Orbach and Huang on Con Men and Their Enablers

Barak Orbach, University of Arizona, and Lindsey Huang, Perkins Coie, LLP, are publishing Con Men and Their Enablers: The Anatomy of Confidence Games in Social Research: An International Quarterly (forthcoming). Here is the 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.

Download the article from SSRN at the link.

The Origins of the Confidence Man

The late Jean Braucher, University of Arizona College of Law, and Barak Orbach, University of Arizona, are publishing Scamming: The Misunderstood Confidence Man in volume 27 of the Yale Journal of Law and the Humanities (2015). Here is the abstract.

Samuel Thompson, the swindler who gave name to confidence men (“con men”) was “a man of genteel appearance,” “ladies’ man,” and gifted with “persuasive powers.” He approached his victims — “perfect strangers” — on the street, engaged them in a short conversation, and then asked them express confidence in him by lending him money or a watch. A few men placed confidence in Thompson and gave him gold watches and money. Thompson became known as the “Confidence Man” for his method and primarily for his signature question: “Have you the confidence in me to trust with me your watch until tomorrow?” His modus operandi was used to reframe swindling as exploitation of trust and define swindling as “confidence game.” “Scamming,” also known as the “confidence game,” “diddling,” and “swindling,” is the exploitation of predictable imperfect decisions for profit facilitated by persuasion tricks. The practice is as old as the human race, yet still confuses lawmakers, courts, and scholars. We use the story of the Confidence Man to explain some of the core elements of scamming. Specifically, we explain why the abuse of trust in the pursuit of profit is conceptually confusing. Our study consists of two parts. First, we examine the origins of the terms “confidence game” and “confidence man.” Numerous studies describe Thompson as a genius operator. We argue that this attribution of sophistication illustrates broad misunderstanding of scamming. The record shows that Thompson was a clumsy thief and unsophisticated scammer and that his limitations were useful for illustrative purposes. We identify the reporter who coined of the term and explain the historical context in which the term was introduced. Second, we utilize insights from the story of the Confidence Man and its conceptualization to explain some of the confusing elements of scamming. Specifically, we emphasize (1) the common abuse of trust for profit; (2) the folly of attributing rationality to consumers and scammers; (3) scammers’ use of time to trap people in situations where they are likely to make mistakes; (4) challenges created by institutional scammers; (5) the role of intent and knowledge in scams; and (6) the possibility of using industry standards for scams.

Download the article from SSRN at the link.