The October 19, 2009 issue of The New Yorker had an interesting little “Talk of the Town” item byLizzie Widdicombe on the whole David Letterman blackmail issue. Northwestern Law School’s JamesLindgren (unfortunately not a ContractsProf) wonders why blackmail is acrime. I think the Letterman version of Lindgren’s hypothetical would run something like this: Suppose Joel Halderman, the allegedLetterman blackmailer, had written a screenplay that would have exposedLetterman’s penchant for sexual liaisons with his employees. Suppose Letterman had learned of thescreenplay, perhaps because Halderman arranged for him to see it, and offeredHalderman $2 million to destroy all copies. Lindgren suggests that, had Halderman accepted such anoffer, we would have had an enforceable contract and no crime. So if the offer runs in the otherdirection, why is this a crime?
Widdicombe’s piece offers some situations that we mightconsider akin to blackmail: all commercial transactions, if you are a“Marxist”; divorce proceedings; and consumers who press for settlement bythreatening adverse publicity for the corporate defendant. The offense we take at blackmail ismere evidence of our penchant to wax sanctimonious over other people’s conductwhen we engage in similar or worse conduct under color of law and call itvirtue, Saul Smilansky seems to suggest.
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Richard Epstein rides to the rescue, explaining that wedon’t want to live in a world that permits blackmail, because blackmail leadsto fraud, “and lying to the world is wrong.” Of course, I don’t know if the world we live in now, in which Letterman voluntarily catalogues his own faults, is any better. Others acknowledge what Widdicombe calls “the ick factor,”but tie that factor to the fact that Halderman allegedly sought money. If he had threatened to ruin Letterman’sreputation by going public with the news, there would be no crime. Libertarian economist Walter Block goes further, arguing that blackmail, even if “yucky” should not be a crime, anymore than smoking is a crime.
I am more interested in the contracts law issue. I think it is possible that we coulduse contracts doctrines, such as duress, undue influence and unconscionability todistinguish between enforceable agreements and acts of extortion. Thoughts?
[Jeremy Telman]
