1. Shaw, James R., The Morality of Blackmail , 40 Phil. & Pub. Aff. 165 (2012)CrossRefGoogle Scholar; Berman, Mitchell, The Evidentiary Theory of Blackmail: Taking Motives Seriously , 65 U. Chi. L. Rev. 795 (1998)CrossRefGoogle Scholar; Berman, Mitchell, Blackmail , in The Oxford Handbook on the Philosophy of the Criminal Law 37–106 (Deigh, John & Dolinko, David eds., 2011)Google Scholar; Fitzpatrick, Dan, The Philosophy of Blackmail: Indecent Offers or Coercive Proposals , 29 J. Soc. Phil. 37 (1998)CrossRefGoogle Scholar; Gorr, Michael, Liberalism and the Paradox of Blackmail , 21 Phil. & Pub. Aff. 43 (1992)Google Scholar; Lamond, Grant, Coercion, Threats, and the Puzzle of Blackmail , in Harm and Culpability 215–238 (Simester, A.P. & Smith, A.T.H. eds., 1996)CrossRefGoogle Scholar.

2. Angus McLaren, Sexual Blackmail: A Modern History (2002), at 22.

3. Richard Ellmann, The Trial of Oscar Wilde (1996), at 419.

4. The antecedent permissibility of doing X is sometimes said to differentiate blackmail from extortion, where the action referenced in the proposal is antecedently impermissible. See Katz, Leo, Blackmail and Other Forms of Arm-Twisting , 141 U. Pa. L. Rev. 1567 (1993)CrossRefGoogle Scholar, at 1599.

5. Some might dispute this assumption on the grounds that since sodomy was a crime in Britain at the time of Allen's proposal, Allen's failure to disclose would have violated a moral or legal duty to disclose information of criminal wrongdoing to authorities. Joel Feinberg, Harmless Wrongdoing (1988), at 241–245.

6. The term blackmail exchange is more prominent in the literature, but the term blackmail agreement seems more accurate. I use these terms synonymously.

7. Sheinman, Hanoch, Agreement as Joint Promise , in Promises and Agreements: Philosophical Essays 365 (Sheinman, Hanoch ed., 2011), at 369–370 CrossRefGoogle Scholar. I refine this preliminary definition in Section II.A.

8. Shaw, supra note 1, at 166.

9. Id. at 167.

10. Id.

11. Id. at 168.

12. Id. at 175.

13. Id. at 177.

14. Arthur Ripstein, Force and Freedom: Kant's Legal and Political Philosophy (2009), at 54. On Ripstein's Kantian view, “you are independent only if you are the one who decides what ends you will use your powers to pursue, as opposed to having someone else decide for you.” Id. at 33. Someone else can interfere with your independence by either usurping or destroying your powers to set and pursue purposes. Id. at 43. When someone usurps your powers, he “deprives you of the ability to be able to decline to pursue purposes unless you have set them.” Id. at 44. For Ripstein, usurping your powers amounts to “using” you, insofar as the usurpation renders your choice subject to someone else's will and deprives you of the “ability to decide what to do” for yourself. Id. Japa Pallikkathayil defends a similar notion of coercion as usurpation. See Pallikkathayil, Japa, The Possibility of Choice: Three Accounts of the Problem with Coercion , 11 Phil. Imprint 18 (2011)Google Scholar.

“Usurpation” is not the only or even the most common way to construe the wrongfulness of coercion. Alternative accounts focus on different features, such as the ways that coercion negates reciprocity and therefore violates the target's moral equality; see, e.g., Stephen Darwall, The Second-Person Standpoint (2006), at 22; or puts the target in a position “where her goals become self-undermining”; Bazargan, Saba, Moral Coercion , 14 Phil. Imprint 1 (2014)Google Scholar, at 6; or constitutes an irresponsible act of reason-creation by the coercer; Julius, A.J., The Possibility of Exchange , 12 Pol. Phil. & Econ. 361 (2013)CrossRefGoogle Scholar, at 362–363; or brings about a relationship in which the target is dominated by the coercer; Anderson, Scott, The Enforcement Approach to Coercion , 5 J. Ethics & Soc. Phil. (2010)Google Scholar; Kolodny, Niko, What Makes Threats Wrong , 58 Analytic Phil. (forthcoming 2017)CrossRefGoogle Scholar; or wrongfully puts pressure on the target's will or liberty to do otherwise; Alan Wertheimer, Coercion (1987); Berman, Mitchell, The Normative Functions of Coercion Claims , 8 Legal Theory 45 (2002)CrossRefGoogle Scholar.

Coercion-based accounts of blackmail differ, inter alia, based on the notions of wrongful coercion that they utilize. For example, Lamond explains the wrongfulness of coercion in terms of domination: in coercing the target, the blackmailer attempts to obtain (over the target's objections or invalid consent) “whatever [he] demand[s]” of the target.” Lamond, supra note 1, at 233–234. By contrast, Berman's evidentiary theory incorporates the “wrongful pressure” notion of coercion. See Berman, Blackmail, supra note 1, at 66–67. For Berman, blackmail proposals are coercive when the action referenced in the proposal would, if carried out, wrongfully set back certain of the target's interests, and the prospect of this wrongful harming exerts pressure on the target's liberty or will.

15. Ripstein, supra note 14, at 43. See also Lamond, supra note 1, at 219.

16. Shaw, supra note 1, at 171.

17. Id. at 170–171; see also Berman, Blackmail, supra note 1, at 69–70.

18. Shaw, supra note 1, at 169.

19. Id. at 170.

20. Id. at 172. Thus it is perhaps more accurate to characterize Shaw as offering a “usurpation and disregard” account of wrongful coercion—usurping someone's deliberative authority is what makes a proposal coercive, and the disregard animating the proposal is (at least part of) what makes the proposal wrongful. My contention that Shaw offers a “usurpation” account of wrongful coercion should be read to include this proviso.

21. One might also contend, somewhat anachronistically, that Wilde had authority to decide whether to reveal information about his sexual behavior to the world. However, whether Allen's proposal is coercive does not depend on whether Wilde has the right to control the disclosure of this information. As noted above, Shaw sees the infringement of the target's default discretionary authority as sufficient to make the blackmail proposal wrong. Id. at 193. In other words, Allen's blackmail proposal would have been objectionably coercive even if Wilde had no entitlement regarding the disclosure of information about his sexual behavior.

22. Id. at 177.

23. Christopher, Russell, A Political Theory of Blackmail: A Reply to Professor Dripps , 3 Crim. L. & Phil. 261 (2009)Google Scholar, 265. Most extant criminal laws construe blackmail as an inchoate crime, in that liability attaches on the making of the proposal (rather than when a blackmail agreement is reached). See Lindgren, James, Unraveling the Paradox of Blackmail , 84 Colum. L. Rev. 670 (1984)CrossRefGoogle Scholar, at 676 n. 31.

24. Lindgren, supra note 23; Williams, Glanville, Blackmail , 1954 Crim. L. Rev. 79 (1954)Google Scholar, at 79–92, 162–172, 240–246. Others have contended that the legal version of the paradox is not strictly paradoxical, since many criminal offenses consist of components that are each morally and legally permitted. Clark, Michael, There Is No Paradox of Blackmail , 54 Analysis 54 (1994)CrossRefGoogle Scholar. The simple account provides an additional way to resolve the first paradox: there is no paradox because the blackmail proposal changes the status of doing X for the blackmailer. In making the proposal, the blackmailer both infringes the target's deliberative authority and makes it the case that future X-ing would manifest disregard for the target.

25. DeLong, Sidney W., Blackmailers, Bribe Takers, and the Second Paradox , 141 U. Pa. L. Rev. 1663 (1993)CrossRefGoogle Scholar. On the simple account, the blackmailer's announcement attempts to usurp the target's deliberative authority. If (as in the case of target-initiated proposals) there is no announcement by the blackmailer, then there is no attempt by the blackmailer to usurp this authority. A target-initiated proposal is an exercise of deliberative authority by the target rather than an attempted usurpation of that authority by the blackmailer. Shaw, supra note 1, at 178–179.

26. The notion that a party's actions can ratify (and therefore validate) an otherwise invalid agreement is a staple of contract law. See Joseph M. Perillo & John E. Murray, Jr., 1 Corbin on Contracts §1.6 (2015) (in cases of voidable contracts, “the agreement may be made fully operative as against both of the parties, by the exercise of a power of ratification” by the “injured party with the power of avoidance”).

A. John Simmons's discussion of loyalty oaths and refugees is based on a version of the ratification objection. A state's demand that people obey its laws is, for Simmons, a paradigmatic example of coercion, since it involves taking control over subjects’ individual authority to decide which obligations will apply to them. Thus a state that conditions the provision of citizenship to a victim of foreign repression only if the refugee takes such an oath makes a coercive proposal. Yet, Simmons argues, the validity of such an oath is an open question, one whose answer depends on whether the refugee had reasonable options other than taking the naturalization oath. Simmons, A. John, Voluntarism and Political Associations , 67 Va. L. Rev. 19 (1981), at 35–36 CrossRefGoogle Scholar. To be sure, many versions of voluntarism would dispute Simmons's logic. However, the implication of Simmons's argument is that the significance of any coercive features of the citizenship proposal can be obviated when the refugee takes the oath. Thus the ratification objection is viable on Simmons's version of voluntarism, albeit perhaps not on other versions.

27. See David Owens, Shaping the Normative Landscape (2012), ch. 11.

28. In correspondence, Shaw suggests a different way to deny the ratification objection from the one proposed here. Rather than disputing whether any blackmail agreement does ratify the usurpation implicit in the blackmail proposal, Shaw might deny that any agreement could change the usurpation implicit in the proposal. The argument, drawing from Pallikkathayil's notion of “impaired normative authority,” is that a coercive proposal by a blackmailer necessarily invalidates the target's default discretionary authority, including his authority to enter into agreements. See Pallikkathayil, supra note 14, at 17, 19; see also Owens, David, Duress, Deception, and the Validity of a Promise , 116 Mind 293 (2007)CrossRefGoogle Scholar, at 304–305; Rivlin, Ram, Blackmail, Subjectivity and Culpability , 28 Can. J.L. & Jurisprudence 399 (2015)CrossRefGoogle Scholar, at 419–421; Lamond, supra note 1, at 234.

However, this “impaired normative authority” strategy seems to get the wrong answer in a variety of blackmail scenarios. In Wilde's actual case, it would imply that Wilde could not have made a valid promise to Allen in the wake of Allen's proposal. Yet Wilde's actual transfer of a half-sovereign to Allen seems valid. If Wilde had filched the coin from Allen's purse after having handed it over, then Wilde would have been stealing. Since Wilde had the power to give a sovereign to Allen, it seems to follow that Wilde also had the power to promise to give Allen a half-sovereign.

29. Meritor Savings Bank v. Vinson, 477 U.S. 57, 68 (1986) (“The gravamen of any sexual harassment claim is that the alleged sexual advances were ‘unwelcome.’”).

30. Id.

31. I relax this assumption infra at note 89.

32. Darwall, Stephen, Demystifying Promises , in Promises and Agreements: Philosophical Essays 255 (Sheinman, Hanoch ed., 2011)CrossRefGoogle Scholar, at 259.

33. Shaw, supra note 1, at 166 n. 3.

34. The compounding effect is also appreciable on alternative notions of wrongful coercion, as discussed in the appendix in connection with the “wrongful pressure” notion of coercion that undergirds Berman's evidentiary theory.

35. Experimental work by Paul Robinson and colleagues supports this conjecture. Robinson, Paul H., Cahill, Michael T. & Bartels, Daniel M., Competing Theories of Blackmail: An Empirical Research Critique of Criminal Law Theory , 89 Tex. L. Rev. 291 (2011)Google Scholar.

36. E.g., Berman, Blackmail, supra note 1, at 67 and 71–73.

37. See, e.g., Mack, Eric, In Defense of Blackmail , 41 Phil. Stud. 273 (1982)CrossRefGoogle Scholar; Block, Walter, The Crime of Blackmail: A Libertarian Critique , 18 Crim. Just. Ethics 3 (1999)CrossRefGoogle Scholar, at 8–9.

38. Shaw, supra note 1, at 195.

39. Id.

40. Id. at 195–196; see also Berman, Blackmail, supra note 1, at 72–73.

41. See Feinberg, Joel, Some Unswept Debris from the Hart-Devlin Debate , 72 Synthese 249 (1987)CrossRefGoogle Scholar, at 259–260.

42. Smilansky, Saul, May We Stop Worrying about Blackmail? , 55 Analysis 116 (1995)CrossRefGoogle Scholar, at 120.

43. Murphy, Jeffrie G., Blackmail: A Preliminary Inquiry , 63 Monist 156 (1980)CrossRefGoogle Scholar; Christopher, Russell, Meta-Blackmail , 94 Geo. L.J. 739 (2006)Google Scholar, at 768–769.

44. In Shaw's example, Fred is a landlord, and Lucy his tenant on a monthly lease. Fred has previously warned Lucy that he may terminate their arrangement on short notice, although he realizes that doing so would make things very difficult for Lucy. Shaw supposes that Fred decides to terminate the lease for the not-very-good reason that “he has grown a little tired of having Lucy in the building.” Shaw, supra note 1, at 169–170.

45. For example, Fred could tell Lucy, “I will kick you out unless you start looking for a new job,” even though Fred could not care less about what job Lucy has.

46. Shaw, supra note 1, at 170.

47. Space constraints prevent a full defense of this claim. However, I demonstrate in the appendix why the difficulties facing the simple account also apply to Berman's evidentiary theory (which utilizes a different notion of coercion).

48. See, e.g., Berman, Blackmail, supra note 1, at 72; Clark, supra note 24, at 59–60; Fitzpatrick, supra note 1, at 45; Gorr, supra note 1, at 44; Lamond, supra note 1, at 223–225.

49. See, e.g., Christopher, Meta-Blackmail, supra note 43, at 769; Smith, Henry E., Harm in Blackmail , 92 Nw. U. L. Rev. 861 (1998)Google Scholar, at 889.

50. See Buell, Samuel, Novel Criminal Fraud , 81 N.Y.U. L. Rev. 1971 (2006)Google Scholar, at 1973–1975.

51. See, e.g., Stuart P. Green, Lying, Cheating, and Stealing: A Moral Theory of White-Collar Crime (2006), at 153–160.

52. For example, the Model Penal Code defines check fraud as the issuing or passing a check for the payment of money that one knows will not be honored by the drawee. If the issuer has no account with the drawee at the time the check is issued, then there is a presumption that that issuer knows that the check will not be paid. Model Penal Code §224.5 (1985).

53. Restatement (Second) of Torts, §530 cmt. c (1977); Restatement (Second) of Contracts § 171 cmt. b (1981). Some deny that obligations and commitments necessarily run together in agreements. These theorists contend that agreements in which only obligations are exchanged can be (and are) valuable in a many circumstances, including when performing is roughly equivalent to paying damages. See Ian Ayres & Gregory Klass, Insincere Promises: The Law of Misrepresented Intent (2005), at 93–095. However, even if commitment-less agreements might be valuable in some circumstances, these circumstances are not applicable to blackmail agreements for the reasons discussed below.

54. Sheinman, supra note 7, at 367.

55. Ayres, Ian & Klass, Gregory, Promissory Fraud without Breach , 2004 Wis. L. Rev. 507 (2004), at 511–514 Google Scholar.

56. Ayres and Klass allow that mutually valuable agreements need not always be accompanied by intentions to perform one's obligations, but note that agreements based on “blank promises” (in which one party intends at the time of agreement not to act in the way that the she promises) lack mutual value. Ayres & Klass, Insincere Promises, supra note 53, at 96–97.

57. Fletcher, George, Blackmail: The Paradigmatic Crime , 141 U. Pa. L. Rev. 1617 (1993)CrossRefGoogle Scholar, at 1626–1627.

58. Coase, Ronald, Blackmail , 74 Va. L. Rev. 655, 675 (1988)CrossRefGoogle Scholar; Murphy, supra note 43, at 166. Ironically, the more rational the target is in appreciating the irrelevance of sunk costs, the more vulnerable he is to this form of predation. See Shavell, Steven, An Economic Analysis of Threats and Their Illegality: Blackmail, Extortion, and Robbery , 141 U. Pa. L. Rev. 1877 (1993)CrossRefGoogle Scholar, at 1885–1886.

59. Because, as discussed below, Allen acts coercively and commits fraud in both Wilde1 and Wilde2, the difference in wrongfulness between these cases is only one of degree.

60. Owens, David, A Simple Theory of Promising , 115 Phil. Rev. 51 (2006)CrossRefGoogle Scholar, at 54–61.

61. E.g., Darwall, Second-Person, supra note 14, at 198–199; Sheinman, supra note 7, at 368. These mutual accountability mechanisms are generic features of agreements. Although these mechanisms can be fashioned out of disconnected promises, they are not generic to promises in the way that they are to agreements. Id. at 378–379 and 383–385.

62. Legal examples of these accountability mechanisms include injunctive and declaratory relief and the doctrine of anticipatory repudiation.

63. The most notable example here is the panoply of legal remedies that are available for breaches of contract but not for promises.

64. See, e.g., Berman, Mitchell, Meta-Blackmail and the Evidentiary Theory: Still Taking Motives Seriously , 94 Geo. L.J. 787, 795 (2006)Google Scholar; Gardner, John & Shute, Stephen, The Wrongness of Rape , in Offences and Defences: Selected Essays in the Philosophy of Criminal Law 1 (John Gardner ed., 2007), at 29–32 Google Scholar.

65. Berman, Blackmail, supra note 1, at 42; see also Shaw, supra note 1, at 168.

66. See Block, Walter, Berman on Blackmail: Taking Motives Fervently , 3 Fla. St. U. Bus. Rev. 57 (2003), at 69–71, 107 Google Scholar; Epstein, Richard A., Blackmail, Inc. , 50 U. Chi. L. Rev. 553 (1983)CrossRefGoogle Scholar.

67. E.g., McLaren, supra note 2; Mike Hepworth, Blackmail: Publicity and Secrecy in Everyday Life 42 (1975).

68. Shavell, supra note 58, at 1885–1887.

69. A.C. Doyle, “The Adventure of Charles Augustus Milverton,” in The Complete Sherlock Holmes 572–573 (1960) (emphasis added).

70. See, e.g., Douglas Husak, Overcriminalization: The Limits of the Criminal Law (2008), at 159–176; Duff, R.A. & Marshall, Sandra, Remote Harms and the Two Harm Principles , in Liberal Criminal Theory: Essays for Andreas von Hirsch 205 (Simester, A.P., Neumann, Ulfrid & du Bois-Pedain, Antje eds., 2014)Google Scholar, at 207. To alleviate legality concerns related to overbreadth, a state might legitimately criminalize a type of behavior that tends to be objectionable and provide an affirmative defense against liability for those who perform unobjectionable tokens of that behavior. Thanks to Grant Lamond for suggesting this point.

71. See Restatement (Second) of Torts, §530 cmt. c; Sheinman, supra note 7, at 367; Ayres & Klass, Insincere Promises, supra note 53, at 96–97.

72. Further, although the target's reliance is typically an element of the common-law tort of fraud, reliance is not an essential element of criminal prohibitions of fraud or in statutory schemes that punish fraud (such as consumer protection statutes or securities law). Goldberg, John C.P., Sebok, Anthony J. & Zipursky, Benjamin C., The Place of Reliance in Fraud , 48 Ariz. L. Rev. 1001 (2006)Google Scholar.

73. For example, on Fitzpatrick and Lamond's views, the proposal in Wilde3 would not be coercive because Wilde welcomes it. Fitzpatrick, supra note 1, at 39; Lamond, supra note 1, at 226. On Berman's view, the proposal would (probably) not be coercive because it does not exert pressure on Wilde. Berman, Blackmail, supra note 1, at 66.

74. On Shaw's logic, even if Allen's proposal in Wilde3 were an attempt to usurp Wilde's deliberative authority, it might not be wrongfully coercive if it did not manifest impermissible disregard concerning Wilde. Shaw, supra note 1, at 179.

75. David Owens also concludes that the blackmail agreement necessarily lacks value for the target, although he identifies different features to explain this lack of value. Owens, David, Should Blackmail Be Banned? , 63 Philosophy 501 (1988)CrossRefGoogle Scholar.

76. Darwall, Second-Person, supra note 14, at 196.

77. Less formally, valuable agreements implicate third parties by generating agreement-based reasons for the parties. These agreement-based reasons can be seen as “by nature public,” in that their “normative force” necessarily “extends across different agents.” See Wallace, R. Jay, The Publicity of Reasons , 23 Phil. Persp. 471 (2009)CrossRefGoogle Scholar.

78. DeLong, supra note 25, at 1691.

79. See, e.g., Block, Crime of Blackmail, supra note 37.

80. Thanks to Alex Sarch for urging clarification of this point.

81. DeLong, supra note 25, at 1690.

82. Doyle, supra note 69, at 573 (emphasis added).

83. Id. at 581.

84. See, e.g., Block, Crime of Blackmail, supra note 37, at 26.

85. Shiffrin, Seana Valentine, Paternalism, Unconscionability Doctrine, and Accommodation , 29 Phil. & Pub. Aff. 205 (2000)CrossRefGoogle Scholar, at 224.

86. Id. at 235.

87. This subsumption strategy is largely an artifact of the notion of coercion utilized in Shaw's simple account. On the “usurpation” notion of coercion, fraud and coercion are not distinctive types of wrongs so much as different ways of instantiating the same wrong of impinging someone's default deliberative authority. Coercion-based accounts that utilize alternative notions of wrongful coercion (such as Berman's) do not allow for this strategy of explanation by subsumption. On such approaches, the coerciveness and fraudulence of blackmail are distinct ways of wronging the target. Thanks Grant Lamond for showing the need to clarify this point.

88. See supra, note 26.

89. Supra, note 31, To this point, I have assumed that the coerciveness of the blackmail proposal does not necessarily invalidate blackmail agreements. There is some merit to this assumption, since coercively imposed agreements (as well as other kinds of morally problematic agreements, such as unconscionable contracts and contracts with minors) are generally considered to be voidable by the party with the “power of avoidance,” rather than void ab initio. See Perillo & Murray, supra note 26, §1.6; Stewart, Hamish, A Formal Approach to Contractual Duress , 47 U. Toronto L.J. 175 (1997)CrossRefGoogle Scholar. In other words, the offeror who acts wrongfully (e.g., the blackmailer) cannot enforce the agreement against the offeree, but the offeree (e.g., the target) can enforce the agreement against the offeror.

However, suppose that this assumption is incorrect and that, as some would argue (see supra note 28), the coerciveness of the blackmail proposal is sufficient to render any resulting agreement invalid. Even so, there is still a stench of fraud that makes the blackmailer's proposal different from other kinds of coercive proposals. If blackmail agreements are void ab initio, then proposing a blackmail agreement amounts to what Scott Anderson calls a “bluff threat,” or an “issuance of a demand/threat by someone who lacks the power to execute that threat, and who knows that he lacks it.” Anderson, Scott, Of Theories of Coercion, Two Axes, and the Importance of the Coercer , 5 J. Moral. Phil. 394 (2008)CrossRefGoogle Scholar, at 418. Bluff threats seem to be both coercive and fraudulent—that is, they are wrong in exactly the same way that blackmail is wrong under the complex account. If blackmail agreements are invalid ab initio, then the blackmailer proposes to create a relationship that is (in virtue of his making the proposal) both legally and logically impossible. This proposal counts as fraud under the notion of valueless fraud articulated above. Therefore, even if the coerciveness of any blackmail proposal renders every resulting blackmail agreement void ab initio, the complex account can still capture wrong-making features of blackmail that other coercion-based views leave out. Thanks to Niko Cornell and Brian Berkey, among others, for prompting this discussion.

90. See Anderson, Enforcement Approach, supra note 14, at 7–8 (articulating the “enforcement” notion of coercion, on which “coercive acts may affect indefinitely many of a coercee's activities some particular activity or activities, or none”).

91. Supra, notes 43–45.

92. Shiffrin, supra note 85, at 216.

93. For example, rape can involve both coercion (when the perpetrator “compel[s] the victim by threat of nonphysical harm sufficient to overwhelm the reasonable person”) and fraud (when a perpetrator “obtain[s] sex by fraud or deception”). Christopher, Russell & Christopher, Kathryn Hope, The Paradox of Statutory Rape , 87 Ind. L.J. 505 (2012)Google Scholar, at 532–535. In many jurisdictions only fraud related to the core nature of the sexual act is held to negate a target's consent to sex; other kinds of fraud (e.g., related to characteristics of the perpetrator) “are deemed as seller's puffery and thought too trivial to warrant rape liability.” Id. at 534–535. By contrast, the vast majority of U.S. states criminalize at least some sexual acts in which a target's consent is obtained in the wake of a coercive proposal by another. See Falk, Patricia, Rape by Fraud and Rape by Coercion , 64 Brook. L. Rev. 39 (1998)Google Scholar, at 102 n. 309 (contending that forty jurisdictions have “at least one criminal provision outlawing the abuse of a position of power to obtain sexual intercourse”). Moreover, in some jurisdictions that criminalize both rape by coercion and rape by fraud, the former is a more serious offense than the latter. Compare Cal. Penal Code §266 (2015) (“[E]very person who, by any false pretenses, false representation, or other fraudulent means, procures any female to have illicit carnal connection with any man” is punishable by imprisonment of up to one year) with Cal. Penal Code §261(a)(2) (2015) (rape is, inter alia, sexual intercourse accomplished “against a person's will by means of . . . duress,” defined as “a direct or implied threat of force, violence, danger, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act which otherwise would not have been performed, or acquiesce in an act to which one otherwise would not have submitted,” and is punishable by imprisonment up to eight years).

94. See, e.g., Julius, supra note 14, at 369–372.

95. See, e.g., Zwolinski, Matt, The Ethics of Price Gouging , 18 Bus. Ethics Q. 347 (2008)CrossRefGoogle Scholar, at 354–356.

96. Similar reasoning distinguishes blackmail from other putatively coercive transactions such as unconscionable contracts and so-called “unconstitutional conditions” cases.

Unconscionable contracts are agreements whose “terms are seriously one-sided, overreaching, exploitative, or otherwise manifestly unfair.” Shiffrin, supra note 85, at 205. Courts have latitude to decline to enforce unconscionable contracts. Id. Yet the party who is offered an unconscionable bargain (or, in the case of procedural unconscionability, unconscionably offered a bargain) is better off than the target of blackmail in at least one way: unlike the target of blackmail, the target of an unconscionable offer realizes some of the value characteristic of agreements. She can, for example, sue an offeror who fails to perform as bargained for.

Cases of “unconstitutional conditions” involve “government offers to provide a gratuitous benefit conditioned on the offeree's waiver of a constitutional right.” Berman, Mitchell, Coercion without Baselines: Unconstitutional Conditions in Three Dimensions , 90 Geo. L.J. 1 (2001), at 2Google Scholar. Berman notes that despite broad scholarly agreement that at least some such conditional offers are legitimate and others are not, “there is no consensus regarding whether and why any particular proposition of this form should pass muster.” Berman, Blackmail, supra note 1, at 88. These doctrinal debates aside, the complex account suggests that “unconstitutional conditions” cases differ from blackmail cases in at least one important respect. Unlike the target of blackmail, a state that accedes to a condition that is ex hypothesi coercively imposed by the federal government (e.g., expanding its Medicaid eligibility in order to receive federal funds) at least realizes the value characteristic of agreements. It can, for example, sue if the federal government does not actually provide the funds or services referenced in the proposal.

97. Berman, Blackmail, supra note 1, at 71.

98. Id. at 68.

99. This notion is a combination of how Berman defines wrongfully coercive proposals (Berman, Normative, supra note 14, at 55) and his contention that coercion operates by exerting pressure on the target's “freedom to choose otherwise” (id. at 53; Berman, Blackmail, supra note 1, at 66). It is unclear whether Berman sees the connection between the proposed X-ing and the pressure that operates on T as conceptual (i.e., where X-ing would wrongfully harm T, it exerts pressure on T by definition) or as contingent (i.e., that many prospective X-ings tend to exert pressure on Ts).

100. Berman, Blackmail, supra note 1, at 68.

101. Id. at 38.

102. At times, Berman seems to have both advanced this position and rejected it. Compare Berman, Evidentiary Theory, supra note 1, at 852 (“[V]ictims of blackmail, just as much as victims of holdups, are likely to view the threatener's proposal as a ‘threat,’ not an ‘offer,’ and to experience themselves as acting under duress,” such that their “acquiescence” is not “‘voluntary’ in a sense sufficiently robust to counsel against societal interference with his purported transactional autonomy”) with Berman, Normative, supra note 14, at 70 (the notion that a promisor “simply has no obligation, even prima facie, to honor a promise” made in response to “wrongful coercion” is “not a convincing position”).

103. See, e.g., Millum, Joseph, Consent under Pressure: The Puzzle of Third Party Coercion , 17 Ethical Theory & Moral Prac. 113 (2014 CrossRefGoogle Scholar), at 114.

104. Berman, Normative, supra note 14, at 68–69 (contending that the coerciveness of a proposal that leads to an agent's promising is insufficient to establish that the agent is excused from keeping her promise).

105. Berman, Blackmail, supra note 1, at 72.

106. For example, the blackmail-as-theft argument for criminalization does not automatically explain why blackmail is an inchoate crime. Someone is guilty of theft only if he obtains possession or control over the victim's property. See Rivlin, supra note 28, at 419. Yet blackmail is a crime regardless of whether the blackmailer ever takes possession or control over any of the target's property.

The blackmail-as-theft argument also begs the question about whether blackmail agreements are valid. If, under certain circumstances (such as those described in Wilde3) blackmail agreements are valid, then the blackmailer's acquiring money as part of the exchange is not theft by the blackmailer, so much as performance by the target. Characterizing blackmail as a form of theft therefore presupposes that blackmail agreements are invalid and thus renders blackmail agreements central to justifying blackmail's criminalization.

107. Moreover, unlike Shaw, who analyzes the moral wrongfulness of blackmail in isolation of whether blackmail should be criminalized, Berman sees the wrongfulness of blackmail as a premise in an argument for why blackmail should be criminalized. See Berman, Blackmail, supra note 1, at 40. Therefore any tendency toward abolitionism counts as an internal criticism of the evidentiary theory.

108. See Shaw, supra note 1, at 196.

109. See supra note 41.

110. Berman posits that “there is no reason . . . that an explicit description of [the defendant's] motivation cannot be imported into a definition of the conduct to be criminalized” under blackmail statutes. Berman, Evidentiary Theory, supra note 1, at 843–844. This statement concedes that no existing blackmail statute allows for liability to vary based solely on the motivations (rather than the actions and mental states) of the blackmailer. Berman uses the example of “good faith” defenses to charges of criminal libel to illustrate the possibility of liability that varies based solely on motivation. Id. at 844. However, this example is inapt, since the Supreme Court has rejected the notion that the legal status of information disclosures regarding public officials may vary solely based on the discloser's motivations. See Garrison v. Louisiana, 379 U.S. 64, 73–74 (1964); see also Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 53 (1988). Moreover, although every U.S. state criminalizes blackmail, the majority of states either lack a criminal libel statute or have had their statutes declared unconstitutional—in many cases, precisely because they allow for the possibility that a defendant's liability could vary based solely on his motives. See Kohler, David, Forty Years after New York Times v. Sullivan: The Good, the Bad, and the Ugly , 83 Or. L. Rev. 1203 (2004)Google Scholar, at 1232–1233.

Aside from criminal libel, Berman does not provide any other example of a crime for which liability for the same act and mental state combination could vary based solely on the motives of the defendant. See also Westen, Peter, Why the Paradox of Blackmail Is So Hard to Resolve , 9 Ohio St. J. Crim. L. 585 (2012)Google Scholar, at 629 (concluding that published blackmail cases reflect the principle that “a bad motive, with which a person knowingly performs an otherwise [legal] act, can[not] render [the person's] conduct [illegal]”).

111. In earlier work, Berman contends that the X-ing implicated in informational blackmail would set back legally protectable interests of T (namely, her reputation and emotional well-being), whereas the X-ing implicated in “hard commercial transactions” implicates interests that are not legally protected. Berman, Evidentiary Theory, supra note 1, at 856.

Although this discrepancy applies to the specific examples that Berman considers, it does not generalize to all cases of “hard commercial transactions.” For many “hard commercial transactions” involving legally protectable or protected interests (e.g., someone's health or reputation or freedom), hard bargaining is nevertheless licit. A surgeon can make a firm, take-it-or-leave-it proposal about her rate to perform a surgery without committing blackmail. So can a lawyer regarding her rate for representing a client. If so, then blackmail cannot be distinguished from “hard commercial transactions” based solely on which interests are affected by the X-ing referenced in the proposal.

112. In later work, Berman contends that hard commercial bargains and blackmail involve different kinds of wrongs, rather than different kinds of harms. Berman argues that blackmail proposals involve coercion, whereas hard commercial bargains involve the “less serious” wrong of exploitation and, as a result, provide a “less secure basis” for criminalization. See Berman, Blackmail, supra note 1, at 74. Berman seems to misconstrue the evidentiary theory here. Contra Berman, “hard commercial transactions” are coercive under the evidentiary theory because they involve an action that if completed would both be wrongful and would harm someone. Exploitation is a wrong-making feature of an action. Therefore, “hard commercial transactions” propose an action that if carried out would commit a wrong (i.e., the wrong of exploitation) and harm the target. Therefore they should be classified as coercive under the evidentiary theory.

113. See, e.g., Mitchell Berman, Meta-Blackmail, supra note 64, at 798 n. 37 (noting that Murphy's “Baseball” case involves a morally coercive proposal that for “practical imperatives, in our current society” we do not criminalize).

114. Berman, Normative, supra note 14, at 82.

115. Berman, Blackmail, supra note 1, at 72–73.

116. Some theorists use the blackmail-as-theft argument to explain why blackmail is immoral. See, e.g., Green, supra note 51, ch. 17; Rivlin, supra note 28, at 419. However, Berman contends that this blackmail-as-theft strategy does not address the “puzzle of moral blackmail” that is his main focus. Berman, Blackmail, supra note 1, at 53.

117. Berman, Blackmail, supra note 1, at 40 (“[W]e should not be satisfied” with explanations of why blackmail should be criminally prohibited “that do not also shed light on the puzzle of moral blackmail”).

118. On the evidentiary theory, the wrong involved in coercion (wrongfully putting pressure on another's liberty to do otherwise) is distinct from the wrong involved in fraud. Therefore, a complex account that incorporates the evidentiary theory does not allow for an explanation by subsumption in the same way that a version based on Shaw's simple account does. See supra note 87.

119. See the discussion of why fraudulence is a sufficient basis for criminalizing blackmail, supra at Section II.A.1 and II.B.

120. As noted above, Berman contends (a) that a theory of blackmail should draw internal connection between the explanation of why blackmail is immoral and why it is illegal; and (b) that its explanation of why blackmail is immoral should also be sufficient to explain why it is criminalized. The evidentiary theory does not satisfy either of these desiderata. For Berman, the coerciveness of the blackmail proposal explains why blackmail is wrongful and (on the blackmail-as-theft argument) the fact that blackmail is theft explains why it is illegal. By contrast, the complex account can capture both of these desiderata: the fact that blackmail involves fraud would provide a common basis for seeing blackmail as both immoral and worthy of criminalizing.

Here is a further respect in which the complex account improves on the evidentiary theory. By construing the case for criminalization in terms of fraud, the complex account can “persuade committed libertarians . . . based on libertarian premises” that blackmail should be prohibited, whereas (as Berman concedes) the evidentiary theory cannot do so. See Berman, Blackmail, supra note 1, at 58.