PrepTest 65, Section 4, Question 16
The following passages are adapted from articles recently published in North American law review journals.
Passage A
In Canadian and United States common law, blackmail is unique among major crimes: no one has yet adequately explained why it ought to be illegal. The heart of the problem—known as the blackmail paradox—is that two acts, each of which is legally permissible separately, become illegal when combined. If I threaten to expose a criminal act or embarrassing private information unless I am paid money, I have committed blackmail. But the right to free speech protects my right to make such a disclosure, and, in many circumstances, I have a legal right to seek money. So why is it illegal to combine them?
The lack of a successful theory of blackmail has damaging consequences: drawing a clear line between legal and illegal acts has proved impossible without one. Consequently, most blackmail statutes broadly prohibit behavior that no one really believes is criminal and rely on the good judgment of prosecutors not to enforce relevant statutes precisely as written.
It is possible, however, to articulate a coherent theory of blackmail. The key to the wrongness of the blackmail transaction is its triangular structure. The blackmailer obtains what he wants by using a supplementary leverage, leverage that depends upon a third party. The blackmail victim pays to avoid being harmed by persons other than the blackmailer. For example, when a blackmailer threatens to turn in a criminal unless paid money, the blackmailer is bargaining with the state's chip. Thus, blackmail is criminal because it involves the misuse of a third party for the blackmailer's own benefit.
The following passages are adapted from articles recently published in North American law review journals.
Passage A
In Canadian and United States common law, blackmail is unique among major crimes: no one has yet adequately explained why it ought to be illegal. The heart of the problem—known as the blackmail paradox—is that two acts, each of which is legally permissible separately, become illegal when combined. If I threaten to expose a criminal act or embarrassing private information unless I am paid money, I have committed blackmail. But the right to free speech protects my right to make such a disclosure, and, in many circumstances, I have a legal right to seek money. So why is it illegal to combine them?
The lack of a successful theory of blackmail has damaging consequences: drawing a clear line between legal and illegal acts has proved impossible without one. Consequently, most blackmail statutes broadly prohibit behavior that no one really believes is criminal and rely on the good judgment of prosecutors not to enforce relevant statutes precisely as written.
It is possible, however, to articulate a coherent theory of blackmail. The key to the wrongness of the blackmail transaction is its triangular structure. The blackmailer obtains what he wants by using a supplementary leverage, leverage that depends upon a third party. The blackmail victim pays to avoid being harmed by persons other than the blackmailer. For example, when a blackmailer threatens to turn in a criminal unless paid money, the blackmailer is bargaining with the state's chip. Thus, blackmail is criminal because it involves the misuse of a third party for the blackmailer's own benefit.
Passage B
Classical Roman law had no special category for blackmail; it was not necessary. Roman jurists began their evaluation of specific categories of actions by considering whether the action caused harm, not by considering the legality or illegality of the action itself.
Their assumption—true enough, it seems—was that a victim of blackmail would be harmed if shameful but private information were revealed to the world. And if the shame would cause harm to the person's status or reputation, then prima facie the threatened act of revelation was unlawful. The burden of proof shifted to the possessor of the information: the party who had or threatened to reveal shameful facts had to show positive cause for the privilege of revealing the information.
In short, assertion of the truth of the shameful fact being revealed was not, in itself, sufficient to constitute a legal privilege. Granted, truth was not wholly irrelevant; false disclosures were granted even less protection than true ones. But even if it were true, the revelation of shameful information was protected only if the revelation had been made for a legitimate purpose and dealt with a matter that the public authorities had an interest in having revealed. Just because something shameful happened to be true did not mean it was lawful to reveal it.
The following passages are adapted from articles recently published in North American law review journals.
Passage A
In Canadian and United States common law, blackmail is unique among major crimes: no one has yet adequately explained why it ought to be illegal. The heart of the problem—known as the blackmail paradox—is that two acts, each of which is legally permissible separately, become illegal when combined. If I threaten to expose a criminal act or embarrassing private information unless I am paid money, I have committed blackmail. But the right to free speech protects my right to make such a disclosure, and, in many circumstances, I have a legal right to seek money. So why is it illegal to combine them?
The lack of a successful theory of blackmail has damaging consequences: drawing a clear line between legal and illegal acts has proved impossible without one. Consequently, most blackmail statutes broadly prohibit behavior that no one really believes is criminal and rely on the good judgment of prosecutors not to enforce relevant statutes precisely as written.
It is possible, however, to articulate a coherent theory of blackmail. The key to the wrongness of the blackmail transaction is its triangular structure. The blackmailer obtains what he wants by using a supplementary leverage, leverage that depends upon a third party. The blackmail victim pays to avoid being harmed by persons other than the blackmailer. For example, when a blackmailer threatens to turn in a criminal unless paid money, the blackmailer is bargaining with the state's chip. Thus, blackmail is criminal because it involves the misuse of a third party for the blackmailer's own benefit.
Passage B
Classical Roman law had no special category for blackmail; it was not necessary. Roman jurists began their evaluation of specific categories of actions by considering whether the action caused harm, not by considering the legality or illegality of the action itself.
Their assumption—true enough, it seems—was that a victim of blackmail would be harmed if shameful but private information were revealed to the world. And if the shame would cause harm to the person's status or reputation, then prima facie the threatened act of revelation was unlawful. The burden of proof shifted to the possessor of the information: the party who had or threatened to reveal shameful facts had to show positive cause for the privilege of revealing the information.
In short, assertion of the truth of the shameful fact being revealed was not, in itself, sufficient to constitute a legal privilege. Granted, truth was not wholly irrelevant; false disclosures were granted even less protection than true ones. But even if it were true, the revelation of shameful information was protected only if the revelation had been made for a legitimate purpose and dealt with a matter that the public authorities had an interest in having revealed. Just because something shameful happened to be true did not mean it was lawful to reveal it.
The following passages are adapted from articles recently published in North American law review journals.
Passage A
In Canadian and United States common law, blackmail is unique among major crimes: no one has yet adequately explained why it ought to be illegal. The heart of the problem—known as the blackmail paradox—is that two acts, each of which is legally permissible separately, become illegal when combined. If I threaten to expose a criminal act or embarrassing private information unless I am paid money, I have committed blackmail. But the right to free speech protects my right to make such a disclosure, and, in many circumstances, I have a legal right to seek money. So why is it illegal to combine them?
The lack of a successful theory of blackmail has damaging consequences: drawing a clear line between legal and illegal acts has proved impossible without one. Consequently, most blackmail statutes broadly prohibit behavior that no one really believes is criminal and rely on the good judgment of prosecutors not to enforce relevant statutes precisely as written.
It is possible, however, to articulate a coherent theory of blackmail. The key to the wrongness of the blackmail transaction is its triangular structure. The blackmailer obtains what he wants by using a supplementary leverage, leverage that depends upon a third party. The blackmail victim pays to avoid being harmed by persons other than the blackmailer. For example, when a blackmailer threatens to turn in a criminal unless paid money, the blackmailer is bargaining with the state's chip. Thus, blackmail is criminal because it involves the misuse of a third party for the blackmailer's own benefit.
Which one of the following statements is most strongly supported by information given in the passages?
In Roman law, there was no blackmail paradox because free speech protections comparable to those in Canadian and U.S. common law were not an issue.
Blackmail was more widely practiced in Roman antiquity than it is now because Roman law did not specifically prohibit blackmail.
In general, Canadian and U.S. common law grant more freedoms than classical Roman law granted.
The best justification for the illegality of blackmail in Canadian and U.S. common law is the damage blackmail can cause to the victim's reputation.
Unlike Roman law, Canadian and U.S. common law do not recognize the interest of public authorities in having certain types of information revealed.
Explanations
The question asks which answer choice is most strongly supported by information from both passages.
This is going to be tough to predict given the open-ended nature of the question, and the fact that it's based on both passages.
Nevertheless, I'm going to take a minute to think about their relationship—where they agree about blackmail and where they disagree.
Fact is, much of the information overlaps, except one central idea: what exactly makes blackmail illegal. In common law, it's paradoxical—the constituent parts that make blackmail are themselves legal behaviors. It's the third-party intent that makes blackmail a criminal behavior. In Roman law, even the constituent parts of blackmail could themselves be illegal. That is, the blackmailer better have a really solid, publicly-beneficial reason to be divulging information. They don't have the same speech protections as they might in the common law system, and they have this public-sentiment burden of proof.
Let's see if that helps us find what we're looking for.
Yeah, this is going to be the answer. Kind of a weird way of phrasing it, but ultimately, there were two big differences between the legal systems' approaches to blackmail. In Roman law, you couldn't just say whatever you wanted—it could be a crime, in fact.
No way. We have no proof of this in either passage.
Nah, this is a trap. We know that there was at least one freedom—freedom of speech—that was handled somewhat differently, but we don't know if that means that more freedoms are available now than in the Roman law tradition, at least not from the passages.
No, this isn't even a correct characterization. Passage A's author argues that the illegality of blackmail comes from the act's dependence on a third-party's legitimate interest in the matter, not just from the harm it could cause the victim.
Nope. This is another trap. While we know this is true of Roman law, we are not told that it's true about U.S. and Canadian common law. Be so, so careful not to read into what isn't there. For example, I have proof I can point to for A. I don't have proof I can point to for E.
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