyou of it solelyin orderto sell youhis abstentionfrom it. Such an exchangewould not be a productiveone; it merelygives you relieffrom somethingthat would not threaten if not for the possibilityof an exchangeto get relieffrom it. Nozick,Anarchy, State, and Utopiaat 84-85 (citedin note 2). As Nozick'slast sentence suggests,the proposalleading up to thehypothesized unproductive exchange is a threat- because it is coercive-notan offer. But the equivalencebetween coercion and unproductiveexchanges does not always hold.Imagine that your coworker announces that his daughteris sellingGirl Scout cookies and thathe willbe takingorders. You subscribefor four boxes of Thin Mints at $2.50 perbox. Although you'd prefer the $10 to thecookies, you estimate that to declinethe offer mightcause you somereputational harm, and youvalue the cookiesand the preservation ofyour reputation more highly than $10 plus a possibleslight diminution of your office status.This is plainlyan unproductiveexchange-you would have preferredthat your co- workerhad nevermentioned his daughterand the cookies.But the offerto sell you Girl Scout cookiesis not a threat(because it doesn'tput you worseoff than your expected or morallydeserved baselines). See, forexample, Nozick, Coercion at 440 (citedin note125). See Altman,141 U Pa L Rev at 1641(cited in note43). '" Notethat Nozick's shift from viewing blackmail as unproductive(bad consequences) to viewingit as coercive(wrongful) justifies placing him in SectionI.B ratherthan with the consequentialistsin I.A. Not surprisingly,Nozick's excursus on "unproductiveexchanges"has caused other commentatorsdifficulty in characterizinghis positionon blackmail.See Gordon,141 U Pa L Rev at 1758,1772 n 137 (citedin note 1) (wondering whetherNozick's blackmail argument is deontologicalor consequentialist);Kathleen M. Sullivan, UnconstitutionalConditions, 102 Harv L Rev 1413, 1447 n 140, 1449 n 145 (1989) (notingboth that Nozick has "usedutilitarian grounds to defendthe ban on blackmail"and thathis theory"reflects conceptions of negative liberty").

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blackmailproposals count as threatsunder Nozick'sdefimntion. As noted,the "expectedbaseline" upon which Nozick's theory depends is a functionof empiricaland moral components.Nozick proposesthat the normaland morallyrequired course of events usually coincideand, further,that when theydo not,the latter ordinarilytakes precedenceover the former."3'This being the case, it becomesessential to knowwhether the "victim"of the gardenvariety blackmail proposal has a moralright to nondisclo- sure.Rights and dutiesbeing correlative,132 the question,in other words,is whetherthe blackmailer has a moralduty to remainsilent.'33As we have seen,this is a trickyquestion. Nozick's analysis providesno answer. Worse,no simplecategorical answer can resolvethe puzzle. If the answeris no-the blackmailerdoes nothave a moralduty to remain silent-then blackmail is not coerciveand Nozick leaves us no basis forprohibiting it. If the answeris yes,then, if Nozickhas succeededin justifyingmaking blackmail criminal, he has done so onlyby advancingeffectively the same solutionas has Feinberg:if a blackmailproposal is coerciveonly because the act "threatened"is wrongful,then the proprietyof criminalizing blackmailturns entirely on the moralityof the act threatened. And thisresolution of the puzzle raises the questionwhy unconditionalperformance of the acts leveragedinto blackmail proposals shouldremain lawful. After all, otherinstances of criminal co- ercionrepresent threats to performillegal acts; just as the law prohibitsthe gunmanfrom coercing his victim("your money or yourlife"), so too does it forbidhis shootingthe victimwithout even havingvoiced a threat.In short,if Nozick'sproposed solution (blackmailis criminalbecause it is coercive)is correct,it merelyreformulates the puzzle-why shouldit be a legal rightto performwhat it is illegalto threaten?-withoutresolving it.

C. Summary The failureof the theoriesassessed in SectionL.A suggests thatwe cannotexplain and justifyblackmail's criminalization by

1'Nozick, Coercion at 449-51(cited in note125). '"Ordinarily,at least.For an arguedqualification (that does notundermine the point in thebody), see DavidLyons, The Correlativity ofRights and Duties,4 Nous45 (1970). '"As KathleenSullivan has concluded,'coercion . . . is inevitablynormative, not merelydescriptive, empirical, or psychological.It necessarilyembodies a conclusionabout thewrongfulness of a proposal,not merely the degreeof constraint it imposeson choice." Sullivan,102 Harv L Rev at 1443(cited in note130). See also id at 1448-50& n 142 (discussingthe normative judgments underlying Nozick's and others'definitions of the base- linefrom which coercive proposals are measured).

This content downloaded from 130.91.146.35 on Wed, 8 Oct 2014 19:25:29 PM All use subject to JSTOR Terms and Conditions 1998] TakingMotives Seriously 833 attendingonly to its supposed social consequences.Any satisfac- toryresolution of the blackmailpuzzle mustacknowledge and explain the moralwrongfulness of the blackmailthreat. The failure of the theoriesassessed in Section I.B demonstrates:first, that thereis a moral differencebetween blackmail and the unconditional performanceof the act threatenedor offered(that is, we cannotestablish the moralcharacter of a blackmailproposal simply by firstdetermining the moral status of the act upon which the blackmailis predicated);and second,that one cannotexplain thismoral difference by treatingthe conditionalthreat or offeras a morally aggravatingfactor. One should thus question the dominantassumption of this lattergroup of theories-that we al- readyknow that the conditionalblackmail proposition is morally worsethan unconditionalperformance of the act threatened,and thatit remainsonly to explainwhy. Section II is animatedby the suspicionthat blackmail remains puzzling because we have yetto understandhow the threatand the act differ.

II. A PROPOSED SOLUTION Those inclinedtoward two-part categorization could propose numerousways to divide the universeof blackmailtheories. As we have seen, the well-rehearseddistinction between deontological and consequentialistmoral theory suggests a divisionbetween those scholarswho urge that blackmailis criminalbecause it is wrongin itselfand those who focuson the its allegedlyadverse social consequences.Alternatively, it couldbe revealingto distinguish contributionsbased on the particularquestion they appear devisedto answer.Most theorists view the blackmailpuzzle prin- cipallyas a challengeto understandwhy this conditionalthreat to performa legal act is differentfrom all otherthreats to per- formlegal acts; others propose to explain how this voluntary transactiondiffers from other voluntary transactions. Yet a third possible classificationwould track the familiardistinction be- tweenbottom-up and top-downmodes ofanalysis. Whereas some writersattempt first to understandblackmail as a social phe- nomenonand onlythen to explainwhy some purportedly peculiar featureof the practicemakes it a fitsubject for the criminallaw, othersstart with an explicittheoretical model of the criminallaw and thenseek to locateblackmail within the model. This Sectionproceeds in the lattermode. Section II.A enu- merates three independentconditions that mightconstitute at least prima facie justificationfor criminalizingparticular conduct. Section II.B demonstratesthat one of these three criteria justifies criminalizing"central case" blackmail-defined as a

This content downloaded from 130.91.146.35 on Wed, 8 Oct 2014 19:25:29 PM All use subject to JSTOR Terms and Conditions 834 The Universityof Chicago Law Review [65:795 blackmailer'sthreat to discloseembarrassing information about his victimunless the victimpays him a specifiedsum. This dem- onstrationconstitutes what I have called the evidentiarytheory. Section I.C summarizesthe evidentiarytheory and answers blackmail'stwo principal puzzles. It explainswhy blackmail is an exceptionto twogeneral rules: that it shouldbe legal to threaten what it is legal to do, and thatvoluntary transactions should be lawful.

A. Criteriaof Criminalization If we are to determine,in otherthan ad hocfashion, whether it is justifiableto make blackmailcriminal, we will firstneed standards or rules detailing when society may legitimately threatencriminal punishment. This Sectionsets forththree criteria that independentlymight explain and justifywhen society maycriminalize given conduct. It thenelaborates upon the one- the notionthat a liberalsociety may criminalizemorally blameworthy,harm-causing conduct-that provides the strongestbasis formaking blackmail criminal.

1. Generaljustifying aims. If a criterionof criminalization is notto be freestandingand arbitrary,it shouldrest on an understandingof what H.L.A. Hart termedthe "generaljustifying aim" of the institutionof punishment.'34By commonconsensus, there are twojustifying aims.'35 A consequentialisttheory justifies punishment as a means to reduce sociallyundesirable behavior through such mechanismsas deterrence,incapacitation, and rehabilitation.'36A retributivist theory,in contrast,justifies punishment on deontologicalgrounds by the inherentrightness of inflicting retribution upon a wrong- doer.'37A pointcommonly overlooked is that a consequentialist

' H.L.A.Hart, Punishment and Responsibility8-11 (Oxford 1968). '"See, forexample, id at 8-13;Kent Greenawalt, Punishment, in SanfordH. Kadish, ed, 4 Encyclopediaof Crimeand Justice1336, 1336-38(Macmillan 1983); GeorgeP. Fletcher,Rethinking Criminal Law 414-20(Little, Brown 1978); HerbertL. Packer,The Limitsof the CriminalSanction 35-61 (Stanford1968); JohnRawls, Two Conceptsof Rules,64 PhilRev 3, 4-5(1955). '" Mostcontemporary theorists espouse a consequentialistjustifying aim. Fora classic elaborationand defense,see Packer,Limits of the CriminalSanction at 39-61(cited in note135). "'The mostprominent contemporary advocate of this positionis ProfessorMichael Moore.See, forexample, Michael S. Moore,The Moral Worth of Retribution, in Ferdinand Schoeman,ed, Responsibility,Character, and theEmotions (Cambridge 1987). Unfortu- nately,the common formulation of retributivism as the theorythat "[w]e are justifiedin punishingbecause and onlybecause offenders deserve it," id at 181, speaks onlyto the

This content downloaded from 130.91.146.35 on Wed, 8 Oct 2014 19:25:29 PM All use subject to JSTOR Terms and Conditions 1998] TakingMotives Seriously 835 justifyingaim can itselfbe the productof eitherof two radically opposed ethical theories,depending upon what contentis as- cribedto the notionof "sociallyundesirable behavior." If the be- haviorsought to be reducedis deemed undesirablebecause it is thoughtto effecta net diminutionin social welfare,then the jus- tificationis, at root,utilitarian. But it is a mistaketo assert that the nonretributivejustifying aim of punishmentis inherently "utilitarianin nature."'38One who justifies the institutionof criminalpunishment on consequentialistrather than retributive groundsmight be seekingto preventacts believedto be wrongin themselves.'39In this way,one could,as a matterof political theory,consistently defend punishment for consequentialist reasons as servinga deontologicmoral theory.'40

2. Threecriteria of criminalization. The foregoingbrief review suggeststhree principalfactors that,depending upon the particularjustifying aim ofpunishment adopted, would be especially relevant in determiningwhether

justificationfor imposing punishment in anygiven case, notto thejustification for the institutionof punishment. See also id at 181 n 1 (adoptinga conceptionof 'moral culpabil- ity"that 'does notpresuppose that the act doneis morallybad, onlythat it is legallypro- hibited").As a justificationfor creating a systemof criminallaws backed by threatof punishment,the notionthat persons who break those laws deserveto be punishedwould be circular.Nonetheless, belief in the intrinsicmoral worth-or perhaps duty, see id at 182-of punishingindividuals for "morally bad" actionsplainly implies a retributivistjus- tificationfor criminalization as well as forpunishment. Indeed, Moore himself conceives of retributivismas botha generaljustifying aim ofcriminal punishment and a justification forits impositionin a givencase. See, forexample, Michael S. Moore,Justifying Retribu- tivism,27 IsraelL Rev 15, 16-17(1993). "3See,for example, Richard J. Bonnie,et al, eds, CriminalLaw 2 (Foundation1997) (describingthe view that "punishment is threatenedand imposedin orderto achievebene- ficialsocial consequences" as "utilitarianin nature"). 13 Thiswas St. ThomasAquinas's justification for the institution of human, as distinct fromdivine, law. Sincesome persons are foundto be depraved,and proneto vice,and noteasily amenable to words,it was necessaryfor such to be restrainedfrom evil by force and fear,in orderthat, at least, theymight desist from evil-doing, and leave othersin peace, and that theythem- selves,by being habituated in thisway, might be broughtto do willinglywhat hith- ertothey did fromfear, and thusbecome virtuous. Now thiskind of training, which compelsthrough fear of punishment, is thediscipline of laws. St. ThomasAquinas, Summa TheologicaI-II, Q 95, Art1. Therefore,insofar as we speak of onlytwo generaljustifying aims, it seems preferableto termthem "consequentialist" and "retributive,"see Fletcher,Rethinking Criminal Law at 415 (citedin note135), saving theutilitarian label for one ofthe two broad species of consequentialist theories. 140This positionmight be internallyinconsistent if one holds a strongKantian belief that thereis no moralvalue in performingthe rightaction for fear of punishment.See ImmanuelKant, Grounding for the Metaphysics of Morals 399-401(Hackett 1993) (origi- nallypublished in 1785).But thisis nota necessaryview.

This content downloaded from 130.91.146.35 on Wed, 8 Oct 2014 19:25:29 PM All use subject to JSTOR Terms and Conditions 836 The Universityof Chicago Law Review [65:795 particularconduct141 should be made criminal:(1) whetherthe conductis utilityreducing; (2) whetherthe conduct is wrongfulin itself;and (3) whethercommission of the conductis morally blameworthy.This is notto say,though, that the presenceof any one ofthe thesefactors alone permitsa liberalsociety to impose crminalsanctions. As we have seen, a consistentutilitarian the- orymust accountfor the costs of tryingto prohibitundesirable conduct.Also, a rule that wouldauthorize criminal punishment forany wrongful or blameworthyconduct would prove unbearably intrusive.It seemsnecessary, therefore, to qualifythe secondand thirdfactors with some formof harmprinciple in orderto limit theirreach. These qualificationslead to threeindependent prima facie criteriafor when a liberalsociety may employ the criminallaw- criteriathat should appear as fairlyobvious (if not logically necessary) derivationsfrom the standard proposedjustifying aims. Conductmay be made criminalif: (1) it is likelyin theaggregate to yieldnet adversesocial consequences(taking into account the costsimposed by the criminal ban itself); (2) it (a) tendsto cause or threatenidentifiable harm and (b) is morallywrongful in itself;or (3) it tendsboth (a) to cause or threatenidentifiable harm, and (b) to be undertakenby a morallyblameworthy actor. These threecriteria are not identical.Although much conduct (considerthe mala in se offensesof the commonlaw) will satisfyall three,each justifiessome use ofthe criminallaw that the otherscannot. The practicaldifferences between the second and thirdcriteria, on the one hand, and the firston the other, shouldbe apparent:for purposes of the firstcriterion, it is irrelevant whetherthe conductthat is a candidatefor being made criminalis wrongfulon deontologicgrounds or is ordinarily blameworthyin the absence of a criminalprohibition.'42 And al-

"'"Conduct" here and throughoutshould be understoodbroadly to connoteany de- scribablecombination of action, attendant circumstances, results, and mentalstates. '42Afterconduct is criminalizedin accordancewith condition (1), commissionof the proscribedconduct is ordinarilymorally blameworthy insofar as it reflectsthe knowing violationof a valid criminallaw. See, forexample, Henry M. Hart,Jr., The Aimsof the CriminalLaw, 23 Law & ContempProb 401, 416 (1958) ("[I]fthe actorknowingly goes counterto a valid legislativedetermination that the riskhe is takingis excessive,even thoughhe himselfdoes notbelieve it to be, thereis an independentbasis formoral con- demnationin thisdeliberate defiance of law."). For this reason, a consequentialistgeneral justifyingaim can coexistwith the retributiveprinciple of distribution,which requires that punishmentonly be metedout to the morallyguilty. See H.L.A. Hart,Punishment and Responsibilityat 9 (citedin note134). See also Rawls,64 Phil Rev at 4-13 (citedin note 135); S.I. Benn, An Approach to theProblems of Punishment, 33 Phil 325 (1958).

This content downloaded from 130.91.146.35 on Wed, 8 Oct 2014 19:25:29 PM All use subject to JSTOR Terms and Conditions 1998] TakingMotives Seriously 837 thoughthe secondand thirdcriteria demand some harm, neither requiresthat the expectedharm outweighexpected benefits. The distinctionbetween the second and third criteriaturns on the claimthat an actoris notblameworthy for engaging in a wrongful actionif, for example, he lacks informationcritical to determinng its wrongfulnessor acts out of a bona fide and reasonablejudg- ment (albeit one a majorityof societydeems mistaken)that his act is morallyjustified. For example,a legislatorwho concludes that euthanasia is morallywrong but also believesthat, in practice,the euthanizerrarely acts in a morallyblameworthy fashion could vote to criminalizethe conductin accord with the second criterionbut notthe third.Conversely, an actorwho causes harm forreasons that are notjustified is deservingof blame regardless ofwhether the act is deemedwrongful in itself.To use a familiar example,if someonekills an assailant in a situationwhere the use ofdeadly force is justifiedbecause necessaryfor self-defense, but the killeris unawareof the necessity,the killingis justifiably made criminalunder the thirdcriterion but notthe second.'43

3. The thirdcriterion: defining terms. Provisionallyaccepting the foregoingcriteria invites the question whetherblackmail (howeverdefined) satisfies any of them.My criticismsof the theoriescanvassed in SectionI suggest that blackmailis not likelyto satisfyeither the firstor the second. It is unclear,once one takes accountof the costsimposed by the criminal ban itself,whether any substantial categoryof blackmail yields net adverse social consequences;and it seems extremelylikely that a large subset of presentlycriminalized conduct-adventitiousblackmail-does not. Also, effortsto explain whythe blackmailact is wrongfulappear unable to answer the questionsof whetherand whythe act threatenedis likewise wrongful.Consequently, this Section endeavors to show that blackmailis properlycriminal because it satisfiesthe thirdcriterion.A successfuldemonstration will bothexplain why blackmail is criminal and amount to a conditionaljustification-condi- tioned,that is, on the validityof the claim that it is permissible forthe state to criminalizeconduct because it is morallyblame- worthyand harm-causing.'"Because the argumentto followwill

'For an interestingdebate over this issue, comparePaul H. Robinson,A Theoryof Justification:Societal Harm as a Prerequisitefor Criminal Liability, 23 UCLA L Rev 266 (1975), withGeorge P. Fletcher,The RightDeed forthe WrongReason: A Replyto Mr. Robinson,23 UCLA L Rev293 (1975). 4"Because this solutionto the blackmailpuzzle will rest on the thirdcriterion, we need not at this timeexpressly affirm either a retributivistor consequentialistgeneral

This content downloaded from 130.91.146.35 on Wed, 8 Oct 2014 19:25:29 PM All use subject to JSTOR Terms and Conditions 838 The Universityof Chicago Law Review [65:795 necessarilydepend on the particularcontent ascribed to "harm" and "moralblameworthiness," some explicationof these notori- ouslyambiguous terms is in order. In legal, as in common,parlance, "harm" can connoteinjury to an almost limitlessvariety of interests.A cursoryreview of existingcrimes indicates that the law does recognizeas "harm" injuriesto, amongother things, bodily integrity (homicide, rape, battery),psychic or emotionalwell-being (assault, stalking,hate speech,child pornography), property interests (theft, vandalism, trespass),public institutionsand processes(treason, bribery of publicofficials, insider trading), and publicmorals (prostitution, obscenity,drug use, gambling).The importantquestion, however, is normative:what types of harms may a liberalsociety rely on to justifylimiting individual liberty?'45 This is an extraordinarily challengingquestion, raising issues ofkind and degreethat have bedeviledsome of our mostprominent theorists of the criminal law.'46If a thoroughlydeveloped, foundational answer to this questionwere necessary in orderto resolvethe blackmailpuzzle, we wouldbe in fora longdigression indeed. Happily, such an ac- countis not needed.As we will see, mycontention that blackmail satisfiesthe harmrequirement fits well withinthe existinglegal landscape and is unlikely,I think,to strainour intuitions.For justifyingaim. The retributivistfoundations of the thirdcriterion should be self-evident. But I assume that(with one caveat notedbelow) the thirdcriterion could also be com- fortablygrounded in a sufficientlyexpansive consequentialism-one that focusesnot solelyon the consequencesof the conduct at issue,but also on,for example, the potential harmto the"social fabric' caused by failure to punish those who engage in suchconduct, and the concretefuture harms that might be avertedby incapacitatingand speciallyde- terringone who has exhibiteda potentialpredisposition to cause harm.Indeed, reasons suchas thesehave fueledlong-running suspicion that most self-proclaimed justifying-aim retributivistsare reallydisguised consequentialists. See, forexample, Gregg v Georgia, 428 US 153,23741 (1976) (Marshalldissenting); H.L.A. Hart,Punishment and Responsi- bilityat 9 (citedin note134). For an extendedrecent argument that society can bestserve utilitarianaims by structuringall punishmentdecisions in accordwith the community's moraljudgments of desert, see Paul H. Robinsonand JohnM. Darley,The Utilityof Des- ert,91 Nw U L Rev453 (1997). The caveat:insofar as the thirdcriterion rests on retributivistpremises, we mustbe concernedwith actual moral blameworthiness; insofar as it restson a consequentialistin- terestin constructinga shared moral universe, it is theperception of moral blameworthinessthat matters. 146 See Cass R. Sunstein,What's Standing After Lujan? Of Citizen Suits, "Injuries,' and ArticleIII, 91 MichL Rev 163, 188-91(1992) (criticizingthe notion that the shifting focus in standingjurisprudence from "legal injury' to "injuryin fact"effected a changefrom a questionof law to a questionof fact, and observingthat "the real questionis whatharms thatpeople perceive as suchought to be judiciallycognizable"). 146Themost thorough' exploration of this question is foundin ProfessorFeinberg's distinguishedfour volume work collectivelytitled The Moral Limits of the Criminal Law. See Joel Feinberg,Harm to Others (Oxford 1984); Offenseto Others (Oxford 1985); Harm to Self(Oxford 1986); Harmless Wrongdoing (Oxford 1988).

This content downloaded from 130.91.146.35 on Wed, 8 Oct 2014 19:25:29 PM All use subject to JSTOR Terms and Conditions 1998] TakingMotives Seriously 839 presentpurposes, then, it should be sufficientto observe that whethera claimed injurycounts as a "harm"with which the criminallaw will be concerned"is a productof legal conventions and nothingelse."147 "Moral blameworthiness"is also a nebulous concept.Al- thoughall the factorsof which it is a functioncannot be fullyelu- cidated in this space, a few guidepostscan be marked. In the easiest case, an individual's conduct is morally blameworthy whenhis objectiveis to inflictharm-such as whenhe acts out of malice (in the lay sense) or spite. But this does not exhaust the subject.The average thief,after all, steals notin orderto impose a loss on his victim,but forthe purposeof obtaininga gain for himself.Yet this conduct,too, appears blameworthy-evenab- sent a law prohibitingit.148 The categoryof "morallyblameworthy"conduct, therefore, must be broad enoughto includethe con- scious willingnessto cause harm withoutadequate moraljustification,where the amountand qualityof justification required is commensuratewith the magnitudeof harm caused. Similarly,it should include the consciouswillingness to risk harm to others withoutadequate moraljustification. (Consider drag racers on publicroads.) Lastly,an actor is morallyblameworthy when his conductreflects an unjustifiablefailure to appreciatethe riskshe creates.'49Putting aside questions concerningthe moral blameworthinessof negligentharm-causing conduct (which the blackmail puzzle does not implicate),we can articulatemoral blame- worthinessin termsof the actor'smotivations for acting. Thus (as a firstand roughpass), an actor has "morallybad motives"-50 and is thereforemorally blameworthy"5'-when he acts withthe knowledgethat his conductwill cause, threaten,or risk harm to others,unless: (1) he actuallybelieves that his actionwill produce

147Sunstein, 91 MichL Rev at 190 (citedin note145) (discussingthe "actual injury" re- quirementin standingdoctrine). "8Seenote 142. 149 See ModelPenal Code ? 2.02 (ALI 1962) (definingculpability levels). " In ethics,"wrongful" is sometimeslimited to acts,whereas 'bad' is appliedto an actor'smotives in perforningan act. See, forexample, William K Frankena,Ethics 8-9 (Prentice-Hall1963); Jerome Hall, GeneralPrinciples of Criminal Law 141 (Bobbs-Merrill 1947). Followingthis usage, this Article speaks generallyof "wrongful acts" and "bad motives."A "bad act"is one thatis badlymotivated, whether or notit is wrongful. "6'Arguably,an actormay have blameworthymotives without being morally blame- worthyhimself, if he lacks moralagency. Because the law presupposesthat peopleare moralagents, this qualificationdoes not bear upon whetherto make particularconduct criminal.For an argumentthat it shouldbe affordedgreater relevance at the punishment stage thanpresent law allows,see PeterArenella, Convicting the Morally Blameless: Re- assessingthe Relationship Between Legal and MoralAccountability, 39 UCLA L Rev 1511 (1992).

This content downloaded from 130.91.146.35 on Wed, 8 Oct 2014 19:25:29 PM All use subject to JSTOR Terms and Conditions 840 The Universityof Chicago Law Review [65:795 moregood than evil; (2) thatbelief is a but-forcause ofhis action; and (3) the standards the actor employsfor measuringand evaluating"evil" and "good"in this case are defensibleunder commonmoral standards.

B. CriminalizingBlackmail: Of Harm and Bad Motive Withthese preliminaries out ofthe way,we have reachedthe criticalquestions: (a) does blackmail(ordinarily) cause cognizable harm?and (b) does the blackmailer(ordinarily) harbor bad motives?"52

1. A directapproach. To somereaders, "yes" is the obviousanswer to bothof these questions.Professor Wendy Gordon has opinedthat "the deon- tologiccase against blackmailseems clear. One persondeliber- ately seeks to harm anotherto serve her own ends-to exact moneyor otheradvantage and does so in a contextwhere she has no conceivablejustification for her act."153The task,though, is to explainhow we knowthe blackmailerseeks to cause harm withoutadequate justification. ProfessorGordon offers a thoughtfuland elaborateexplana- tion,but not,I think,one that ultimatelypersuades. Inverting the familiardoctrine of double effect,"M Gordon proposes to dem- onstratethe wrongfulnessof a blackmailer'smotives by relying on her so-calleddoctrine of single effect, which holds that "when one's directintent is to do harm,beneficial side-effects have little or no deontologicalsignificance."155 Under this principle,Gordon concludes, the blackmailerviolates deontologicalconstraints if he threatensdisclosure in orderto obtainmoney or otherad- vantagebecause his intentis directedto the money,not to

152Regardless of whetherthe thirdcriterion for criminalization rests on consequen- tialistor retributivejustifications, see note144, it cannotrequire that the conductexam- ined alwayscause (or threaten)harm and be undertakenwith bad motives.Such a re- quirementwould make ex ante line drawingimpossible. Although one or anothermore precisequalifiers might appear more apt on furtherscrutiny, "ordinarily" serves as a sat- isfactoryplaceholder-with the importantqualification that it not be understoodto re- quirethat harm or bad motivesoccur "more often than not." There is no a priorireason whymaking certain conduct criminal must be improperwhen "only," say, 40 percentof givenconduct is undertakenwith bad motives. ' Gordon,141 U Pa L Revat 1758(cited in note1). '"The doctrineof doubleeffect provides that it is "morallypermissible to do an act thathas bad consequencesif they are outweighedby the good,so longas the harmsare notdirectly intended." Id at 1763. 'mId at 1764-65.

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the [lawfulnessof] the disclosureor beneficialside-effects that mightbe produced.These latterfactors are thus outsidethe intentof the blackmailerin the same way the killingof ci- vilians is outside the intent of the strategic bomber: if blackmail'spurported beneficial effects were eliminatedor if civilianswere protected,the actorswould go forward.Since the blackmailer'send is harm,the act is not redeemableby the possibilitythat some componentof the means he uses mightbe lawfulor beneficial.'56 The greatestproblem with this analysis is Gordon'sassertion that "the blackmailer'send is harm." What does this mean? Surelynot that his motiveis to cause harm,for presumably the average blackmailer'smotive, like that of the garden variety thief,is merelyto obtain a personal benefit.Perhaps Gordon means that blackmailis wrongonly because the blackmailerhas no interestin benefittinghis victim.157But so what? Without more, Gordonseems merelyto describe a narrow self-interest most observerswould already ascribe to the blackmailereven withoutthe benefitof her doctrineof singleeffect. Moreover, her doctrinedoes notexplain why the criminallaw shouldcare about such self-interest. Consequently,two questions remain. First, the question Gordonaddresses but does notadequately answer: in what way is a blackmailer'smotive bad? Second,a questionGordon overlooks: how does the blackmailer'smotive differ from that ofthe person who disclosesharmful information without first trying to sell his silence?I proposeto answerthese questions by tacklingthe latter one first,believing that we can best understandwhy blackmail is criminalizedby examiningwhether our thirdcriterion of crimi- nalizationjustifies criminalization of the unconditionaldisclosure of informationlikely to be injurious to the reputationof another.'58

'"Id at 1765-66. 157 Gordonconsiders a "libertarian"objection: [A]nordinary buyer would be delightedto obtaingoods without paying, and an ordi- naryseller would be delightedto obtainmoney without giving up goods.If so, the partiesto the commercialtransaction have the "real"or directintent of extracting moneyor otheradvantage-just like the blackmailer. Id at 1770.Not so, she counters,proposing that, as an empiricalmatter, most people value reciprocityin exchange."Take away the componentof the buyeror seller'sactivity that benefitsothers, and she will findthe activityless attractive;if so, thenunder the DSE test,part of the 'real' or directintent is to exchangeand notto extract."Id at 1771. '"It will be apparentthat we are enteringthrough the firstdoor-attacking the blackmailpuzzle by focusing on blackmailas an exceptionto the rulethat it shouldbe legal to threatenwhat it is legal to do, ratherthan as an exceptionto the rule that volun-

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2. Detour:criminalizing the unconditionaldisclosure. The thirdcriterion, recall, requires that the conducttends bothto cause or threatenidentifiable harm and to be undertaken by a morallyblameworthy actor. Plainly, the simpledisclosure of informationlikely to injure another'sreputation satisfies the harmrequirement (at least whenthe claimedinjury is ofa suffi- cientlysubstantial degree as to warrantsociety's protection159). Injuryto reputationis clearlyother-regarding harm. Moreover, it is a harm that has long been legally cognizable--civillyand criminally-underboth commonand statutorylaw.Y60 At this stage ofthe inquiry, it is irrelevantwhether the disclosureis true or false; eithercan cause real harm.161It is likewiseimmaterial whetherdisclosure causes greateraggregate benefit than aggre- gate harm,as may occurwhen an adulterer'sinfidelity is disclosedto thewronged spouse or whenan embezzler'soffenses are disclosedto his businessassociates. A weighingof harms versus benefitswould be essentialto an effortto criminalizethe conduct in accordwith the first criterion articulated above, which requires that the conductyields net adversesocial consequences.162But it

tarytransactions should be legal.See introductionto SectionII. In Gorr'sestimation, mosttheorists have . .. tendedto supposethat there is nothingespecially problematicabout the fact that we permitblackmailers to do whatthey threaten, and thatall thatreally needs explaining is how,in lightof this, it couldever make sense to prohibitthe threatsthemselves. My contention,however, is that this is preciselythe wrongway to viewthe matter and thatthe key to resolvingthe paradox of blackmail (and to meetingsome of the otherimportant objections to its continuedcriminalization)is to determinejust whyblackmailers are giventhe libertyto do the acts that theythreaten. Gorr,21 Phil & Pub Affat 44 (citedin note83). Despitethe rightnessand importanceof this insight,Gorr's argument that a givenact and its correspondingblackmail proposal are morallyequivalent fails for reasons already assayed. See notes83-88 and accompanyingtext. 9Consistentwith the maxim de minimisnon curat lex, the mildly insulting or indis- creettattle of everyday discourse does not count. See Restatement(Second) of Torts ? 559 (1977) ("Acommunication is defamatory ifit tendsso to harmthe reputation of another as to lowerhim in theestimation of the community or to deterthird persons from associating or dealingwith him.") (emphasis added). 1"See Gertzv RobertWelch, Inc, 418 US 323,341-46 (1974). See also id at 341 (stating that"the individual's right to the protectionof his goodname 'reflectsno morethan our basic conceptof the essential dignity and worthof every human being-a conceptat the rootof any decentsystem of ordered liberty'"), quoting Rosenblatt v Baer, 383 US 75, 92 (1966) (Stewartconcurring). 161 See generallyGarrison v Louisiana,379 US 64, 72 (1964) (acknowledginggeneral "abhorrencethat 'a man'sforgotten misconduct, or the misconductof a relation,in which the publichad no interest,should be wantonlyraked up, and publishedto the world,on the groundof its beingtrue') (emphasisomitted), quoting Thomas Curson Hansard, ed, 69 ParliamentaryDebates 1230 (Hansard 3d series 1843) (remarksof Lord Campbell); BruceW. Sanford,Libel and Privacy? 6.1 at 201 (PrenticeHall 1991& Supp 1997). '62See Section II.A.2.

This content downloaded from 130.91.146.35 on Wed, 8 Oct 2014 19:25:29 PM All use subject to JSTOR Terms and Conditions 1998] TakingMotives Seriously 843 has no bearingon the permissibilityof using the thirdcriterion (or the second)to make reputation-threateningdisclosures criminal. For purposesof the thirdcriterion, to repeat,the "harm"con- ditionrequires only that the conductat issue causes or threatens identifiableharm, not that the aggregationof all possibleharms and benefitsyields a net diminutionof social welfare. The secondrequirement of the thirdcriterion, however-that the disclosureof reputationally harmful information be ordinarily undertakenwith bad motives-is not satisfied.Doubtless some disclosuresare malicious or unjustified.But many others are made with good motives-to protecta potentialvictim of a con man or to providepresumably helpful and deservedinformation to a benightedspouse, for example. It seems unlikelythat the instances in whichpersons disclose reputationallyharmful informationwith morally bad motivesconstitute a sufficientlylarge subsetof all reputationallyharmful disclosures to warrantcrimi- nalizationunder the thirdcriterion.163 There is no reason, however,that an explicitdescription of motivationcannot be importedinto a definitionof the conductto be criminalized.This being so, conductdescribed as "themorally blameworthydisclosure of information likely to harmthe reputationof another" could be made criminalconsistent with the third criterion(where, if necessary to satisfy notice requirements, "moralblameworthiness" is furtherdefined consistent with my earlier discussion).In fact, throughthe law of criminal libel, many states have prohibitedprecisely that: by the time of the SupremeCourt's 1964 decisionin Garrisonv Louisiana," a majority of states had constitutionalor statutoryprovisions that made trutha defenseto a criminallibel prosecutiononly when "publishedwith good motives and forjustifiable ends.""l The Su- preme Court's holdingin Garrisonthat the First Amendment prohibitsstates from prosecuting any but the knowingor reckless falsehoodwhen the alleged libelrelates to publicaffairs has led to judicial invalidationof several such statutes166and to desuetude ofmany others.167 But neitherGarrison nor the prospectthat the Court may expand it to prohibitcriminal libel prosecutionsfor

1'6 ep in mindthat most gossiping does not inflict cognizable harm. See note159. 14379 US 64 (1964). 16Id at 70-72& n 7. Althoughcriminal libel was generallyjustified as a meansto pro- tectagainst breaches of the peace, see id at 67-68,some jurisdictions had expresslycon- ceivedof the offenseas a means to guardagainst injury to the libeledparty. See, forexample,Gardner v Arizona,15 Ariz403, 139 P 474,476-77 (1914). '"See, forexample, Montana v Helfrich,277 Mont452, 922 P2d 1159, 1161 (1996) (citingcases). 167 See, forexample, Tollett v UnitedStates, 485 F2d 1087,1094 (8thCir 1973).

This content downloaded from 130.91.146.35 on Wed, 8 Oct 2014 19:25:29 PM All use subject to JSTOR Terms and Conditions 844 The Universityof Chicago Law Review [65:795 anymaliciously defamatory statements absent proof of falsity"6 is germaneto the presentinquiry, for First Amendment constraints are externalto thecriminal law proper.As faras criminaltheory is concerned,the unconditional disclosure of harmful information, withoutmore, is notproperly made criminal;the morallywrong- fuldisclosure is.

3. Bad motiveand theconditional threat. This discussionoffers one sufficientresponse to Gorr'ssug- gestionthat we need 'to determinejust why blackmailersare giventhe libertyto do the acts that theythreaten":'69 the likelihood that such personsact withgood motives seems too highto justifya criminalban. But it does not directlyexplain the criminalizationof blackmail.In orderto solve that puzzle we might firstexamine how a statethat criminalizes the disclosure of reputationallyharmful information with malice or withoutjustifica- tionmight prove those factors in a givencase.170 Because it is pro- foundlydifficult to obtain directevidence of an actor'smental state,"7'this is a challengingtask. In theory,bad motivationmight be provablein a varietyof manners.Admissions by the defendanthimself in conversationor privatewritings would be the best evidence.In certaincircum- stances,perhaps, the state mightbe able to relyon the factthat the defendantmade the disclosureanonymously.172 How about evidencethat the accused had offeredto remainsilent for a fee

'The GarrisonCourt explicitly left this question open. See 379 US at 72 n 8. A decade later,the Courtagain refusedto decide"whether truthful publications may ever be sub- jected to civil or criminalliability consistently with the First and FourteenthAmend- ments."Cox Broadcasting Corp v Cohn,420 US 469,491 (1975). "'See note 158. '70Many criminal libel statutes, following the commonlaw, mitigatedthis problem by makinggood motive and justification affirmative defenses. See Garrison,379 US at 70 n 7 (cataloguingstate provisions). But a simpleallocation of the burdens of production or persuasion(or both) to the defendant cannot eliminate all difficultybecause the state must be preparedto introduceevidence of bad motiveif the defendantinvokes the defense.Fur- thermore,in criminalslander prosecutions the state often has theburden of proving bad motive.See, forexample, California v Faber,29 Cal App 2d Supp 751, 77 P2d 921, 923 (1938). 7' See Kimberlinv Quinlan,6 F3d 789, 809 & n 11 (DC Cir 1993) (Edwardsdissent- ing),vacated and remanded,515 US 321 (1995); Ginsburgand Shechtman,141 U Pa L Revat 1864(cited in note2). 'See Pennsylvania v Foley, 292 Pa 277, 141 A 50, 51-52 (1928) (affirmingconviction understatute prohibiting "the sending of anonymous communications ofa . . . defamatory . . . nature,"and explainingthat anonymous publications of defamatorymaterial "show such a malignityof heart and a desireto do personalinjury that the Legislatureor the courtsmay properly hold that such publications are so farmalicious or negligentas to be unjustifiable").

This content downloaded from 130.91.146.35 on Wed, 8 Oct 2014 19:25:29 PM All use subject to JSTOR Terms and Conditions 1998] TakingMotives Seriously 845 priorto makingthe disclosure?Does thistend to show the requi- site blameworthiness? Surelyit is probative.Consider, for example, a criminallibel prosecution(in a jurisdictionwhere blackmail is legal) involving defendant's(D's) disclosureof a husband's(H's) infidelitiesto his wife(W). Here,D's prior(unaccepted) offer to refrain,for a payment of $1,000, fromdisclosing the adulteryis circumstantial evidencethat, when he proceededto revealH's secrets,D was not motivatedby loyaltyto W, or by an interestin achievingsome measureof corrective justice, or by devotionto The Truth.A reasonable factfindercould suspectthat, had any of these interests motivatedD, he wouldnot have offeredto sell H his silence.This is notjust a covertway of givingeffect to the factfinder'sown ethicalbelief that D should not have offeredto remainsilent for individualgain. It is empiricallytrue that people value goodsand interestsin diverse and incommensurableways and, relatedly, that mostpeople have internalizeda normagainst commodifying certain types of nonmaterialinterests and obligations.'73It is thereforereasonable to assume that most people who recognize morallypersuasive grounds for undertaking a givencourse of actionwould not offer to sell abstentionfrom it forpersonal gain.'74 At the same time,assuming a relativeinfrequency of unbridled malice,many people who make a given disclosurewith morally blameworthymotives would refrain from making the disclosureif paid off.'75For these two reasons,the probabilitythat a morally bad disclosureof adultery occurred after the discloserhad offered to remainsilent for a fee is greaterthan the probabilitythat a morallygood adulterydisclosure occurred subsequent to such an offer.It followsthat a priorconditional offer of silence is probative evidencethat, in revealingH's infidelityto W,the defendant acted withthe morallybad motivesnecessary to make his action

"'For a thoughtfulelaboration of these claims, see Cass R. Sunstein,Incommensura- bilityand Valuationin Law, 92 MichL Rev 779,782-812 (1994). 1'7 This is an empiricalclaim. Whether society should employ the criminallaw forpur- poses ofreinforcing or even prescribingnorms of value incommensurabilityis a decidedly separatequestion. See id at 790-93.Precisely because so manypeople alreadydo act in waysreflective of value incommensurabilityand resistantto wholesalecommodification, it is a questionwe need notresolve in orderto explainblackmail's criminalization. In other words,we are stillproceeding in accordancewith the third proposed criterion of criminalization,not the second. 175Recall that morallybad motivesare not limitedto circumstancesin whichthe actor'spurpose is to harmH, butinclude cases in whichhe acts withknowledge of harm to H withoutactually harboring motives that would amountto adequate moraljustification. Verypossibly, D did not revealthe harmfulinformation for the purposeof injuring H. D mayhave actedmerely to avoidthe loss ofreputation he felthe wouldsuffer by failingto carryout his threat.

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(taken with knowledgeof the harm it would cause) morally blameworthy."76 That the conditionalthreat is probativeevidence making it morelikely that the particulardisclosure of adultery was morally blameworthyis important,but it is not yet what we need to know.The criticalquestion is: how likely?Although it wouldbe foolishto hope formuch precision here, straightforward applicationof probability theory might allow us to hazard a veryrough estimate.As Bayes's Rule teaches,the odds that the post-threat disclosureis morallyblameworthy are the productof the odds thatany givendisclosure of adultery is morallyblameworthy and the evidentialvalue, or probativeweight, of the conditionaloffer.177For the reasonsjust discussed,the offer'sprobative weight is likelyto be fairlyhigh. That is, the conditionalthreat probably makesit significantlymore likely that the disclosurewas morally blameworthy.Absent any reason to suspectthat only an insig- nificantlysmall percentage of all disclosuresof adultery are badly motivated,it seems fairto concludethat it is "ordinarily"'78the case that the disclosureof adultery occurring after a conditional offerof silence is morallyblameworthy.179

'76Tobe sure,that the offer is probative,all thingsbeing equal, does notmean it es- tablishesthe proposition that D lackedmorally good motives when engaging in thedisclo- sure.The assumedempirical fact that there exist individuals who would be motivatedby morallypermissible reasons were they to exposean adultererand nonethelesswould be willingto remainsilent for payment entails that the evidentiary inference cannot be ironclad. Indeed,we can well imaginecases in whichit is quiteplausible that the defendant lackedbad motiveswhen exposing H's infidelity.For example,D mighttell a compelling storyof both his friendshipwith W and a pressingneed for funds (say, D's childneeds an emergencyoperation) arising in suddencoincidence with his discoveryof His adultery. Lackingany other source of income, D decides,after painful soul-searching, to blackmail H to obtainthe desperately needed funds. When H rejectsD's offer,D proceedsto spillthe beans to W,believing as he had all alongthat W had a strongmoral claim to theinformation,and evenfeeling somewhat relieved to be 'freed"to performhis moralduty. In this scenario-and by hypothesisonly!-D lacks bad motiveswhen engagingin his harm- causingdisclosure, notwithstanding his unsuccessfulblackmail proposal. But thisconclu- sionhas no bearingon thepivotal question of whether a reasonablefactfinder would view theunsuccessful blackmail threat as makingit morelikely that D possessedbad motives. We are speakingof inferring bad motives,not deducing them, and the strengthof the in- ferencedepends, here as elsewhere,upon the totality of circumstances. After all, if"[l]ife is the art ofdrawing sufficient conclusions from insufficient premises," Samuel Butler,The Note-Booksof Samuel Butler11 (MitchellKennerly 1913) (HenryFesting Jones, ed), no less is thecriminal law. 177Bayes's Rule providesthat the posterior odds are equal to the priorodds timesthe likelihoodratio. For a particularlylucid introduction to Bayesianprobability, see Bernard Robertsonand G.A. Vignaux,Interpreting Evidence: Evaluating Forensic Science in the Courtroomch 2 (Wiley1995). "78See note 152. '7This conclusioncan be supportedwith an examplebased on conservativeassump- tionsconsistent with the foregoing discussion. Where P(B I 0) = the probabilitythat a disclosureis morallybad givena priorconditional offer, P(G I 0) = theprobability that a dis-

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Insofar as these assumptionshold true more generally,a state could,consistent with the thirdcriterion of criminalization, make it a crimeintentionally to discloseinformation harmful to the reputationof anotherafter having first offered to remainsilent fora fee."8Because it is ordinarily,and uncontroversially, illegal to threatenwhat it is illegal to do, the state could also make it a crimeto threatento discloseinformation harmful to anotherafter first having offered to remainsilent only if paid. That, ofcourse, is blackmail."8' Having reached blackmail in this roundaboutmanner, we are positionedto offera conceptualdefinition of the offense:'82 closureis morallygood given a priorconditional offer, P(O I B) = the probabilityof a prior conditionaloffer given that the disclosurewas made with morallybad motives,and P(O I G) = the probabilityof a priorconditional offer given a disclosuremade with morally goodmotives, Bayes's Rule providesas follows: [P(B 10) /P(G I O)] = [P(B) /P(G)] * [P(O I B) /P(O I G)] (1) Assumenow that the backgroundprobability that a disclosureof adulteryis made withbad motivesis .2, thatthe probabilitythat a disclosuremade withgood motives was made aftera conditionaloffer of silenceis .1, and that the probabilitythat a disclosure made withbad motiveswas made aftera conditionaloffer of silence is .6. On these (con- cededlyunverifiable) assumptions, the probabilitythat an adulterydisclosure made after a conditionaloffer of silence is morallyblameworthy can be determinedas follows: [P(B I O) /P(G I O)] = (.2 /.8) * (.6 /.1) (2) [P(B I O) /P(G I O)] = 1.5 (3) P(B I10) = 1.5 * (1 - P(B I10)) (4) P(B I0)= .6 (5) Whateverthe "actual"numbers might be (in somecontrivedly empirical sense), social actorsare likelyto suspectthat this figureis quite high,for the modernmind's strong preferencefor univocal, linear narrative is antagonisticto the psychologicallymore com- plextales (as in note176) thatthrow the evidentiaryinference into question. See Richard K Sherwin,Law Frames:Historical Truth and NarrativeNecessity in a CriminalCase, 47 Stan L Rev 39, 40 (1994). Andinsofar as we mightprefer to groundthe thirdcriterion of criminalizationin a consequentialist(rather than retributivist) general justifying aim concernedwith social reinforcement ofmoral norms, it is theperception, not the reality, of the incidenceof morally blameworthy motives that matters. See note144. 'This is notto say that such conductshould be criminal.Each of the threecriteria providesonly prima facie justification for criminalizing conduct; none demands it. A legislature could choose not to criminalizereputation-threatening disclosures undertaken with morallybad motivesif it concludesthat such disclosuresadvance social welfare. Moreover,other legal norms,including a constitutionalguarantee, might mandate non- criminalization.As noted earlier,the SupremeCourt has alreadyconstrued the First Amendmentto prohibitcriminal punishment of true speechregarding matters of public interest.See note168. 181It shouldmake no differencewhether the state choosesto enact the firstoffense. Imaginethat the statehad criminalizedboth the act and the threatand thendecided to repeal the firstfor practical reasons (perhaps because it was deemedtoo vague, or too likelyto chillwell-intentioned disclosures). There is no reasonthat it shouldhave to repeal the secondas well. 182 In describingthe definitionas conceptual,I mean to emphasizethat I do notintend here to proposea legal definition.The definitionin the textdoes notcorrelate perfectly withblackmail as law and commonparlance presently define it. More to thepoint, I do not suggestthat this definition should be codified.I take it thatthe first step when drafting a

This content downloaded from 130.91.146.35 on Wed, 8 Oct 2014 19:25:29 PM All use subject to JSTOR Terms and Conditions 848 The Universityof Chicago Law Review [65:795 blackmailis a conditionalthreat by B to harmA undercircum- stances in whicha reasonablefactfinder could inferwith confi- dence sufficientfor purposes of criminalization that if B carried out his threathe would be engagingin harm-causingconduct with bad motives-specifically,that B would lack morallyadequate reasons for knowinglycausing harm-yet in which the moralcharacter of B's motiveswould have been opaque had he acted withouthaving made the threat.Put otherwise,blackmail is a conditionalthreat to performa legal but harmfulact under circumstanceswhere the threatitself provides reason for making the act criminalby suggestingthat the actorwould be inflicting harmknowingly and withoutgood motives.183

C. Summary:Resolving the Puzzles 1. The principalpuzzle: why the act is legal and the threatillegal. The foregoingdiscussion and proposed definitionshould make clear whythe threatis illegal and the unconditionalper- formanceof the threatenedact is not. As many theoristshave noted,there is a moraldifference between the two.But, contrary to prevailingopinion,"M that differenceis not that the threatis somehowa morallyaggravating factor. In theusual cases, merely doingan act thathas been leveragedinto a blackmailproposal is morallyindeterminate in two senses-it is not clearlyright or wrongitself, and, all else beingequal, it carriesinsufficient data to supporta secureinference about the moralcharacter of the actor'smotives. The threat,however, is presumptivelyundertaken for bad motives.Insofar as we can explain why blackmailis criminalonly in accord with the thirdcriterion of criminaliza-

criminallaw is to identify,as closelyas possible,the true contours of the conduct we wish to proscribe.The set oflegal rules consisting of both elements and defenses,crafted in responseto thatunderstanding, will inevitably be bothover- and underinclusivein relation to the underlyingconduct that societywould ideally want to deterand punish.In this way,the legal definitionwill be a productof, but unlikelyidentical with, the conceptual definition. 183Itfollows that, where practicable, the state shouldexcept from the blackmailban (throughoffense elements or affirmativedefenses) conditional threats as to whichthe likelihoodof bad motivesif undertaken can be expected,ex ante,to be particularlyweak. See SectionIII. 184See, forexample, Katz, 141 U Pa L Rev at 1595 (citedin note92) (concludingthat theblackmailer's "accommodation ofthe victim's preferences [by proposing, and agreeing, to remainsilent for a fee]aggravates rather than improves his moralposition"); Altman, 141 U Pa L Rev at 1657(cited in note43).

This content downloaded from 130.91.146.35 on Wed, 8 Oct 2014 19:25:29 PM All use subject to JSTOR Terms and Conditions 1998] TakingMotives Seriously 849 tion-which turnson the mentalstate and motivationsof the actor-the blackmailthreat has onlyevidentiary significance.185 ProfessorWesley Hohfeld'sdistinction between "operative" and "evidential"facts provides a usefulvehicle for understanding this bedrockpoint. According to Hohfeld,"[o]perative, constitutive, causal, or 'dispositive'facts are those which . . . sufficeto change legal relations."186In contrast,"[a]n evidentialfact is one which,on being ascertained,affords some logicalbasis-not conclusive-for inferringsome otherfact. . .. eithera constitutive fact or an intermediateevidential fact."187Plainly, the blackmailer'sconditional threat is an operativefact under the existing law of blackmail.Indeed, to ask whyblackmail is a crimewhile the act threatenedis not is really only to inquire into whythe threatis an operativelegal fact.Ordinarily, a factis operative under the criminallaw because it has pre-legalconstitutive or causal significance.That the deceased was a human being is an operativefact under the law of homicide,for example, because somethingof independentimportance turns on the fact that it was a person(rather than, say, a chickenor a tomatoplant) that was killed. The evidentiarytheory of blackmailrecognizes that the blackmailthreat is notthis type of operative fact. Fundamen- tally,the conditionalthreat is not "operative"at all, but evidential-it "affordssome logical basis (not conclusive)for inferring some other fact," namely, that the threatenerhad morally blameworthymotives. In short,for purposes of explainingthe surprisingconjunction that it is illegal to make a blackmail threatwhile it is legal to engage in the conductthreatened, the actor'sbad motivation,not the threatitself, is properlyviewed as "operative." Not onlyis the threatto discloseembarrassing information not necessarilymorally worse than the unconditionaldisclosure ofinformation absent the threat,but it may well be that a given

"86Todeny any categoricalmoral difference between wrongful disclosure of damaging personalinformation about a personand blackmailinghim over the same informationis not to assertthat the criminallaw need punishthe behaviorswith equal severityif the state choosesto criminalizethem both. Deciding how muchpunishment to meteout for particularoffenses involves different considerations than does determiningwhether to criminalizeparticular conduct. Although an explorationof the formerquestion is well beyondthe scopeof this Article, it is worthobserving that the twovarieties of conduct differ in potentiallyrelevant ways. For example,Fletcher is surelyright to emphasizethat blackmailis particularlyharmful because it is usuallya repeataffair (although his conclusionthat blackmail is thereforea "paradigmatic"crime seems a nonsequitur). Fletcher, 141 U Pa L Rev at 1626 (citedin note96). "8WesleyNewcomb Hohfeld, Some Fundamental Legal Conceptionsas Appliedin Ju- dicial Reasoning,23 Yale L J 16, 25 (1913). 187Id at 27.

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discloserof informationacts witheven greatermoral blamewor- thinessthan does the ordinaryblackmailer. Consider the case of Charles AugustusMilverton, the masterblackmailer concocted bySir ArthurConan Doyle.188 Milverton's method is as follows:He allowsit to be knownthat he is preparedto pay veryhigh sums forletters which compromise people of wealthand position.. . . Everythingwhich is in the market goes to Milverton,and thereare hundredsin thisgreat city who turnwhite at his name. No one knowswhere his grip mayfall, for he is fartoo rich and cunningto workfrom hand to mouth.He will holda card back foryears in orderto play it at themoment when the stakeis bestworth winning."89 Reasoningthat one cannot"compare the ruffianwho in hotblood bludgeonshis mate withthis man, who methodicallyand at his leisuretortures the soul and wringsthe nervesin orderto add to his alreadyswollen money-bags," Sherlock Holmes deems Milver- ton"the worst man in London."'190 Maybeso, butMilverton could be worsestill. Imagine that he is as cunningand ruthlessas Conan Doyle represents,but that he is motivatedby somethingother than money.Already rich as Croesus, Milvertonacquires informationnot to blackmailbut merelyto reveal,for he takes greaterpleasure in causing pain and sufferingthan in aggregatingfurther wealth. This Milverton wouldnever consider offering his victima choiceof harms; he will discloseevery bit of embarrassingand discreditinginformation he obtains-at the momentmost damaging to its subject.To be sure,this Milverton is a less likelycharacter than Conan Doyle's because spite is a less commonand less all-consumingmotive than avarice"9'(and because, unlikeblackmail, the enterpriseof revealinginformation is not likelyto be self-financing).But is thereany doubtthat the "MasterFink"-who "methodicallyand at his leisuretortures the soul and wringsthe nerves"in order to torturethe soul and wringthe nerves-could more fairlylay claimto the title"the worst man in London"than couldthe Mas- terBlackmailer?

"See ArthurConan Doyle, The Adventure of Charles Augustus Milverton, in 1 Sher- lockHolmes: The CompleteNovels and Stories791 (Bantam1986). Milverton is discussed in Hepworth,Blackmail at 46-47(cited in note19). 89 Doyle,Adventures of Charles Augustus Milverton at 792. 9Id. 191 It is partiallyfor this reason that the evidentiary inference is probative.See textac- companyingnotes 174-75.

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All this suggests that, First Amendmentconsiderations aside, themorally blameworthy disclosure of harmful information could be made criminal.However, because the state would have to provethat the defendanthad a bad motive,successful prosecutions would be rare. At the same time,adoption of such a crime wouldimpose many costs-for example, it would waste resources in failedprosecutions, chill the disclosureof socially useful facts, and likelysow disrespectfor the law. Moreover,when the state did successfullyprosecute, it wouldlikely do so on the strengthof evidencethat the defendanthad firstattempted to blackmailthe victim-in whichevent a prosecutionfor the crimeof blackmail wouldbe available anyway.For all these reasons, a decisionnot to enact such a law seems,at the least,prudent.

2. The secondarypuzzle: distinguishingother voluntarytransactions. The answer to the secondblackmail puzzle should be clear now,too. The law and economicsscholars have tendedto suppose that blackmailis a voluntaryexchange between the blackmailer and victimbut have concludedthat the practiceis nonetheless properlymade criminal(at least in its paradigmaticform) because ofthe costsit imposeson otherpersons who are notparties to the transaction(including society at large).'92The evidentiary theorydemonstrates that this premiseis mistaken.While not de- nyingthat blackmail might harm third parties, it insiststhat the blackmailtransaction is notvoluntary in the firstplace. As ProfessorKathleen Sullivan has cogentlyexplained, coercion 'is inevitablynormative .... It necessarilyembodies a conclusionabout the wrongfulnessof a proposal."'93Surely, then, if a proposedcourse of actionis wrongin itself,the conditionalpro- posal is coercive(at least where the recipientof the proposal views the proposedaction as detrimentalto her own interests). But normativeconcerns are not limitedto whethera proposalis inherentlywrongful in eitheran objectiveor conventionalsense; theyextend as well to considerationsof the moralcharacter of an actor'smotives for advancing a proposalthat is itselfmorally ambiguous.Although clarity may sometimesbe enhancedby term- ing an immoralproposal "wrongful" and an immorallymotivated one "bad,""'twe shouldnot insist on the distinctionat all costs.To the contrary,inasmuch as the conditionaloffer tends to reveal

"See note12. 9 Sullivan,102 Harv L Rev at 1443(cited in note130). See note150.

This content downloaded from 130.91.146.35 on Wed, 8 Oct 2014 19:25:29 PM All use subject to JSTOR Terms and Conditions 852 The Universityof Chicago Law Review [65:795 thatthe actorwould lack morallyadequate reasonsfor engaging in his threatenedcourse of conduct,a refusalto recognizethis particularproposal-made by this particularactor on this particular occasion-as "wrongful"beclouds more than it illumi- nates. Put otherwise,perhaps we should not rigidlyinsist that the moralcharacter of acts be judged independentlyof the mo- tivesbehind them.'95 It followsthat the blackmailvictim is just as coercedas theholdup victim. Because people'sassumptions about the intentionsand motivationsof othersare centralto the way theyexperience social intercourse,"9victims of blackmail, just as much as victimsof holdups,are likelyto view the threatener's proposalas a "threat,"not an "offer,"and to experiencethem- selvesas actingunder duress.'97 In neithercase is thevictim's ac- quiescence"voluntary" in a sense sufflcientlyrobust to counsel against societal interferencewith his purportedtransactional autonomy.

III. TESTING THE EVIDENTIARY THEORY: THE CENTRAL CASE AND BEYOND Afterdemonstrating that the evidentiarytheory explains criminalizationof a threatto expose an adulterer,the previous Sectionmoved quickly to contendthat the theorygenerally supportscriminalizing threats by B to revealembarrassing informationabout A unlessA paysB to remainsilent. But thisparticular conduct-whichmight be called "centralcase" blackmail-far fromexhausts the universeof potentialblackmail. The act a blackmailerthreatens need not be to discloseinformation. The blackmailerneed not demandmoney. Furthermore, even central case blackmail(as somewhatarbitrarily defined) encompasses numeroussubcategories that perhaps warrantfurther exploration.Should it matter,for example, if the information B threatens to reveal is not merelyembarrassing but relatesto A's commis-

19"SeeSteven Sverdlik, Motive and Rightness,106 Ethics327, 327 (1996) (setting forth,and criticizing,the "verywidely accepted and rarelyquestioned" proposition in moraltheory "that the motive of an actionnever determines whether it is rightor wrong"). "See H.L.A.Hart, Punishment and Responsibilityat 182 (citedin note134) (observ- ing that "personsinterpret each other'smovements as manifestationsof intentionand choices,and thesesubjective factors are oftenmore important to theirsocial relations thanthe movements by which they are manifestedor their effects"). "Put otherwise,theorists who deny that blackmail is coerciveor thatthe blackmail victimacts under duress fail to understandor validatethe victim's perspective as participantin a particularhuman drama. Were she to articulateher sense of being coerced, the victimwould be morelikely to emphasizethe particularcomplaint that her blackmailer oughtnot to do as he threatens,not the more abstract objection that what the blackmailer threatensought not be done.

This content downloaded from 130.91.146.35 on Wed, 8 Oct 2014 19:25:29 PM All use subject to JSTOR Terms and Conditions 1998] TakingMotives Seriously 853 sion of a crime?Or what if B "demands"of A no more than B could get fromother market actors for the same information? Questions like these have occupied,and at times confounded, blackmailtheorists. Accordingly, any adequate theoryof blackmail mustshow how the law shouldtreat these and otherdistinc- tive cases. This Sectionexplores several of these variationsand seeks to demonstratethat the evidentiarytheory accounts well for commonmoral intuitionsregarding the proper scope of a criminalprohibition.

A. A BlackmailTest As Feinberghas observed,every blackmail proposal is a double conditionalof the form"if -x then y; and ifx then-y." The first conditionalis a "threat,"the second an "offer";y is the "act (threatened),"-y the "act (offered)";x is the "demand."198In order to explorefurther the validityand utilityof the evidentiarytheory,this Section proposes a test to assess whetherany given propositionthat meets blackmail's formal requirements should be deemed'blackmail" for purposes of the criminallaw. The testhas foursteps. First,assume the actorsimply performed the act threatened (y) and ask whetherthat actionis itselfcriminal. If the answeris yes,then the propositionis just a threatto performa criminalact and is not blackmail.There is nothingpuzzling about criminalizing a conditionalthreat to commita crime,and we would con- fusean alreadyconfusing subject by bringingsuch threatswithin the rubricof blackmail.The propositionis usefullyand conven- tionallylabeled "extortion" or "criminalcoercion."'99 Second, if the act, y, is not itselfcriminal, ask whetherit causes or threatenslegally cognizable harm. If it does not,then it cannotbe made criminal(or at least not on the strengthof the third criterionof criminalization).Certainly, one might be temptedto call at least some propositionsthat fall out at this stage "blackmail,"and the designationcould be appropriateso longas we are speakingof moral rather than legal offenses.How- ever,the purposeof this inquiryis to determinethe properscope

" Feinberg,Harmless Wrongdoing at 246-47(cited in note2). "WAsFeinberg has explained,distinctions between such termsas "extortion"and "blackmail"have not been consistentlyobserved. Id at 240-42 (classifyingextortion and blackmailwithin the broad genus of theft).The 'blackmail"label is best reservedfor threatsto performa legal act,while threats to commitan unlawfulact are either"extortion"(if the threatis to be carriedout in the future)or "robberyby threat"(if the threat- enedaction is immediate).See, forexample, Shavell, 141 U Pa L Rev at 1877 & n 1 (cited in note23) (adoptinga similarnomenclature).

This content downloaded from 130.91.146.35 on Wed, 8 Oct 2014 19:25:29 PM All use subject to JSTOR Terms and Conditions 854 The Universityof Chicago Law Review [65:795 of a criminalprohibition. Accordingly, when performingthe act threatenedwould impose a "disutility"that societywould not deema legal harm,this step ofthe testconcludes that the propositionis notblackmail. If the act is not criminalyet causes harmthat is cognizable for purposesof the criminallaw, the next task is to explore whetherthe actorhas morallybad motives.The thirdstep, therefore,is to identifywhich particular reason(s) foraction would have made the actor'sharm-causing conduct morally justified. Thefourth step is to ask whetherthe actor'soffer not to performy on conditionx makesit materiallyless likelythat he was actually motivatedby any one ofthe morallyjustifying reasons identified in the thirdstep.2"0 If so (and ifthat perceivedlikelihood is suffi- cientlylow) the originalproposition should be condemnedas blackmail.201 As shouldbe expected,this test supportscriminalizing B's threatto revealA's adulteryunless A pays $1,000.The firststep is to disregardthe threatand offer,and to assume thatB simply disclosedA's adultery.That is not a crime.Next, ask whether thatact causes legallycognizable harm. It does.202Third, identify the motivesB musthave had in orderto keep his disclosurefrom being morallyblameworthy. Fourth, consider whether B's pre- cedingoffer to preserveA's secretupon payment of $1,000 makes it materiallyless likelythat B did in factact because ofthe motives hypothesizedat the thirdstep. We have alreadyanswered thisquestion in theaffirmative.203

'Frequently,such a conclusionwill be warrantedwhen the apparentpurpose of the offeris incommensurablewith the hypothetical "legitimate" purposes animating the act, y. 2 We are stillnot in a positionto specifywhat the threshold likelihood should be. See note 152. The familiarstandard of proofin criminalcases mightsuggest that conduct shouldbe excludedfrom the criminal ban unlessthe fourthstep permits one to conclude beyonda reasonabledoubt that the actor would have lackedmorally justifying motives for engagingin acty. Thisformulation would be correctwere the question whether the actor shouldbe convictedunder a statutethat prohibits the commissionof harm-causing con- ductwith morally bad motives.The standardneed not be so strict,however, when the questionis whetherspecific definable categories of conductshould be prohibitedby the criminallaw, for overbreadth in criminalizingconduct implicates different considerations thandoes overbreadth in convictingindividuals. So longas a criminallaw givesfair notice ofproscribed conduct, and individualsare notconvicted under such a statuteunless they are foundto have engagedin theproscribed conduct 'beyond a reasonabledoubt," crimi- nalizationcan be justifiedon a substantiallylesser showing. However, because we willbe unableto progressfar in articulatingthe proper required showing without first adopting a particulargeneral justifying aim ofthe criminal law, perhaps the best we can do at present is to toleratethis vaguely worded test and to focusnot on thebottom-line likelihood thatthe actorwould have possessedbad motiveshad he engagedin theconduct threatened,but rather on theprobative weight the offer lends toward that inquiry. ' See note160 and accompanyingtext. "See notes173-78 and accompanyingtext.

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This briefapplication of the blackmailtest should suggest that the test is simplya more formalized(though not a purely mechanistic)articulation of the evidentiarytheory from Section II. As such, it does not demonstratethat eitherthe test or the theoryis correct.A formalproof is, in any event,impossible. The followingSection does the next best thing:attempting to show thatthe resultsof the evidentiarytheory of blackmail and its test conformeither to existingstrongly shared intuitions,or to judg- mentsthat can be acceptedupon reflection.

B. Applications This Section analyzes seven categories of conduct,both withinand withoutthe centralcase ofblackmail, that challenge eitherthe criminalizationof blackmail in totoor the integrityof any unifiedexplanation of the crime.These seven categoriesare: (1) "hard"commercial bargaining; (2) marketprice blackmail; (3) threatsto expose a crime;(4) threatsby the victimof the person blackmailed;(5) public interestblackmail; (6) noninformational blackmail;and (7) bribery.The inquirythroughout is whether thisparticular category of conduct is criminalizableas a matterof principlebecause it satisfiesthe twinrequirements that it ordi- narilycause harmand ordinarilybe undertakenwith morally bad motives.Whenever the answer is no, one must ask whetherit would be practicalto carve out an exceptionfor that category froma generalblackmail ban. Since thisArticle attempts only to answer the broad theoreticalquestions regardingblackmail, it does notexplore the particularissues this secondquestion raises; doingso wouldamount to proposinga modelblackmail statute.

1. "Hard"bargains. Explicitlyor implicitly,every potential commercial transac- tionconforms to the same doubleconditional form as does blackmail. The propositionimplicitly conveyed by yourlocal retailer, forexample, is this: "Ifyou pay me the listed purchaseprice for any good in mystore, I will give it to you; ifyou do not,I won't." Aside froma formalstructural similarity, this propositiondoes not look much like blackmail.Things get a littlemurkier, however,in the case ofthe "hardbargain," like thatpresented by Jef- frieMurphy's hypothetical owner of the Babe Ruth-autographed baseball.21

See text accompanyingnote 77.

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The hardbargainer is a sellerwho opportunistically jacks up his pricewhen he encountersa would-bebuyer with an unusually great need or desire forthe seller's good. Consideran antique dealer possessedof a cheap and uglyvase that,despite her best efforts,she has been unable to unload foryears. One day she re- ceives a visitfrom an eccentricmultimillionaire who announces thatthe vase is preciselywhat he needsto completehis collection and cap a lifelongsearch. When he asks the price,the dealeran- swersthat she willnot part with it fora pennyless than$10 mil- lion. The collector,not a completefool, is flabbergasted."But it's notworth anywhere near thatmuch!" he argues."Very true," the dealerresponds. "Indeed, just beforeyou walked in, I was consid- eringthrowing it out to make space forother merchandise. But I knowboth that you want it and thatyou can affordmy new price. Take it or leave it." Whateverwe mightthink of the dealer'sbehavior, we could not plausiblycondemn it as criminalso long as we (rightly)refrainfrom imposing price controls or a ban on pricediscrimina- tion in all its forms.Any satisfactory theory of blackmailmust, therefore,coherently explain why the hard bargainis not blackmail.The evidentiarytheory provides just suchan explanation.It beginsby consideringthe act threatened-inthis case, to retain ownershipof the vase. Very simply,this action could not be criminalized-nomatter what an observermight infer about the motivesof the actor-because it would not satisfythe harm requirement.Plainly, the collectorhas no legallyprotected interest in the vase; neitherdoes the public at large (thoughwe can imaginesystems of property law underwhich it would).By with- holdingfrom the collectora benefitin whichhe has no legal interest,the dealercannot inflict legally cognizable harm. Because the dealer'sreasons for keeping the vase-or even fordestroying it, were that her choice are legally immaterial,a conditional threatto do eitherunless paid offcannot provide any legally relevant information.Therefore, the conditionalthreat should be as legal as the unconditionalperformance of the act. In termsof the evidentiaryblackmail test, a "hard bargain" is not criminal blackmailbecause, under the secondstep fromSection III.A, the acts threatened(to keepthe vase or even to destroyit) wouldnot inflictlegal harm.205

It is tellingthat the hard bargain"fails" the blackmailtest at the secondstep, ratherthan the fourth. The hardbargainer may (at leastin certaincases) act withmotives we mightwish to condemnas immoral,though we do notbelieve her conductshould be made criminal.Put anotherway, there is a reasonablesense in whichour hypothetical millionairecollector might sputter with outrage, "But that'sblackmail!" even thoughhe

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2. Marketprice blackmail. ImagineB possesses an embarrassingphotograph of celeb- rityA, forwhich a supermarkettabloid will pay $1,000. Assume no externalfactors would make B's agreementto sell the photoa moralwrong (that is, forexample, B obtainedthe photowithout committingan immoralact and has no priorduty of confidential- ity to A). B approachesA with this proposition:"If you pay me $1,000, I'll give you this photographand its negative;if you do not,I'll sell themon the open market."Theorists are dividedover whetherthis proposal-"marketprice blackmail"-should be law- fu1.2"This scholarlyuncertainty is understandable.An evidentiaryanalysis reveals this to be one of the most complexriddles withinthe blackmail puzzle. At firstblush, this might appear an easy case. B's sale ofdam- aginginformation about A to tabloid(T) wouldbe no less hurtful to A than ifB were to give the informationto T forfree. Conse- quently,that T wouldpay B forthe disclosureseems irrelevant. In bothcases, B would have morallyacceptable motives for dis- closingto T onlyif she were to act forthe purposeof achieving what she (reasonably)perceives to be a greatermoral good. Her offerto refrainfrom disclosing the photographsto T if paid byA suggeststhat her disclosurewould not be so motivated.The market priceproposition to A thus has the same evidentiarysignificance as it wouldin the absence ofa market.Because B's offerto A appears inconsistentwith the assumptionthat B believespub- lication would serve a public interest,the conditionalproposition-at marketprice or otherwise-revealsthe moralblamewor- thinessnecessary for making such "blackmail"criminal. Thisargument is soundso longas doubtabout B's motivescon- stitutesone sufficientreason not to criminalizeB's sale to T in the absence ofa blackmailoffer to A. Verylikely, we would attribute publicspirited motives to some such unconditionaldisclosures- knowsthat the dealer'sproposition is lawfuland believesthat it shouldremain so. See GreenbeltCooperative Publishing Association, Inc v Bresler,398 US 6, 14 (1970) (noting that accusinga hard bargainerof blackmail was neitherslander when spokennor libel when reportedbecause the implicationwas so well understoodthat no one wouldhave thoughtthe bargainer was beingaccused of a crime). 'Compare Murphy,63 Monistat 164-65(cited in note2) (proposingto decriminalize blackmailwhen the putativeblackmailer seeks onlythe goingmarket price); Ginsburg and Shechtman,141 U Pa L Rev at 1860 (cited in note 2) (same); Feinberg,Harmless Wrongdoingat 262-64(cited in note2) (deeming"[d]emands for fair compensation for con- siderateoffers not to publish"instances of "[pilausiblyjustified blackmail"), with Lind- gren,141 U Pa L Rev at 1987(cited in note3) (opiningthat market price blackmail "seems like classicblackmail" and concludingthat, "[g]iven the lack ofagreement over the rationale forblackmail," its continuedcriminalization is sound).

This content downloaded from 130.91.146.35 on Wed, 8 Oct 2014 19:25:29 PM All use subject to JSTOR Terms and Conditions 858 The Universityof Chicago Law Review [65:795 principallythose that reveal a wrongfulact by,or characterflaw of,some personin a positionof publictrust. In these cases, the marketprice blackmailer'sconditional offer of silence has real evidentiaryvalue. But mostdisclosures that mightbe leveraged intomarket price blackmail are probablynot like this.It is more likely,I think,that the bulk ofinformation sold "on the market" consistsof things like photosof movie star M in the nude,or the revelationthat former basketball great S is sleepingwith a nine- teen-year-old.And thesesales are probablynot motivated by the seller's beliefthat othermorally compelling interests outweigh the harmcaused M or S. Instead,the seller'spurpose is to make a buck-not a motivationthat makes the harm-causingsale morallyjustifiable. If thisis so, the marketprice blackmail offer has littleor no evidentiaryvalue, in whichcase the evidentiarytheory cannot distinguishbetween the threat and theact. Andif the evidentiary theorycannot distinguish market price blackmailfrom market pricepublic disclosures of information about celebrities-because theformer is no morelikely than the latterto be undertakenwith bad motives-thenone oftwo conclusions follows: either B's sale to T shouldbe made criminal,207or it shouldnot be, but onlybecause otherconsiderations favor its legalizationnotwithstanding thatits criminalizationwould be justifiable under the third criterion.In fact,one strongreason for allowing B to sell embarrassing informationabout publicfigures should jump immediatelyto mind:the First Amendmentprobably forbids government inter- ventionin this typeof informationmarket.208 The likelyupshot, therefore,is (1) B should be permittedto sell T reputationally

"7SeeMurphy, 63 Monistat 165 (citedin note2) (discussingthe market price blackmail of publicfigures in the contextof a marketcreated by magazinessuch as theNa- tionalEnquirer and concludingthat "[i]fone reallywants to criminalizeeven this as blackmail,then it doesseem to me that-in consistency-oneought also to seekthe prohibitionof the wider market"). 'There is a separatepossible explanation for why we mighttolerate the disclosure notwithstandingthe bad motivessurmised. Insofar as publicfigures have elicitedpublic interest-thuscreating the marketnecessary to producea marketprice-by voluntarily enteringthe realm of public attention, they have madetheir private lives, to someextent and in someindistinct sense, public commodities. It couldbe argued,therefore, that by seekingand achievingcelebrity, public figures have assumedthe risk of widespread inva- sionsof their privacy. Arguably, then, any harm such invasions may cause shouldnot be legallycognizable. See Feinberg,Harmless Wrongdoing at xxviii(cited in note2) (defining "wronglessharms"). Notably, this argument for legalizing the disclosure also favorslegal- izingthe marketprice blackmail, which turns out to be just like the hardeconomic bargain: becauseit does notmatter for purposes of the criminallaw whetherone who sells reputationallyharmful information about a celebrityto a publisheris motivatedby her view of the publicinterest or just by narrowpecuniary gain, any potentialevidentiary valueof the market price blackmail proposition is legallyirrelevant.

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harmfulinformation about public figureA, even though(2) the class ofpersons who make the unconditionalsale to T are probably not less morallyblameworthy than those who make a conditionaloffer to A. Should anyof this matter for purposes of deciding whether to prohibitmarket price blackmail?Maybe.209 Insofar as the third criterionof criminalizationserves a retributivistgeneral justifying aim, the reasons for tolerating (presumptively)morally blameworthysales of harmfulinformation to thirdparties are probablyirrelevant to the criminalizationof marketprice blackmail. Even if the average marketprice blackmaileris no more blameworthy(and verypossibly less)210 than the averageuncondi- tional seller,all thatmatters is whetherhis conductis ordinarily harm-causingand morallyblameworthy. As we have seen, it appears that it is. That someother harm-causing blameworthy conduct(the sale ofreputationally harmful information to T) remains legal is besidethe point. But to the extentthe thirdcriterion serves a consequentialist justifyingaim, the argumentfor decriminalizingmarket price blackmailseems strong. After all, the marketprice blackmailer of A differsfrom one who simplysells reputationallyharmful informationto T in one conspicuousrespect: he givesa rightof first re- fusal to the personmost likely to be harmedby publicationof the information.This seems like a decentthing to do. Insofaras we adopt the thirdcriterion of criminalizationin orderto reinforce desiredmoral norms,211 we risk disservingthose normsby draw- ing criminallines that prominentlydistinguish two categoriesof

' Even ifthey do notlead us to concludethat thisconduct should be decriminalized, the foregoingassumptions might nonetheless advise againstterming the conduct"blackmail." Indeed,if point(2) above is correct,the marketprice threat would not qualifyas blackmailunder my proposed definition, which specifies that the actor'smotives for engagingin the threatenedact wouldbe opaque but forthe conditionaloffer. See textac- companyingnote 183. Of course,we couldkeep the marketprice threat criminal, call it "blackmail,"and revisemy proposed definition. But to do so wouldrisk undermining the threat'sevidentiary significance-which is the key to unlockingthe blackmailpuzzle. Consequently,if this conduct is to remaincriminal, conceptual precision might be better servedby deemingit a formof extortion, and expandingthat definitionto includesome threatsto performacts that, although legal, could be made criminalon familiarprinciples. 210ne reasonwhy so manypeople favor legalizing market price blackmail becomes clear by imaginingwhat a marketprice blackmail proposition might look like: "I happen to have a photographof you forwhich a tabloidis willingto pay $1,000.I'm inclinedto take themoney," B begins,"however, I knowthat if I sell it,its publicationwill cause you somedegree of discomfort. I have no desireto cause you harm.So I'm willingto turnover the phototo youfor the same $1,000the tabloidhas offered."See, forexample, Feinberg, Harmless Wrongdoingat 263-64 (cited in note 2) (describingthe "faircompensation" blackmaileras "commendablybenevolent," "thoughtful," "considerate," and "genero[us]"). 211 See note144.

This content downloaded from 130.91.146.35 on Wed, 8 Oct 2014 19:25:29 PM All use subject to JSTOR Terms and Conditions 860 The Universityof Chicago Law Review [65:795 conductbut discourageand punishthe seeminglyless blamewor- thyof the two.2"2In short,then, the particularreasons for legalizingthe unconditionalsale byB to T should,on consequentialist reasoning,entail also legalizingthe conditionalsale offerby B to A.213

3. Crimeexposure blackmail. A secondspecial categorywithin the centralcase is thought to arise when the informationB threatensto reveal would not merelyembarrass A, but wouldsubject him to criminalpenalty. This variation,which we may inelegantlyterm 'crime exposure blackmail,"has provokedparticular attention from law and economicsscholars, who querywhether permitting blackmail of this typewould benefit society as a formof privatelaw enforcement. Theiranswers vary.214

212Perhapsthis anomaly would not send a perversesocial message were there strong reasonsfor actually encouraging (rather then merely tolerating) B's sale to T. But thisis probablynot the case, forthe First Amendment interests implicated (in thecase ofpublic figureswho are notpublic officials) are morelikely ones of process than outcome. That is, thehealth of a freesociety does notdepend on whetherwe see photosof Fergie topless; it mattersonly that the government not decide whether we do. 23 Legalizingmarket price blackmail need notentail legalizing"supra market price blackmail"-theoffer to sellA embarrassinginformation for a sumsubstantially in excess ofwhat T wouldpay (as in therecent Bill Cosbycase). The statecan regulatethe priceB maycharge A fornonpublication-capping it at themarket price-for the same reason the stateengages in priceregulation elsewhere. Price regulation is a commonway of limiting the monopolist'sprice to a hypotheticalcompetitive price. And the blackmailer(market price,supra-market price, or otherwise)must be a monopolist(or, at least,an oligopolist) ofthe information he threatensto reveal,else his offerof secrecy would have littlevalue. However,B's possessionof information about A does notmake him equally a monopolist withrespect to therest of the worldas it doeswith respect to A himself.If B is the only personwith photographs of A in a compromisingposition, he is, bydefinition, a monopolist supplier.But his monopolyis economicallymeaningful only to the extentthere are no adequatesubstitutes for those photos. In thebroader market of "information about public figures,"substitutes for B's photosof celebrity A usuallydo exist-embarrassingor scan- dalousinformation (photographs, interviews, etc.) about celebrities C, D, and E. But these are not substitutesas far as A is concerned.Consequently, consistent with well- establishedjustifications for economic regulation of monopolies, the state could reasonably decideto protectA frommonopolistic exploitation by prohibiting B fromcharging A more than the hypotheticalcompetitive price for the informationin question-a price ade- quatelyapproximated by the existing market price. Conceivably, the statecould even en- forcethis rule through the criminal law on the strengthof the first criterion of criminalization.See textaccompanying note 142. 214Compare, for example, Brown, 141 U Pa L Rev at 1935 (citedin note 12) (arguing thatlegalizing blackmail of criminals would probably increase deterrence of other crimes), withPosner, 141 U Pa L Rev at 1823-27(cited in note2) (concludingthat the effects are ambiguous);Landes and Posner,4 J Legal Studat 42-44(cited in note39) (same);Shavell, 141 U Pa L Rev at 1899-1900(cited in note23) (contendingthat it is moreefficient to maintaina ban on crimeexposure blackmail, supplemented by publicauthority to offer rewardsfor the identification ofcriminals).

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Whateveruncertainty a utilitarian(or wealthmaximization) analysis mightengender, it is probablyobvious to most people that crimeexposure blackmail should be a crime.Indeed, under the reductivistapproach of Feinberg and Gorr,the matteris simple: because it is wrongfulto withholdinformation about a crme, it is equally wrongfulto offerto withholdit forpayment.2"5 Both the offerand the unconditionalperformance of the act offered maybe criminalized.In fact,however, the criminallaw treatsthe conditionaloffer substantially more severely. Under the common law, the mere failureto reportinformation about a crime (in- cludingthe identityof the perpetrator)was a misdemeanorcalled misprisionof felony.216Modern statutes have tendedto ignoreit entirely.217In contrast,the conditionalthreat to reportinformation about a crme is blackmail.218The evidentiarytheory-based on the insightthat the blackmailproposition is importantfor what it tends to reveal about the reasons this particularactor wouldhave forengaging in the act threatened-explainswhy. The criticalstep is to explorewhy the law toleratesa failure to expose a criminal.Plainly, silence can cause substantialharm to the public.It hampersefforts to punishand detercrime, and it can be a but forcause ofthe criminal'sfuture crimes. Moreover, the moral blameworthinessof remainingsilent in this case also seems apparent,at least initially,for it tends to bespeak a disre- gard forthe commongood and the concreteinterests of actual and potential victims.But a moment'sreflection reveals that we should not quicklyattribute bare selfishnessto the silent witness.219Her silence may be motivatedlargely by fear of retaliation,by friendshipand loyaltytoward the criminal,and by fearof the police. Our sympathyfor these motivationsprovides an ex- planationfor the lenienttreatment.220

216See Feinberg,Harmless Wrongdoing at 243-45(cited in note2). 216 id at 243. 2'7 P.R. Glazebrook,How Long,Then, Is The ArmOf The Law To Be?, 25 Mod L Rev 301, 307 n 51 (1962) (No courtin the UnitedStates has been preparedto adoptthe Englishdoctrine in its simplicity,and holdthat a merefailure to discloseknowledge of a felonyis itselfan offence.").However, through the offenseof 'compounding,"the Model Penal Code wouldmake it a misdemeanorto acceptmoney in considerationfor failing to reportto law enforcementauthorities information about the suspectedcommission of a crime.MPC ? 242.5. 218 See, forexample, MPC ? 223.4(2) (definingas guiltyof "theft by extortion"anyone who "purposelyobtains property of anotherby threateningto . . . accuse anyoneof a criminaloffense"). 219 Here theterm "witness" refers loosely to anyonewho has knowledgerelevant to the discoveryof a crimeor the captureand convictionof the culprit,no matterthe natureof theinformation or themanner in whichit was obtained. This seems to be the verysentiment underlying Chief Justice Marshall's famous pronouncementin Marburyv Brooks,20 US (7 Wheat)556, 575-76(1822): "It maybe the

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Considernow the threat.Had the witnessthreatened to expose the criminalunless paid off,we inferthat her motivesfor violatingher civic duty had nothingto do witheither love or fear ofthe criminal (either of which would be a morallymitigating factor).Rather, we can infer,she was motivatedby pureselfishness. The factof her blackmailproposal provides circumstantial evi- denceas to hermental state: we nowbelieve that she was in fact activatedby more culpable motives than, absent this evidence, we had hypothesizedmight have motivatedher. The evidentiarytest (whenapplied with slight variation) re- affirmsthis conclusion.The variationis to reversethe roles of threatand offerin the analysis.Assume, then, that the actorper- formedthe act offered(-y). The mereact ofremaining silent is not a crime,or, if a crime,is a fairlytrivial one (step 1). The act does, however,cause cognizableharm to the public(step 2). The effec- tive legalizationof the act is due to a surmisethat the actoris motivatedmore by fear or loyaltythan by selfishness(step 3). Considerationof the threat("I'll tell unless you pay") strongly underminesthis hypothesis. Therefore, crime exposure blackmail should be both a crimeand a more serious offensethan mere misprisionof felony.

4. Victimblackmail. Should the precedinganalysis of crimeexposure blackmail changeif the individualwho threatensto exposeA's crimewas A's victim?What if B threatensto file a criminalcomplaint againstA unlessA providesB reasonablecompensation for the harmsB actuallysuffered? The Model Penal Code specifiesthat it shouldbe an affirmativedefense to a prosecutionfor threatening to "accuseanyone of a criminaloffense . . . that the property obtainedby threatof accusation . . . was honestlyclaimed as res- titutionor indemnificationfor harm done in the circumstancesto whichsuch accusation... relates."221This defensewas added "in dutyof a citizento accuseevery offender, and to proclaimevery offence which comes to his knowledge;but the law whichwould punish him in everycase fornot performing this duty is tooharsh for man." The immediatelypreceding sentence provides revealing context for theotherwise cryptic qualifier in everycase: 'The onlyfeature in thetransaction to which blameis attached,"the Courtexplained, "is the attemptof a father-in-lawto concealthe forgeriesof a son-in-law,by paying off the notes he had forged."See also Haupt v United States,330 US 631, 64142 (1947) (holdingin a treasonprosecution that [i]t was forthe juryto weighthe evidencethat the acts proceededfrom parental solicitude against the evidenceof adherence to theGerman cause" and thatthe jury could disbelieve defendant's contentionthat he 'merelyhad themisfortune to sirea traitorand all he didwas to act as an indulgentfather toward a disloyalson"). 221 MPC ? 223.4.

This content downloaded from 130.91.146.35 on Wed, 8 Oct 2014 19:25:29 PM All use subject to JSTOR Terms and Conditions 1998] TakingMotives Seriously 863 orderto assure that one who had a civil complaintfor damages against anothercould not be convictedof extortionfor threatening duringnegotiations to filea criminalcharge"-conduct "many regardas legitimatenegotiating tactics."222 Such a negotiatingploy would not be legitimateunder an evidentiaryanalysis.223 The purpose of the criminallaw is not principallycompensatory. It serves retributive,deterrent, inca- pacitative,and rehabilitativegoals that are not comparablywell served by monetary(let alone confidential)settlement between offenderand victim.Consequently, if we believethat all members ofthe communityhave a civicduty to reportcrime, then it cannot be morallyacceptable for a victimto offerto ignoreher obligation forpersonal gain -ven if that gain is in some sense compensa- tory.This is not to claimit makes no moraldifference whether B is A's victim(rather than a merewitness to A's crime)and is de- mandingarguably "reasonable" compensation (rather than an excessive "penalty").It is onlyto concludethat the differenceis not such as to make B's conductmorally justified. The factorsthe Model Penal Code identifiescan properlybe consideredmitigat- ing; theyshould not constitute an affirmativedefense. In contrastto the criminallaw, victimcompensation is the chiefpurpose of tortlaw. The evidentiarytest reinforcesthe in- tuitionthat B may threatento sue A unlessA compensatesB for the injuriesand losses that A has caused to B. Assume B files suit againstA. This actionis moral and lawfulon the presumption(step 3) thatB is motivatedby a goodfaith belief that he has a legallyenforceable claim fordamages againstA. Now consider the factthat B had offerednot to sue ifA paid B's damages.This evidenceis consistentwith the motivationwe previouslyascribed to B: eitherway, B's (morallyacceptable) objective is to be made whole.

Id at comment(f). 2 The ethicalrules governingattorney conduct likewise reveal such actionto be of questionablelegitimacy. The 1969 ModelCode ofProfessional Responsibility Disciplinary Rules providesthat "[a] lawyershall notpresent, participate in presenting,or threatento presentcriminal charges solely to obtainan advantagein a civilmatter." Model Code of ProfessionalResponsibility and Code of JudicialConduct DR 7-105A(ABA 1982). The 1983 Model Rules of ProfessionalConduct lack any such specificproscription. Instead, theygenerically bar criminalconduct "that reflectsadversely on the lawyer'shonesty, trustworthinessor fitnessas a lawyerin otherrespects." Model Rules ofProfessional Con- ductRule 8.4(b) (ABA 1983). As a result,threatening to filea criminalcomplaint would constitutean ethicalviolation only in jurisdictionswhere it wouldviolate the criminal law.

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5. Publicinterest blackmail. The typicalblackmailer demands fromhis victima cash paymentto whichhe has no legitimateclaim. But the blackmailerneed not demandmoney. Nor need he even seek private advantage(narrowly defined). A recurringquestion, accordingly, is whetherblackmail should be criminalizedwhen the blackmailer'sostensible objective is a public,rather than private, good. Underthe evidentiary approach, the answeris clear:it depends. We can solvethe puzzle of "publicinterest blackmail" by ex- aminingwhat is presumedto be one of the mostcommon blackmail threats,"homosexual blackmail."224 Assume B threatensto exposeA's homosexuality(or homosexualacts) unlessA pays B $1,000.This is an unproblematiccase ofcriminal blackmail. And quick applicationof the evidentiarytest explainswhy. The key (step 3) is to identifythe morallyjustifying reasons B mighthave forexposing A. Differentobservers will have widelydiffering intuitionsregarding which reasons do in factsupply moral justificationfor outing A. Mostpersons, I suspect,would recognize few if any motivesas morallylegitimate beyond protecting a benightedspouse or suitor.Others might endorse a moregeneral interestin exposinghomosexuals, perhaps as a meansto discour- age homosexualactivity.225 B's conditionaloffer of silence (step 4) shouldhave evidentiarysignificance to individualswho fall near eitherpole, however. B's willingnessto remainsilent for personal gain suggeststhat his motivesfor exposing A wouldsatisfy nei- therthe socialliberal nor the cultural conservative. The publicinterest variant on homosexualblackmail arises whenB threatensto out A unlessA takes some specifiedaction favorableto homosexualinterests. Imagine that a gay rightsor- ganizationthreatens to out a closetedgay Congressmanunless he abandonshis supportfor anti-gay legislation.226 Under an eviden-

Forevidence regarding the possibly great frequency of such threats, see Posner,141 U Pa L Revat 1843n 47 (citedin note2). = Some peoplemight conclude that outingis categoricallyunjustifiable. This view does not,however, undermine the evidentiary theory. One whobelieves there are no morallyacceptable reasons for exposing an individual'shomosexuality should, I submit,favor makingouting illegal (on the secondor thirdcriteria of criminalization).They can then approvecriminalizing homosexual blackmail on the groundsthat it is (or shouldbe) simple extortion. T In thesummer of 1996,the Advocate, a gay-orientednational magazine, threatened to outArizona Congressman James Kolbe because of his supportfor the Defenseof Mar- riageAct, which provides that states need not recognize same-sex marriages performed in anotherstate. Kolbe preempted the Advocate by announcing his homosexualityin advance ofthe magazine. See JohnE. Yang,Rep. Kolbe Announces He Is Gay,Wash Post A8 (Aug 3, 1996).

This content downloaded from 130.91.146.35 on Wed, 8 Oct 2014 19:25:29 PM All use subject to JSTOR Terms and Conditions 1998] TakingMotives Seriously 865 tiary analysis,this proposal should be legal because the threat provideslittle support for an inferencethat, were the threateners to expose the legislator,they would do so withblameworthy motives.Again, the thirdand fourthsteps of the evidentiarytest explain this conclusion.Were the gay rightsactivists to out the Congressman,their likely motivation would be to expose the latter as a (probable)hypocrite and politicalopportunist.227 The activists'offer to keep the legislator'shomosexuality secret if he supportsgay politicalinterests is potentiallyconsistent with this hypothesis:the activists'(arguably) morally acceptable reason for outingthe legislatordisappears if the basis upon which voters mightsuspect the legislatorof hypocrisy is eliminated.This does notmean, however, that all blackmailputatively in the publicin- terestshould be permissible.If membersof Greenpeacewere to threatento out the same closetedCongressman unless he were to vote against NAFTA, then the blackmailers'belief that theyare furtheringthe public interestshould be legally irrelevant.The particularcontent of their offertends to discredit,rather than confirm,the suppositionthat theyharbor morally acceptable motivesfor exposing the politician'shomosexuality. This discussionreveals that Feinbergis only half rightin admonishingthat a coherentblackmail theory must survey"the various typesof threats in additionto threatsto reveal information;... the varioustypes of demands in additionto demandsfor moneyor property;and ... the varioustypes of means employed in additionto single-shotrandom opportunism."228 Threats, demands, and means all matter.But theymust not be assessed in isolation.The lesson ofpublic interest blackmail is that a threatener should not be entitledto escape a criminalprohibition on blackmailjust because he seeks to achieve what he mightrea- sonablybelieve is a publicinterest, rather than his own (narrow) self-interest.This is appropriate:a modern-dayRobin Hood wouldhave no defenseto chargesof burglary or robbery,and few would criticizethis result.Where the act threatened,y, and the conditiondemanded, x, would serve the same public interest,

I This was preciselythe rationaleespoused by the Advocate in the Kolbecase. See id. This is notto say the suspicionis correct.A homosexualpolitician can opposea piece of (ostensibly)gay-friendly legislation without being hypocritical,just as an African- Americanpolitician can withintegrity oppose legislationconsidered to benefitAfrican- Americansas a wholeor a Jewishpolitician can opposepolicies favorable to Israel. Indeed, BarneyFrank, an openlygay Congressmanfrom Massachusetts, declared that he ap- provesof outing "in cases ofgross hypocrisy," but did notthink Kolbe's was such a case. See Kolbe Won'tBe Gay Rights "PosterBoy", Worcester Telegram & Gaz A10 (Aug 4, 1996). ' Feinberg,Harmless Wrongdoing at 258 (citedin note2).

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6. Noninformationalblackmail. Blackmaildoes notinvariably involve a threatto discloseinformation.While cases ofnoninformational blackmail may be unusual, theyare not difficultto imagine.Professor Leo Katz has composeda varietyof examples: "Pay me $10,000, or I will seduce your fiance";"Pay me $10,000,or I will persuadeyour son that it is his patriotic dutyto volunteerfor combat in Vietnam";"Pay me $10,000, or I will give your high-spirited,risk-addicted 19-year-old daughtera motorcyclefor Christmas"; "Pay me $10,000,or I will hastenour ailingfather's death by leavingthe Catholic Church."229 As the evidentiarytheory explains, all ofthese threatsare clear cases ofcriminal blackmail. The acts threatenedin noninformationalblackmail, as in all blackmail,are perfectlylegal. But theyalso cause (or risk)cognizable harm.Indeed, three of the fourexamples above involve im- posingsubstantial risk of death upon another.Nonetheless, the acts themselvesare tolerated,perhaps encouraged,because we assume that the people who committhem have good reasonsto riskharm. The ordinaryassumption, for example, is thatwhen B encouragesA to enlist,she does so becauseshe believesthat it is A's dutyor thatA will profitfrom the experience.Here, as elsewhere,the conditionalthreat has evidentiarysignificance: B's of- fernot to encourageA to enlistif B receivesa suitableboon seems inconsistentwith our initial assumption.The offerreveals B's willingnessto riskA's death,and notfor good motives. Hence, the threatshould be made criminal. While the evidentiarytheory supports Katz's view that blackmailneed notbe a crimeof information,230 Katz's examples

Katz,141 U Pa L Revat 1567-68(cited in note92). Not everythingthat looks like noninformationalblackmail should be treatedas such.Nozick, among others, has drawnattention to a deceptivelytricky case: B's threatto builda structureon his land thatwill block the view of his neighborA, unlessA paysB $1,000.Nozick, Anarchy, State, and Utopiaat 84-85(cited in note2). Consistentwith the evidentiarytheory, B's proposalshould be criminal(assuming, counterfactually, that blockingA's viewis a legallycognizable harm) only if the offerhas substantialprobative weighttoward demonstrating that B wouldhave no actual,legitimate interest in building thestructure. But doesit? Is it notjust as likelythat B valuesthe structure, but at some- whatless than$1,000? And why are such structuresoften called "spitefences" (at least whenthey are, indeed, fences)? Doesn't this nomenclature suggest that, in thiscategory of

This content downloaded from 130.91.146.35 on Wed, 8 Oct 2014 19:25:29 PM All use subject to JSTOR Terms and Conditions 1998] TakingMotives Seriously 867 likewise supportthe claim of the evidentiarytheory that the threat has evidentiaryvalue only. Imagine this variation on Katz's last hypothetical:B leaves the CatholicChurch; B's father dies; B returnsto the CatholicChurch. Add a fewmore facts-a longhistory of animosity between B and her father,or a substantial inheritance- and the inferencethat B leftthe Churchpre- ciselyin orderto hasten her father'sdeath is easy to make. If so, B's actionsmight suddenly look like a rare (but potentiallyeffec- tive)method of homicide-murder by religiousconversion. At the same time,the blackmailthreat would no longerlook like a morally aggravatingfactor.23'

7. Bribery. A finalpuzzle is what ProfessorSidney DeLong calls the second paradoxof blackmail: why is a conditionaloffer that would be illegal if proposedby the blackmailerlegal ifinitiated by the victim?232DeLong locates the moral differencebetween blackmail and "bribery"(a proposalinitiated by a potentialblackmail victim) in the social meaningof the narrativesparadigmatic of the respectivetransactions. '[T]he purposeof the law of blackmail," DeLong proposesin a vein similarto Fletcher's,"is to protectthe communityagainst the conspiratorialagreement of blackmailer and victim,which isolates and subjectshim to a submissiverela- tionshipwith the blackmailer."233In contrast,"[t]hrough bribery, the victimtransforms the menace intoan ally whosecooperation preservesthe victim'splace in the largercommunity."234 No doubtthis explanation touches on one distinctionbetween blackmailand bribery.But it does notcut as forcefullyas DeLong suggests.After all, the briberrisks highlighting his vulnerability to disclosure,thereby increasing the riskthat the recipientof his bribe will returnfor more next time as a blackmailer.In any event,the "puzzle" DeLong seeks to solve is not verypuzzling. Briberyis legal because, ordinarily,there is not the slightestba- sis forcriminalizing it.

cases, the probabilitythat B wouldmake a conditionaloffer if actingfrom bad motivesis actuallyless thanif acting from good motives-thereby denying the evidentiary inference? See note179 and textaccompanying note 175. ' This conclusionshould not sound bizarre. Recall the robberwho says,"Your money or yourlife" to inducehis victimto hand overher money,and comparehim to the man whoapproaches a strangeron the street,pulls a gun,declares, "Your life," and shootshim dead. The robbercan onlybe convictedof robbery, the murderer of murder. "2DeLong,141 U Pa L Rev at 1663 (citedin note11). 2Id at 1691. 2Id at 1692.

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When the act the bribersolicits is itselfclearly wrongful, thereis nothingperplexing about makingthe bribeillegal and punishingboth the giverand the receiver-hencethe common law crimesof "bribery"(offering a governmentofficial payment forfavorable treatment) and "extortionunder color of publicof- fice"(solicitation or acceptanceby a publicofficial of payment).235 Similarly,the Model Penal Code makes it separatelycriminal bothto offerto pay a witnessto a crimeto remainsilent and for the witnessto accept such a payment.236Accordingly, the supposed puzzle of briberyarises onlywhen the moralcharacter of the act the bribersolicits is indeterminate-aswhen A offersB $1,000 forB's promisenot to tellA's wifeabout A's extramarital affair,or notto givea motorcycleto A's risk-addicteddaughter. In thesecases, the so-calledbribe is legal,and shouldremain so, because it satisfies neitherfundamental prerequisite for criminalization(under the thirdcriterion, at least). It inflictsno legallycognizable harm, and it reveals no morallyblameworthy motives.The briber'smotivation in each case is quite apparent, and is no differentfrom that of the driverwho parkshis car in a roughneighborhood and offersto pay someguys loitering nearby to "keepan eye on it."Blackmail is criminal,according to the evidentiarytheory, because the blackmailerthreatens an act that, were he to engage in it, would be blameworthy,harm-causing conduct.Bribery, on the otherhand, is lawfulbecause the briber seeks to stave offpotential harm (to himselfor to someoneelse) and becausehe maywell have morallyacceptable motives. All thatseems straightforward. The moredifficult question is whetherit shouldbe criminalto accept the bribe.If the nominal bribereally is just a payoffby a blackmailvictim to a blackmailer savvyenough to conveyhis threatby innuendo, there is no reason whythe law mustrespect the formal structure of the transaction; so longas a factfinderconcludes that the nominalbribe taker in- tendedto communicatea blackmailthreat, it is reasonableto treathim as a blackmailerand to punishhim accordingly. But whatif the idea ofthe bribereally did originatewith the maker?Here, the evidentiaryanalysis requires us to examinetwo questions:(1) does the bribetaker cause legallycognizable harm? and (2) ifso, does he have morallyblameworthy motives? Receipt ofbribes (outside of the special cases notedabove) is, and should

' See James Lindgren,The Theory,History, and Practice of the Bribery-ExtortionDis- tinction,141 U Pa L Rev 1695, 1698-1700 (1993). See also MPC ? 240.1. 'See MPC ?? 242.3, 242.5.

This content downloaded from 130.91.146.35 on Wed, 8 Oct 2014 19:25:29 PM All use subject to JSTOR Terms and Conditions 1998] TakingMotives Seriously 869 remain,lawful on an evidentiaryapproach because the answerto bothquestions is (ordinarily)no. Consideran earlierexample: B acceptsA's offerof $1,000 in exchangefor a promisenot to tellA's wifeof his infidelity.Disre- gardingthe payment,and ignoringcausation complicationssug- gested by the act/omissiondistinction, we mightagree that B "causes"A's wifeto (continueto) be deceivedas to her husband's faithfulness.This is probablynot legallycognizable harm. Even if it were, we would be compelledto examine B's motives.Why mightB refrainfrom speaking out? Morally blameworthy motives are imaginable-perhapsB takes pleasurein the knowledgethat A's wifehas been made an objectof ridiculein the community- but seemunlikely. Most probably, B acts outof a habitualdisincli- nation"to get involved."If pressedto explainhimself, though, he would probablyfirst invoke a general presumptionthat one should not undertaketo "do good"unless one can be reasonably confidentthat one's interventionwill producemore good than harm,then observe that he remainsignorant of too manypoten- tiallyrelevant factors to justify intermeddling. He mightwonder, "Isn't it possiblethat unmaskingA as an adultererwould serve principallyto cause A's wifesubstantial and unnecessarymental anguish?"This seems a whollymoral motivation for B's inaction: first,do no harm. Not much changes once we considerB's acceptanceof the payofffrom A. It is still likelythat B believesintermeddling is unjustified.He mightalso believe thatA is a cad (or worse).B's willingnessto profitat A's expensedoes notmake it substantially less likelythat B wouldhave remainedsilent even absenta payment,and thatin eithercase (paid or notpaid) his silenceis prin- cipallyanimated by a concernthat he notcause harm.One might propose,though, that B is nowcausing harm to A (ratherthan A's wife),and thathe does so withmorally blameworthy motives. But it is hard to see how B, by acceptinga paymentA voluntarily made, is causingA a "harm"with which the law shouldbe concerned.237In short,one who refrainsfrom the type of action a bribemaker might wish to forestallis not likelyenough to have (in)actedwith morally blameworthy motives as tojustify criminal punishmentin accord with the third criterion.This is true

"7It is fairto call A's payment"voluntary" in these circumstances.True, A would ratherB did notknow about his affair(in whichcase therewould be no reasonat all for himto pay B), but this factalone cannotsuffice to makeA's offer"involuntary" without makingthe concept of "voluntary" action all but meaningless.Recall thatif A's offeris in responseto B's hintedthreat of disclosure,A's offeris not voluntary,and B is properly treatedas a blackmailer.

This content downloaded from 130.91.146.35 on Wed, 8 Oct 2014 19:25:29 PM All use subject to JSTOR Terms and Conditions 870 The Universityof Chicago Law Review [65:795 whetheror notB has been offered,and has accepted,payment for forbearance.238

IV. IMPLICATIONS Blackmailis a seriouscrime. Moreover, it exertsa grasp on the popularimagination almost surelyout of proportionto its frequency.For thesereasons alone, seeking to explainand justify its criminalizationwould be a worthwhileendeavor. But thereis more,for those bitten by the blackmailbug have long suspected that a solutionto the blackmailpuzzle would help to resolve otherpuzzles both withinand beyondthe criminallaw.239 This Section exploresthat suspicionby offeringa few preliminary thoughtsregarding the evidentiarytheory's possible implications.

A. Motiveand Mens Rea in the CriminalLaw At firstblush, the evidentiarytheory might seem to suggest an answerto arguablythe mostprofound and persistentproblem plaguingcriminal theory-the "true" meaning of mens rea.240Al- thoughProfessor Francis Sayre concludedin his pathbreaking

This is a generalclaim. There may be contextsin whichthe bribetaker's inaction doescause legallycognizable harm and in whichthe fact of the bribe provides sufficiently strongcircumstantial evidence that the bribetaker's motives for inaction are morally blameworthyin orderto justifycriminalization. For example:A harmsC by publishinga defamatoryfalsehood. B is in possessionof information that disproves the defamatoryut- terance.It is plausiblethat B's failureto disclosethat information "causes" C legallycog- nizableharm. Nonetheless, uncertainty about B's reasonsfor remaining silent might be greatenough to counselagainst making B's silencecriminal. Naturally, B's silencewould be morallyjustifiable were he ignorantof the fact of the defamation, or ofthe exonerating characterof the information in his ownpossession. B's fearof retaliation by A mightalso make it morallyexcusable for B to remainmute. All of thesehypotheses, however, are stronglyundermined by the factof B's acceptanceof a payoffto remainsilent. Here, B's bribetaking does suggestselfish motives for engaging in knowingharm-causing conduct. Consistentwith the evidentiaryanalysis, then, this particulartype of bribe taking-the proverbialexception that proves the rule-could be madecriminal. In the (admittedlypartisan) estimation of Katz and Lindgren,"one cannotthink aboutcoercion, contracts, consent, robbery, rape, unconstitutional conditions, nuclear deterrence,assumption of risk,the greater-includes-the-lesserarguments, plea bargains, settlements,sexual harassment,insider trading, bribery, domination, secrecy, privacy, law enforcement,utilitarianism and deontologywithout being tripped up repeatedlyby theparadox of blackmail." Leo Katz andJames Lindgren, Instead of a Preface,141 U Pa L Rev 1565,1565 (1993). "See generallyMartin R. Gardner,The Mens Rea Enigma:Observations on theRole ofMotive in theCriminal Law Past and Present,1993 Utah L Rev635. See also id at 637 & n 5 (claimingthat "few conceptual pursuits in any area ofthe law have provenso be- guilingas the attemptto give an accurateaccount of the so-calledmental element re- quiredfor criminal liability"); Francis Bowes Sayre, Mens Rea, 45 Harv L Rev 974, 974 (1932) ("No problemof criminallaw is of morefundamental importance or has proved morebaffling through the centuries than the determination ofthe precise mental element or mensrea necessaryfor crime.").

This content downloaded from 130.91.146.35 on Wed, 8 Oct 2014 19:25:29 PM All use subject to JSTOR Terms and Conditions 1998] TakingMotives Seriously 871 early studythat the termembraced a wide multiplicityof mean- ings,24'it has becomecommon, at least since the AmericanLaw Institutecompleted its Model Penal Code over a generationago, to distinguishbetween two fundamentallydifferent conceptions. As ProfessorMartin Gardner succinctly put it in his exhaustive recentstudy: The firstand historicallyoriginal concept embodied an ex- plicitlynormative requirement that the offendernot onlyin- tentionallycommit a criminalact, but also do so out of evil motivation.The second and currentlymore predominant traditionadopts an essentiallynonnormative approach that findssufficient ground for liability in the presenceof par- ticularstates of mindwithout evaluating or even appealing to themotives underlying the offender'sactions.242 Plainly, the classical conceptionof mens rea-which Sayre equates with "little more than a general immoralityof motive"243-closelyapproximates, or even mirrors,the notion of moral blameworthinessthat underpinsthe evidentiarytheory. Accordingly,insofar as the evidentiarytheory's utility in solving the blackmailpuzzle amountsto a powerfulpragmatic vote in supportof my thirdcriterion of criminalization,it mightweigh equally heavilyin favorof the classical understandingof mens rea. This wouldbe ofmore than theoreticalinterest. It is a com- monplaceassertion that therecan be no crimeabsent the coincidence ofactus reus and mens rea.2" If mens rea "really"requires moralblameworthiness, tangible consequences must follow-such

24'See Sayre,45 HarvL Rev at 1026 (citedin note240) (concludingthat "[t]he old conceptionof mens rea mustbe discarded,and in its place mustbe substitutedthe new conceptionof mentes reae"). "2 Gardner,1993 Utah L Rev at 640 (citedin note240). 23 FrancisBowes Sayre, The Present Signification of Mens Rea in theCriminal Law, in Roscoe Pound,ed, Harvard Legal Essays 399, 411-12 (Harvard 1934). See also United States v Thomas,459 F2d 1172, 1176-77(DC Cir 1972) (discussingthe necessityof a requirement"beyond a mereintentional ... act,one involvingevil intentor a bad purpose' in jury instructions);Mullen v UnitedStates, 263 F2d 275, 276 (DC Cir 1959) (defining mens rea as "evilstate ofmind"); Sayre, 45 Harv L Rev at 1019 (citedin note240) (observingthat as late as themid-nineteenth century, "the conception of mens rea was based largelyon moralblameworthiness"). For an argumentthat Sayre overstatesthe significance ofmotive in the earlyconceptions, see Hall, GeneralPrinciples at 138-49(cited in note150). Considerthe oft-quoted maxim frequently traced to Coke,actus non facit reum, nisi menssit rea. See EdwardCoke, The ThirdPart of theInstitutes of theLaws of England *107 (1641). The translationis "an act does not make [the doerof it] guilty,unless the mindbe guilty;that is, unlessthe intention be criminal."Black's Law Dictionary36 (West 6thed 1990).

This content downloaded from 130.91.146.35 on Wed, 8 Oct 2014 19:25:29 PM All use subject to JSTOR Terms and Conditions 872 The Universityof Chicago Law Review [65:795 as abolitionof strictliability crimes and recognitionof an igno- ranceof law defensefor all mala prohibitacrimes.245 On reflection,though, it is doubtfulwhether the evidentiary theoryalone has anythingof importance to say about mens rea. The evidentiarytheory appears to demonstratethat the factthat particularconduct ordinarily causes harm and reflectsmoral blameworthinessconstitutes a primafacie justification for criminalization.However, it does notdemonstrate that the coincidence ofthese conditions is necessaryfor particular conduct to be criminalized. More likely,all threecriteria are valid bases forcriminalization.Moreover, even whencriminalization of conduct is justifiedon the strengthof the thirdcriterion alone, moralblame- worthinessis still not necessarilyrequired to justifyimposing punishmentin a givencase. To be sure,if the third criterion rests on a retributivistgeneral justifyingaim, then no individual shouldbe punishedunless he is morallyblameworthy for his offense.As H.L.A. Hart noted,retributivism in generaljustifying a entails retributivismin distribution.2'But it is not certain that the thirdcriterion does rest on a retributivistfoundation. Whilea retributivistjustifying aim wouldalmost certainly yield thethird criterion or somethingvery much like it,so mighta consequentialistjustifying aim.247 And if criminalizing(ordinarily) blameworthy,harm-causing conduct is justifiedon consequentialistgrounds, then the proprietyof punishing one whoviolates theresulting criminal prohibition but is notmorally blameworthy himselfmust remain an open question,dependent more upon contestableempirical assumptions than on logicaldeduction. It seems,in short,that cautionis warrantedwhen assessing the significanceof the evidentiarytheory for criminal law in general. The instant solutionto the blackmailpuzzle (if correct) mightentail the classical conceptionof mens rea, but it might not. This is not the end of the matter,however, for at least one implicationof the evidentiarytheory is clear. Contraryto the fa- miliarcontention that "motiveis immaterialin the substantive criminallaw, "248 1a motive has substantialrelevance. First, as the equallyfamiliar objection to thiscontention observes, the motives ofan individualdefendant can provecritical for the satisfactionof

X Fora thoughtfuldiscussion of the implications of the classical conception, see H.L.A. Hart,23 Law & ContempProb at 412-27(cited in note142). H.L.A.Hart, Punishment and Responsibilityat 9 (citedin note134). See note142. 2 See note 144. 'Wayne R. LaFave and AustinW. Scott,Jr., Criminal Law 227 (West2d ed 1986).

This content downloaded from 130.91.146.35 on Wed, 8 Oct 2014 19:25:29 PM All use subject to JSTOR Terms and Conditions 1998] TakingMotives Seriously 873 various af ative defenses or for purposes of sentencing.249 Moreover,as the evidentiarytheory reveals, the criminallaw does seem to care at least sometimes about the motivesof the class of potentialdefendants as a whole. Previous effortsto resolve the blackmailpuzzle reflectone or the otherof the custom- arily competingjustifications for the state to criminalizeconduct-that the conductreduce utility (or its roughproxy, wealth), or that it be inherentlywrongful. The conspicuouslesson of the evidentiarytheory is to focusnot on consequences,nor on acts, but on actors(at least at the stage ofoffense definition, if not nec- essarilywhen assessing liability).If criminallaw theoriststake this simplelesson seriously,I believe,the instantproposed solutionto the blackmailpuzzle will indeedfacilitate a deeperunder- standing of the criminallaw and might resolve a variety of seeminglyintractable puzzles.

B. GovernmentalMotives: Understanding Unconstitutional Conditions One concreteexample of the evidentiarytheory's potential relevance,outside the criminallaw, is providedby the so-called unconstitutionalconditions doctrine-that is, the question of whenit shouldbe unconstitutionalfor a governmentto condition a benefitit is not compelledto provideon the recipientrelin- quishing a constitutionalright. Although governments attempt this maneuverfrequently and in manycontexts, courts have yet to provideclear rules forwhen the principlethat a state may not do indirectlywhat it is prohibitedfrom doing directlyshould trumpthe principlethat the greaterpower (to withholdthe bene- fitentirely) includes the lesser power(to grant it on condition). Enormousscholarly commentary on the subjecthas not clarified matters.250While scholarswidely agree that the conditionalten-

"9Thetraditional view regardingmotive is challengedin Douglas N. Husak, Motive and CriminalLiability, 8 CrimJust Ethics 3 (Winter/Spring1989) (notingthe familiar qualificationsregarding the roleof motive in sentencingdecisions and the significanceof specificintent crimes, and arguingthat an actor'smotives are also centralto thecriminal law's treatmentof euthanasia, justification, and someexcuses). Although a valuable con- tributionin its ownright, Husak's essay is betterread to initiatea debatethan to offera well-developedcompeting vision of the role ofmotive in the criminallaw. Unfortunately, Husak's conclusionthat "muchimportant work ... remainsto be done"respecting "the significanceof motives to criminalliability," id at 12, is as apt nowas it was nearlya decade ago. 2"Amongthe most illuminatingcontributions are Sullivan, 102 Harv L Rev 1413 (cited in note 130); RichardA. Epstein,Foreword: Unconstitutional Conditions, State Power,and theLimits of Consent, 102 Harv L Rev 4 (1988); Seth F. Kreimer,Allocational Sanctions:The Problemof NegativeRights in a PositiveState, 132 U Pa L Rev 1293 (1984); WilliamVan Alstyne,The Demise of theRight-Privilege Distinction in Constitu-

This content downloaded from 130.91.146.35 on Wed, 8 Oct 2014 19:25:29 PM All use subject to JSTOR Terms and Conditions 874 The Universityof Chicago Law Review [65:795 derof governmental benefits should sometimes be heldlegitimate and sometimesunconstitutional, there is almost universaldis- agreementover where and whyto drawthe line. The evidentiarytheory of blackmail suggests an obviousanswer:motive matters. Although it is sometimessaid thatthe mo- tivesbehind state actionare constitutionallyirrelevant,25' that is a demonstrablemisstatement of existing constitutionaldoc- trine.252In severaldisparate areas ofthe law, a "bad"governmental motivewill proveper se fatal to state action.253In various othercontexts, a bad motivewill provoke strict scrutiny.2" Whena constitutionalviolation (or levelof scrutiny) turns on governmentalmotive, the plaintiffshoulders the burdenof proving that it was illegitimate.In theory,this difficulttask can be accomplishedin severalways.255 Assume, for example, a nonten- ured publicschool teacher is fired,and thatthe teachersuspects tionalLaw, 81 Harv L Rev 1439 (1968); RobertL. Hale, UnconstitutionalConditions and ConstitutionalRights, 35 ColumL Rev321 (1935). 2 See, forexample, United States v O'Brien,391 US 367,383-84 (1968); Alexander M. Bickel,The Least DangerousBranch: The SupremeCourt at theBar ofPolitics 208 (Yale 1962). "For a recentthoughtful rumination on therelevance of motive in publicand private contexts,see LaurenceH. Tribe,The Mysteryof Motive, Private and Public:Some Notes Inspiredby the Problems of Hate Crimeand AnimalSacrifice, 1993 S Ct Rev 1. The classic argumentsregarding the proper significance, for constitutional law, ofstate actors' moti- vationsare Paul Brest,Palmer v Thompson:An Approachto theProblem of Unconstitu- tionalLegislative Motive, 1971 S Ct Rev95; JohnHart Ely,Legislative and Administrative Motivationin ConstitutionalLaw, 79 Yale L J 1205(1970). For example,governmental action motivated to disadvantagea protectedclass will violate the Equal ProtectionClause. See PersonnelAdministrator of Massachusettsv Feeney,442 US 256, 279 (1979).Action motivated to advancereligion violates the Estab- lishmentClause. See Stonev Graham,449 US 39, 40-41(1980). Similarly, action by any of the severalstates runs afoul of the DormantCommerce Clause ifundertaken for protec- tionistpurposes. See Baldwinv GAF Seelig,Inc, 294 US 511,522 (1935).And civil incar- cerationanimated by a punitivepurpose might violate constitutional protections against doublejeopardy and ex post factolaws. See Kansas v Hendricks,117 S Ct 2072, 2090 (1997) (Breyerdissenting) (noting that althoughthe majorityfound that Kansas's civil commitmentlaw was notpunitive, "[t]he majority agrees that the [Ex Post Facto]Clause 'forbidsthe application of any new punitivemeasure to a crimealready consummated'), quotingCalifornia Deptartment of Corrections v Morales, 514 US 499,505 (1995). 'Under rapidlychanging voting rights jurisprudence, for example, the courtsapply strictscrutiny to redistrictingdecisions when the linedrawersappear to have "subordi- nated"other, legitimate districting principles to race. See Bush v Vera,116 S Ct 1941, 1951 (1996). See also id at 1972-73(Thomas concurring) (arguing that strictscrutiny should apply wheneverredistricters consider race). Likewise,under ordinaryFirst Amendmentdoctrine, facially neutral laws are subjectedto strictscrutiny if adoptedfor the purposeof favoring or disfavoringspeech of a particularcontent. See TurnerBroad- castingSystem v FCC, 512 US 622, 641-42,645-46 (1994); Harry T. Edwardsand Mitchell N. Berman,Regulating Violence on Television,89 Nw U L Rev 1487,1512-13 (1995) (dis- cussingthis aspect of Turner). See Villageof Arlington Heights v MetroHousing Development Corp, 429 US 252, 265-68(1977).

This content downloaded from 130.91.146.35 on Wed, 8 Oct 2014 19:25:29 PM All use subject to JSTOR Terms and Conditions 1998] TakingMotives Seriously 875 she was terminatedbecause of the schoolboard's hostility to her communistsympathies. It is well settledboth that her termina- tion would violate the First Amendmentif it were so motivated and thatthe burdenrests on the teacherto establishthat motivation.256The teachercould satisfyher burden(thus shiftingto the school the burdento demonstratethat it would have firedthe teacher notwithstandingher political leanings) in numerous ways. She could hope to relyon statisticalevidence of fiings by the schoolboard of othercommunist teachers that shows a dra- maticcorrelation between a teacher'spolitics and herjob history. Or she could introduceminutes from a schoolboard meetingin whichboard membersexpressed hostility to her because of her political views. Alternativelyor additionally,she could testify thather schoolprincipal offered to renewher contract,but onlyif she resignedher positionon the board of the AmericanCommu- nist Party.This examplesuggests that a governmentalcondition is just anotherpiece of circumstantialevidence that mighthelp establishmotive in a givencase. Accordingly,an evidentiaryanalysis mightresolve the unconstitutionalconditions doctrine as follows:if and only if the particularcondition ("resign from position in communistorgani- zation")appears sufficientlyinconsistent with any of the permissible reasons the state mighthave forwithholding the benefitat issue (that the teacher'sjob performancewas unsatisfactory,or that the schoolwas eliminatingthe teacher'sposition for budget- ary or curricularreasons), then the fact of the offersupports a presuimptionthat the state's (but-for)motive for withholding the gratuitousbenefit was improper,257in which event the courtis re- quiredeither to holdthe state actioninvalid per se or to subjectit to the appropriatelevel ofheightened scrutiny. Indeed, this solution closelyapproximates that advanced over sixtyyears ago by

'See, forexample, Mt. HealthyCity School District v Doyle,429 US 274, 287 (1977); Perryv Sindermann,408 US 593, 598 (1972). "7Asin the blackmailcontext, the inferenceis not ironclad.In the terminationcase, the state could argue that it terminatedthe teachersolely because of her poorjob performance.It couldthen try to explainaway the conditionaloffer of continued employment by arguing,say, that the teacherwas ill-preparedfor class and chronicallyovertired, that the schoolboard suspectedthese problemswere due to the factthat she devotedmany hourseach day to her officershipin the Communistparty, and that,because she showed promiseas a teacher,the board was willingto giveher a secondchance if they could have adequate confidencethat she would devote sufficienttime to her teachingduties. Of course,a comparableargument intended to rebutthe inferenceof bad motiveis notopen to the ordinarydefendant in a blackmailprosecution. Whether it shouldbe available to the governmentin an unconstitutionalconditions case dependsupon whether the inquiry intomotives is made ex postand particularisticor (as in the blackmailsituation) ex ante and categorical-aquestion beyond the scope of the presentdiscussion.

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ProfessorRobert Hale.258Unfortunately, though, subsequent commentatorshave eitheroverlooked or misunderstoodHale's analysis.259The evidentiarytheory suggests that attentionto Hale's thesis mightprove profitable if we can articulatemore preciselythan Hale did how the notionsof "germaneness"and 'impermissiblemotive" can do real work.Because the governmental proposalinvolved in cases in whichthe doctrinemight applyshares the double conditional form of all blackmailproposi- tions (if x then -y; if -x theny), the evidentiarytest will be of promisingutility in resolvingthe mysteryof unconstitutional conditions.

CONCLUSION It is a safe bet that blackmail'scriminalization does not appear puzzlingto the casual observer.Not onlydoes it resemble

Hale beginsby insisting that "there is no logicalincongruity in holdingthat the validityof a state'sexercise of power may depend upon the purposefor which it is exerted; thata powerwhich is validwhen exerted for most purposes may be invalidwhen exerted forothers." Hale, 35 ColumL Rev at 322 (citedin note250). After examining a hostof unconstitutionalconditions cases, he opinesthat, when 'determining the validity of a condi- tionalburden," the Supreme Court would likely be influenced"by its viewsas to whether or notthe condition is germaneto thepurpose for which the governmentmight normally imposethe burden, without conditions." Id at 352. 9The mostthorough critique of Hale's argumentcomes from Sullivan. Her analysis proceedsin threesteps. First, she demonstratespersuasively that heightened scrutiny is not invariablyappropriate whenever government attaches a conditionto a gratuitous benefitthat is not germaneto the legitimatepurposes the governmentmight have for withholdingthe benefit categorically and unconditionally.See Sullivan,102 HarvL Revat 1461n 196 (citedin note130). Second, she assertsthat because germaneness per se is not dispositive,"[s]ome theory of appropriate legislative process would seem necessary to explain"attention to the "germaneness"of governmental conditions. Id at 1468.Third, she canvassesthe threeprincipal contending theories of legislativeprocess-interest group pluralism,civic republicanism, and publicchoice-en routeto arguingthat each either failsto explainany concernwith gerrnaneness of conditionsand benefitsor reflectstoo tenuousa relationshipto unconstitutionalconditions problems to be useful.Id at 1468-76. The upshotis that"germaneness theories fail to resolveunconstitutional conditions problems."Id at 1476. Sullivan'sanalysis suffers from two defects. First, it restson an ungenerousreading of Hale. AlthoughHale couldno doubthave been clearer, he is betterunderstood, I think, to recognizethat it is illegitimacyof governmentalpurpose, not nongermanenessbetween conditionand benefitper se, thatraises constitutional problems. Lack ofgermaneness is significantonly insofar as it oftenallows courts to inferthat the legislature was motivated byillegitimate purposes. Second, even if this were not Hale's view,it is one thatdeserved consideration.As notedabove, see notes250-59 and accompanyingtext, existing constitu- tionaldoctrine identifies some governmental motives as substantivelyillegitimate (abso- lutelyor presumptively)without itself resting upon any particularmodel of normative governmentalprocess. Sullivan's critique of Hale is infirmbecause it nevergives adequate attentionto the theory that some governmental motives are simplyillegitimate (no matter the legislativeprocess that effectuates them), and that nongermaneconditions are useful-thoughnot dispositive-toolsfor identifying when such impropermotives were at work.

This content downloaded from 130.91.146.35 on Wed, 8 Oct 2014 19:25:29 PM All use subject to JSTOR Terms and Conditions 1998] TakingMotives Seriously 877 othervarieties of theft, the criminalizationof which rarely raises eyebrows,but blackmailjust smells likes a nastypractice. Theo- ristsfrom a wide range of disciplines,however, have long identi- fieda puzzle-that it is illegal to threatenwhat it is legal to do- and have workedvigorously to proposesolutions. Those solutionshave been oftwo broad types. Some scholars, includingmany of a law and economicsbent, have proposedthat tolerationof blackmail would producea varietyof adverse social consequencesnot arising in a regime that permitsthe acts a blackmailerthreatens. Other writers,more deontologicallyin- clined, have argued that the blackmail threat is inherently wrongfulin a way that the acts threatenedare not.But all extant theoriessuffer from serious failings.Blackmail does not always producethe consequencesthat the firstset of theoristsallege, and claimsabout the moraldifference between blackmail threats and the acts threatenedprove unconvincing. This Articlehas originatedfrom a whollydifferent perspective. Whereas prior theories have proceeded on the express premise,or implicitassumption, that criminalizingparticular conductis justifiedon one oftwo competing grounds eitherthat it yieldsnet adversesocial consequencesor thatit is wrongin itself-this Articlehas supposedthat criminalizationof conductis primafacie justified when it is likelyto cause harmand to be undertakenby a morallyblameworthy actor. This simple proposition,which might rest on eitherconsequentialist or retributivist conceptions(or both) of the generaljustifying aim of the institution of criminalpunishment, explains why blackmail is criminal even thoughthe acts a blackmailerthreatens are not. It is probable that one who simplyundertakes an act of the sort a blackmailermight threaten lacks morallybad motives.Therefore, the unconditionalact should not be criminal.But more evidence mightwarrant a differentconclusion. In particular,it is probable that one who undertakesthe same act, but onlyafter offering to foregothe act if paid, acts withbad motives.The threathas evidentiarysignificance: if the actorhad good motivesfor engaging in the act, he likelywould nothave offeredhis abstention.If this inferenceis sound(and its strengthwill vary depending upon the totalityof circumstances), then this particularact could be made criminalas harm-causing,morally blameworthy conduct. And blackmail-the threat to commit a harm-causing,morally blameworthyact-could be criminalizedtoo. The two fundamentalbases of the evidentiarytheory, then, are these:(1) motivesmatter, and (2) conditionalthreats can offer powerful(albeit not conclusive)circumstantial evidence of im-

This content downloaded from 130.91.146.35 on Wed, 8 Oct 2014 19:25:29 PM All use subject to JSTOR Terms and Conditions 878 The Universityof Chicago Law Review permissiblemotive. By employingthese two principles,this Arti- cle has attemptedto resolveone stubbornpuzzle ofthe law. That is, it has soughtto explainand to justifythe criminalizationof "core cases ofblackmail, as well as to suggesta reconsideration of the contoursof the crime.Finally, it also has providedsome reason forhope that the principlesunderlying the evidentiary theorymight (whether singly or in tandem)have broadexplana- toryreach both within and withoutthe criminallaw.

This content downloaded from 130.91.146.35 on Wed, 8 Oct 2014 19:25:29 PM All use subject to JSTOR Terms and Conditions