Thursday, August 19, 2010
In this contribution to a collection of essays on the Supreme Court’s October Term 2009, I comment on the Court’s trilogy of mail fraud cases, disposed of principally through Justice Ginsburg’s opinion in Skilling v. United States. The Court’s solution to the problem of "honest services fraud" was tidy but somewhat arbitrary and quite shallow. The Court seemed to recognize that the cases presented the problem of how to deal with frauds that involve indirect benefits to violators and/or intangible harms to victims. This can be termed the "relationship and context problem" in fraud or, if one prefers, the "duty problem." But the Court failed to engage with this problem conceptually, missing a golden opportunity to develop the jurisprudence of fraud that is not likely to arise again for a long time. I explain the problem, demonstrate that it is not limited to the recent tempest over the "honest services" statute and its constitutionality, and suggest some directions for addressing it that the Court might have pursued.