Orbach and Huang, ‘Con Men and Their Enablers: The Anatomy of Confidence Games’

Abstract
President Trump’s philosophy for life, business, and politics prescribes the use of ‘leverage’, ‘truthful hyperbole’, and ‘play[ing] to people’s fantasies’ to advance zero-sum deals. Many people believe that this philosophy made Trump a successful businessman and the greatest dealmaker in history. Many others believe that, by following this philosophy, Mr Trump has proven that, with the aid of fixers and other enablers, a con man might escape the rule of law for decades, successfully use confidence schemes in a presidential campaign, and continue using confidence schemes in the Oval Office. We examine why people often disagree about what profit-seeking actions constitute unethical confidence games and about how the legal system should address cons. Con schemes have characteristics of both trade and fraud. Like trade, cons are voluntary exchanges, and, like fraud, cons are voluntary exchanges induced by misleading representations. Fundamentally, cons further voluntary exchanges that are not mutually beneficial. They benefit con men at the expense of their victims. We study the anatomy of confidence games and legal strategies that may reduce the social costs of cons. We argue that the present understanding of cons, as reflected through our legal system, political debates, and the literature, is impaired and that the prevalence of cons warrants greater attention of lawmakers, courts, and scholars.

Orbach, Barak and Huang, Lindsey, Con Men and Their Enablers: The Anatomy of Confidence Games (August 6, 2018). Social Research: An International Quarterly (2018 forthcoming); Arizona Legal Studies Discussion Paper No 18-27.

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