Puzzles in criminal law and procedure

This dissertation constitutes of three papers discussing puzzles in criminal law and procedure.;The first paper discusses the blackmail paradox: How can two legal rights---a threat to disclose true but reputation-damaging information and, independently, a simple demand for money---make a legal wrong? The puzzle gets even more complicated when we take into account that it is not unlawful for one who holds embarrassing information to accept an offer of payment made by an unthreatened recipient in return for a promise not to disclose the information. In order to answer this question, this article surveys and analyzes the development of the law of informational blackmail and criminal libel in English and American law, and argues that the modern crime of blackmail is the result of an "historical accident" stemming from the historical classification of blackmail as a property offense instead of a reputation-protecting offense. The article argues that when enacted, the prohibition on informational blackmail was meant to protect the interest of reputation as a supplement to the law of criminal libel. As the concept of reputation shifted dramatically over time---from an honor-protecting concept to a dignity- and property-protecting concept---most reputation-protecting offenses were decriminalized in the second half of the 20th century. The crime of blackmail, however, remained unjustifiably intact due to its misclassification as a property offense. This article, therefore, calls for the decriminalization of informational blackmail.;The second paper discusses the puzzle of hate crimes laws: should hate be a necessary element in such laws, and if so, can it be theoretically justified? In order to answer this question, this article surveys and analyzes the current hate crimes literature and statutes and shows a discrepancy between the two. The article argues that current hate crimes theories cannot justify the existing statutory provisions without making significant revisions to them and suggests that, in order to justify hate crimes legislation, a revision must be made in one of two ways: formalizing motive's role in criminal punishment in a way that will reflect the blameworthiness we attribute to all evil motives, or amending hate crime laws to include only instances where the offender knowingly victimizes a member of a vulnerable group that is discriminated against by having a de facto differential administration of justice.;The third paper discusses the ability of the government to infringe on an individual's constitutional rights by utilizing the unique triangular structure of corporate criminal investigations, which include not only the corporation, but also its employees. This article surveys the federal government's prosecution policies of business organizations and state action jurisprudence and their effect on the constitutional rights of corporate employees. The article argues that there is a need to expand current state action jurisprudence by recognizing the existence of state action even in circumstances where there is no direct link between the government and the corporation, but rather a general policy that dictates the behavior of the corporation. Such recognition would take the form of "institutional coercion" and would be judicially applied to all internal investigations in which corporations threaten their employees to secure cooperation unless the government proved that its prosecution policies were not one of the factors considered by the corporation.