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 act 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.
Storytime with Nathan:
Which one of the following is the central topic of each passage?
why triangular transactions are illegal
the role of the right to free speech in a given legal system
how blackmail has been handled in a given legal system
the history of blackmail as a legal concept
why no good explanation of the illegality of blackmail exists
This question asks us to find a topic that was central to each passage. Blackmail was undoubtedly a concern of both passages. More specifically, both authors were interested in how specific legal systems justify the illegality of blackmail. For common law systems, author A thought blackmail was illegal because it unfairly misused a third party. For Roman law, author B told us that blackmail was illegal because harming someone by releasing their private information was unlawful.
A. No, this is only a concern of passage A, so it’s wrong.
B. No, freedom of speech is only a concern of the U.S. and Canadian common law systems. The author of passage B was not concerned with it because it didn’t exist under Roman law.
C. Yes, this answer works. The author of passage A was interested in how common law systems justify blackmail laws. The author of passage B explained that blackmail was illegal in Rome because the underlying act of disclosing someone else’s private information was illegal. So yes, both passages talked about how different legal systems handled blackmail.
D. No, A didn’t talk about the history of blackmail in Canadian and U.S. law. It focused on the justification of blackmail laws.
E. This certainly didn’t come up in passage B, and it wasn’t the central point of passage A either. Sure, passage A mentioned that a reasonable explanation for the illegality of blackmail doesn’t exist. Still, the primary purpose of his article was to propose a new theory that could justify blackmail laws, not to explain why a satisfactory theory doesn’t currently exist.
Our answer is C.
In using the phrase “the state’s chip,” the author of passage A most clearly means to refer to a government’s
legal authority to determine what actions are crimes
legitimate interest in learning about crimes committed in its jurisdiction
legitimate interest in preventing crimes before they occur
exclusive reliance on private citizens as a source of important information
legal ability to compel its citizens to testify in court regarding crimes they have witnessed
A. No, it’s true that the government has that authority, but having the power isn’t why the government would want to obtain information on a crime.
B. Yes, why would the state care about the information from the blackmailer? Because they want to know when crimes have possibly been committed.
C. No, because in this example the blackmailer is threatening turning in a criminal for past crimes.
D. No, “exclusive reliance” knocks this out. The passage gives the example of a private citizen as a source, but never suggests that all government sources are private citizens.
E. No, like A, just because they have that ability doesn’t mean that’s why they’d be interested in the blackmailer’s information.
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.
This question asks us to find the answer choice that is most strongly supported by the passage. We should be able to point out the lines that help us prove our answer.
A. Yes, this is almost certainly true. Passage B told us that there was no need for blackmail laws because revealing sensitive information was prima facie (at face value) unlawful. Even if the revelation was true, that was not enough “to constitute a legal privilege” (first sentence of Passage B’s third paragraph). So Romans did not protect free speech, even if such speech was factual. That’s why the blackmail paradox didn’t exist. Blackmail didn’t encompass two acts that were legal when done separately—it included an act (disclosing private information) that was already patently illegal.
B. Nope, this is way too strong to conclude. There’s no support for it in the text. Roman law did not expressly prohibit blackmail, but it did prevent the underlying action of disclosing sensitive private information. So it did prevent blackmail, just in a roundabout way.
C. Again, this is too strong. It is true the Canadian and U.S. Common law grant more freedom when it comes to speech. But we can’t use that fact to generalize about the law systems as a whole. Maybe Roman law was strict when it came to speech but permitted a wide range of other behaviors that modern common law does not.
D. No, this contradicts passage A. The author of passage A argues that outlawing blackmail is justified because it misuses a third party, not because it could harm the victim’s reputation. Perhaps this would have been true under Roman law, but the author of passage A would disagree that this describes modern law.
E. We can’t know this for sure. Passage A never talked about whether there is a public interest in revealing certain kinds of information. There’s not enough information, so we can’t support this answer.
The answer is A.
Which one of the following is a statement that is true of blackmail under Canadian and U.S. common law, according to passage A, but that would not have been true of blackmail in the Roman legal context, according to passage B?
It combines two acts that are each legal separately.
It is a transaction with a triangular structure.
The laws pertaining to it are meant to be enforced precisely as written.
The blackmail victim pays to avoid being harmed by persons other than the blackmailer.
Canadian and U.S. common law have no special category pertaining to blackmail.
A. Yes, Passage A claims that blackmail is illegal in the U.S. and Canada because it involves “two acts, each of which is legally permissible separately, become illegal when combined.” Passage B states that “Classical Roman law had no special category for blackmail . . . 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.”
B. No, blackmail is a triangular structure under U.S. and Canadian law, but Passage B doesn’t state that it wouldn’t have been seen as a triangular structure under Roman law.
C. No, Passage A never claims this, because if each law was enforced precisely as written, blackmail should be legal.
D. No like B, this is true of the U.S. and Canada, but Passage B never states that this would not have been true under Roman law.
E. No, this is stated in Passage B about Roman law, but not about U.S. and Canadian law.
Based on what can be inferred from the passages, which one of the following acts would have been illegal under Roman law, but would not be illegal under Canadian and U.S. common law?
bribing tax officials in order to avoid paying taxes
revealing to public authorities that a high-ranking military officer has embezzled funds from the military’s budget
testifying in court to a defendant’s innocence while knowing that the defendant is guilty
informing a government tax agency that one’s employers have concealed their true income
revealing to the public that a prominent politician had once had an adulterous affair
We’re told that in the U.S. and Canada, it’s legal to ask someone for money and it’s legal to say harmful things about someone. But when you combine those two acts and blackmail someone, it becomes illegal.
We’re told that the Romans didn’t have this “blackmail paradox” since the act of saying harmful things about someone was illegal regardless of whether you asked them for money.
So what kind of act would be illegal in Rome but legal in the U.S and Canada? My prediction is “saying harmful things about someone.”
A. These passages have nothing to do with bribery.
B. This wouldn’t be illegal under Roman law. The last paragraph of Passage B says that revealing shameful information was legal if public authorities had an interest in it.
C. The passages don’t tell us whether this would be illegal under Roman or U.S./Canadian laws.
D. This would’ve been legal in Rome for the same reason as answer B.
E. This is an example of “saying harmful things about someone,” which matches our prediction. Revealing such information would’ve been illegal under Roman law because an affair is a private, shameful act that public authorities have no interest in. It would not be illegal under U.S. or Canadian law because it’s protected by the right to free speech.
The relationship between the ways in which Canadian and U.S. common law and classical Roman law treat blackmail, as described in the passages, is most analogous to the relationship between which one of the following pairs?
One country legally requires anyone working as a carpenter to be licensed and insured; another country has no such requirement.
One country makes it illegal to use cell phones on trains; another country makes it illegal to use cell phones on both trains and buses.
One country legally allows many income tax deductions and exemptions; another country legally allows relatively few deductions and exemptions.
One country makes it illegal for felons to own guns; another country has no such ban because it makes gun ownership illegal for everyone but police and the military.
One country makes it illegal to drive motorcycles with racing-grade engines on its roads; another country legally permits such motorcycles but fines riders who commit traffic violations higher amounts than it does other motorists.
This question asks us to find an answer that is analogous to the relationship between modern common law treatment of blackmail and Roman law treatment of blackmail. The biggest difference is that, in modern common law, Blackmail encompasses two acts that are legal separately: the act of free speech, and asking for money. But In Roman Law, disclosing someone’s private, damaging information was prima facie illegal. The only time that disclosing such information was permissible was when it involved information that public authorities had an interest in revealing. So a good analogy should point out that common law permits the two underlying acts of blackmail, whereas Roman law outright forbade disclosure of sensitive information. Each of these answers talks about the legal systems of two countries, so the first country should be analogous to common law and the second country should be analogous to Roman law.
A. No, this isn’t a match.
First, common law is more lenient in the passage. It allows the release of private information in many cases so long as it isn’t released for the purpose of blackmail. Roman law doesn’t allow the release of that information at all. Yet in
this analogy, the first country is more strict and the second country more lenient, which doesn’t match up.
Secondly, I can’t figure out how licensure would be analogous to the situations described in the passage. The passage is about outlawing actions, and licensure is about regulating certain activities. I just can’t see how it would match up.
B. No, this doesn’t match either. Blackmail isn’t forbidden depending on its context or location. It’s always illegal in both common and Roman law.
C. No, the subject of tax exemptions is hard to match to the paragraph. The passage is talking about certain actions being illegal. I don’t think tax exemptions can match.
D. To be honest, this analogy could be better. It matches the big picture and skimps out on the details. Basically, answer D says that one country is more specific in how it forbids a certain action (gun ownership), and another country outright bans that action. In big picture terms, that’s close to how disclosure of private information is treated in common law vs. Roman law. Common law allows for the disclosure of sensitive information, but not blackmail; Roman law forbade such disclosure altogether with few exceptions. It’s not a perfect analogy, but it’s the best one here.
E. The part of this answer that troubles me is that the second country fines some motorists more severely than others. But how would that match the passage? The author never told us that some lawbreakers were punished more severely than others under Roman law. That turns me off to this answer, so I don’t think it’s correct.
D is the answer.
Other Samples
