Profs. Paul Robinson, Michael Cahill, and Daniel Bartels

The crime of blackmail prohibits the threat to take an action that in itself is not a crime. In this Article, Professors Robinson, Cahill, and Bartels attempt to determine whether any of the proposed theories of this paradoxical crime or its current statutory formulations accord with popular moral judgment, which is derived from the results of an empirical study.

For example, one proposed theory is that the wrongfulness of blackmail depends on the wrongfulness of the threatened act. Although this theory comes close, it does not match the results of the empirical study in every case, specifically when it suggests punishing culpable intention that is otherwise authorized. The authors also analyze whether current statutory formulations of the blackmail offense generate results that adhere to, or deviate from, the layperson’s moral sentiment. Of existing legislation, the Model Penal Code offers the best fit with lay intuitions.

To improve this fit, the authors propose a novel statutory formulation that incorporates the best theoretical explanation into the Model Penal Code’s current text. The resulting formulation reflects popular moral judgment but prevents blackmail from becoming a purely subjective offense of culpable intention, detached from objective harm. The authors suggest by way of conclusion that further empirical work can meaningfully illuminate other areas of criminal law theory. But perhaps some areas of the law, such as blackmail, are overtheorized. Rather than add another layer of theory, the more useful course might be “simply asking people what they think.”