Con Men and Their Enablers: The Anatomy of Confidence Games

Introduction

"Confidence games" (or "cons"), a distinctive species of fraudulent conduct, are schemes intended to further voluntary exchanges that are not mutually beneficial. They benefit con operators ("con men") at the expense of their victims (the "marks"). Cons have numerous varieties that constantly evolve, but all cons build on two key elements: the acquisition of the mark's trust—for which the schemes are known as "confidence games"—and the bait—an attractive reward that lures and disarms the mark. The devious elegance of the art is in the exploitation of mechanisms that are critical to the functioning of markets and democratic processes: voluntary exchanges, autonomous decisionmaking, and trust. For the opportunistic use of elementary market mechanisms, it is difficult to set cons apart from ordinary market transactions and prove unlawfulness of alleged cons.

Classic types of confidence games include:

Get-Rich-Quick Schemes. Products and services offering impractical prescriptions for wealth in exchange for small fees.

Gold-Brick Scams. Sales of tangible objects for much more than their worth.

Gold Digging and Romance Scams. Personal interactions intending to gain the mark's affection for the purpose of getting the mark's money.

Humbuggery. The use of provocative public messages to draw public attention and create willingness to pay for provocations, entertainment, and illusions.

Payoff, Rag, and Wire Schemes. Ploys that draw marks to participate in unlawful activities, such as fixed gambling (the payoff), insider trading (the rag), and embezzlement (the wire), that are rigged against the marks.

Peter Funk. A mock auctioneer who inflates auction prices.

Ponzi Schemes. Investment enterprises that promise safe or very high returns and use deposits to pay customers who seek to redeem investments or cash their profits.

Pyramid and Multilevel Marketing Schemes. Business models that recruit members through promises of payments for enrolling others into the scheme.

Vanity Scams. Sales of supposedly lucrative affiliations, awards, and publication opportunities.

These cons and others are prevalent throughout the economy, operated by underworld crooks, marketers, salespersons, businesses, and politicians. History offers numerous examples of high-profile individuals who operated large-scale cons, such as circus pioneer P. T. Barnum, industrial titan Ivar Krueger, Wall Street financier Bernard Madoff, blood-testing company founder Elizabeth Holmes, and US president Donald Trump.

Many cons succeed by inducing judgment errors—chiefly, errors arising from imperfect information and cognitive biases. In popular culture and among professional con men, the human vulnerabilities that cons exploit are depicted as dishonesty, greed, and gullibility of the marks. Dishonesty, often represented by the expression "you can't cheat an honest man," refers to the willingness of marks to participate in unlawful acts, such as rigged gambling and embezzlement. Greed, the desire to "get something for nothing," is a shorthand expression of marks' beliefs that too-good-to-be-true gains are realistic. Gullibility reflects beliefs that marks are "suckers" and "fools" for entering into costly voluntary exchanges. Judicial opinions occasionally echo these sentiments.

Figure 1.

The Spanish Prisoner (a "get-rich-quick" scheme). New York Herald, Dec. 3, 1922.

We study the anatomy of confidence games and examine why efforts to fight cons are controversial and often ineffective. We argue that lawmakers and courts should be mindful of the broad social costs of cons and, specifically, of how conning enterprises exploit factual and legal ambiguities. The present understanding of cons, however, is deficient. Formalistic protections of voluntary exchanges, often advanced by ideological beliefs, shield cons from prosecution and impede the development of measures that can curtail the effectiveness of confidence schemes.

We examine several key attributes of cons. First, we empha-size the flexible and evolving nature of cons that allows concealment of their deceptive character and circumvention of legal definitions. Second, we compare the operations of con enterprises in the under-world with operations of con enterprises in the formal economy and democratic processes. Underworld cons, even sophisticated ones, are relatively limited in scale and scope and assumed to be unlawful. By contrast, participation in established social institutions often serves confidence schemes...