Document Type

Article

Publication Title

University of Chicago Law Review

Abstract

Although the crime of blackmail seldom has been the subject of appellate litigation, it has received an extensive analysis within the scholarly literature.1 It might be expected that this analysis would focus upon the traditional concerns of criminal law: mens rea, permissible defenses, burdens of proof, and modes of sentencing. But in fact the query has been posed at a far more fundamental level: why is blackmail a crime at all? The frequent appearance of this question is troublesome, for it implicitly identifies a powerful cleavage between our most cherished instincts about criminal responsibility and our collective ability to justify them, even to ourselves. To be sure, the failure to come up with a well-accepted account of why blackmail is both wrong and criminal has not yet had any practical consequences, for to date no legislature or judge has sought to remove blackmail from the list of criminal offenses. But at the same time, it would surely count as a welcome step toward public understanding if we could explain first, why intellectual doubts over the criminal nature of blackmail persist, and second, how to resolve those doubts in favor of the popular sentiment for its criminality, a sentiment that in my view rests on far firmer foundations than has generally been appreciated.

First Page

553

DOI

https://doi.org/10.2307/1599502

Volume

50

Publication Date

1983

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