A Patchwork Theory of Blackmail
Scott Altman · University of Pennsylvania Law Review · 1993
ScoTr ALTMANtBlackmail poses many puzzles.Several legal divergences need justification.Demanding payment not to disclose embarrassing information is usually a crime, 1 yet it is lawful to disclose such information and to demand payments for other forbearances.Parallel puzzles concern a moral divergence.Demanding payment not to disclose embarrassing information is a serious prima facie moral wrong, yet disclosing the information is often acceptable or only moderately immoral. 2 Further, some people want justifications that account for the widely held intuition that blackmail wrongs its victim, not just society or particular third parties.Justifying the moral and legal divergences implicates other controversies.We do not agree on what constitutes immorality, or about what justifies criminal sanctions.Thoroughgoing utilitarians write about whether permitting blackmail would reduce misallocation of resources.From their perspective, answering this question might resolve the legal and moral puzzles.But from many perspectives this question seems marginal.Inefficiency is grounds neither for condemnation nor for punishment.Nonetheless, everyone can benefit from dialogue.That people who disagree about many legal and moral questions usually favor punishing blackmailers suggests room for overlapping consensus on this issue.