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Abuse Of Property Right Without Political Foundations: A Response To Katz, Mitchell N. Berman
Abuse Of Property Right Without Political Foundations: A Response To Katz, Mitchell N. Berman
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In an article recently published in the Yale Law Journal, Larissa Katz defends a heterodox principle of abuse of property right pursuant to which an owner abuses her rights with respect to a thing she owns if she makes an otherwise permitted decision about how to use that thing just in order to harm others, either out of spite, or for leverage. Katz grounds that principle in a novel theory of the political foundations of the institution of property ownership. This essay argues that Katz’s political theory is implausible, but that this should not doom her preferred principle of …
Competing Theories Of Blackmail: An Empirical Research Critique Of Criminal Law Theory, Paul H. Robinson, Michael T, Cahill, Daniel M. Bartels
Competing Theories Of Blackmail: An Empirical Research Critique Of Criminal Law Theory, Paul H. Robinson, Michael T, Cahill, Daniel M. Bartels
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Blackmail, a wonderfully curious offense, is the favorite of clever criminal law theorists. It criminalizes the threat to do something that would not be criminal if one did it. There exists a rich literature on the issue, with many prominent legal scholars offering their accounts. Each theorist has his own explanation as to why the blackmail offense exists. Most theories seek to justify the position that blackmail is a moral wrong and claim to offer an account that reflects widely shared moral intuitions. But the theories make widely varying assertions about what those shared intuitions are, while also lacking any …
Meta-Blackmail And The Evidentiary Theory: Still Taking Motives Seriously, Mitchell N. Berman
Meta-Blackmail And The Evidentiary Theory: Still Taking Motives Seriously, Mitchell N. Berman
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For generations, criminal law theorists, moral and political philosophers, and economists have struggled to resolve one of the law's great puzzles: whether, why, and under what circumstances the law should criminalize the conditional threat to do what is lawful. This is the so-called paradox of blackmail. Although libertarians have insisted that blackmail should be lawful, most commentators agree that at least some forms of blackmail are properly criminalized, disagreeing over the proper rationale. In his provocative article, Meta-blackmail, Russell Christopher presents a wholly novel argument in support of the libertarian conclusion. Christopher's argument relies upon the imaginary device of a …
Truth And Consequences: The Force Of Blackmail's Central Case - Draft - 05-05-1993, Wendy J. Gordon
Truth And Consequences: The Force Of Blackmail's Central Case - Draft - 05-05-1993, Wendy J. Gordon
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Blackmail commentary continues to multiply. The purpose of this paper is to show what we agree on. Its primary tool will be to define what I call the "central case" of the blackmail literature, and to supply the connecting links that will allow us to see how the various theories converge where central-case blackmail is involved. Among other things, I will show how the deontological and consequentialist (economic) approaches converge in condemning central-case blackmail, and I will defend the criminalization of such blackmail.
Truth And Consequences: The Force Of Blackmail's Central Case, Wendy J. Gordon
Truth And Consequences: The Force Of Blackmail's Central Case, Wendy J. Gordon
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Blackmail commentary continues to proliferate. One purpose of this paper is to show what we agree on. Its primary tool will be to define what I call the "central case" of blackmail literature, and to supply the connecting links that will allow us to see how various normative theories converge in condemning central case blackmail. Admittedly, the law criminalizes more than my central case. But once we recognize that the central case is neither puzzling nor paradoxical, it may be easier to handle the border cases that arise.
Truth And Consequences: The Force Of Blackmail's Central Case - Draft - 1/11/1993, Wendy J. Gordon
Truth And Consequences: The Force Of Blackmail's Central Case - Draft - 1/11/1993, Wendy J. Gordon
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Blackmail commentary continues to multiply. The purpose of this paper is to show what we agree on. Its primary tool will be to define what I call the "central case" of the blackmail literature, and to supply the connecting links that will allow us to see how the various theories converge where central-case blackmail is involved. Among other things, I will show how the deontological and consequentialist (economic) approaches converge in condemning central-case blackmail, and I will defend the criminalization of such blackmail.
Truth And Consequences: The Force Of Blackmail's Central Case - Draft - 01-10-1993, Wendy J. Gordon
Truth And Consequences: The Force Of Blackmail's Central Case - Draft - 01-10-1993, Wendy J. Gordon
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The doctrine of double effect (DDE) and my suggested correlative, the doctrine of single effect (DSE), suggest that no significance should be given to either the lawful nature of the threat or the potentially beneficial side-effects of blackmail. Under DSE, the blackmailer violates deontological constraints if he threatens disclosure in an intent to obtain money or other advantage because, inter alia, were he to have alternative threats available he would threaten anyway. The nature of the threat is outside the intent of the blackmailer in the same way the killing of civilians is outside the intent of the strategic bomber. …
Truth And Consequences - Draft - 01-07-1993, Wendy J. Gordon
Truth And Consequences - Draft - 01-07-1993, Wendy J. Gordon
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Rather, he seeks to extract something from the victim that is properly the victim's, usually money, or to make the victim do something (e.g., sleep with him) that is ordinarily a behavior that the victim is at liberty not to engage in. The missing "rights" that Murphy seeks are therefore present and fairly uncontroversial: the rights not to have one's goods intentionally taken, or have one's liberty intentionally infringed, without justification. It is irrelevant whether or not it would be proper for the blackmailer to disclose the information, and thus destroy something the victim may value at a price even …
Truth And Consequences: The Force Of Blackmail's Central Case - Draft - 01-04-1993, Wendy J. Gordon
Truth And Consequences: The Force Of Blackmail's Central Case - Draft - 01-04-1993, Wendy J. Gordon
Scholarship Chronologically
Blackmail commentary continues to multiply. The purpose of this paper is to show what we agree on. Its primary tool will be to define what I call the "central case" of the blackmail literature, and to supply the connecting links that will allow us to see how the various theories converge where central-case blackmail is involved. Among other things, I will show how the deontological and consequentialist (economic) approaches converge in condemning central-case blackmail, and I will defend the criminalization of such blackmail.
Truth And Consequences: The Force Of Blackmail - Outline - 01-02-1993, Wendy J. Gordon
Truth And Consequences: The Force Of Blackmail - Outline - 01-02-1993, Wendy J. Gordon
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This paper: To show what we agree on by explication of the deontologic justification for blackmail prohibitions. In the process· to make the deontologic nature of bmail clearer; to show how the deont & consequentialist approaches agree on the central case; to defend the criminaliz of the central case in liberal (non-libertarian) terms; to provide some tentative observations on the non-central cases
Norms Of Pride And Resistance: Psychology, Virtue, And The Blackmail Puzzle - Draft - 12-31-1992, Wendy J. Gordon
Norms Of Pride And Resistance: Psychology, Virtue, And The Blackmail Puzzle - Draft - 12-31-1992, Wendy J. Gordon
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Blackmail law can impact on the belief structures (moralisms) and behaviors of both the potential criminal and the potential victim; it also can affect the conceptual and value structures of lawyers and other societal onlookers. These issues surrounding what one might call the "symbolic" virtues of outlawing the act of blackmail may help to explain why blackmail law seems relatively unconcerned with the well-being of the victim.