Tuesday, August 28, 2012
Kelly Strader (Southwestern Law
School) has posted
Skilling Reconsidered: The Legislative-Judicial Dynamic, Honest Services Fraud, and the Ill-Conceived 'Clean Up Government Act' (Fordham Urban Law Journal, Vol. 39, No. 2, 2011) on SSRN. Here is the abstract:
In United States v. Skilling, the United States Supreme Court narrowed the reach of the federal honest services fraud statute in order to avoid holding the statute unconstitutionally vague. The decision subjected the Court to substantial criticism, both from those who believe that the Court improperly engaged in legislation and those who believe that the Court should have deferred to Congress and left the statute in place. This article provides a soft defense of the Skilling decision, and a critique of Congress's proposed response to the decision. The article argues that the honest services statute indeed created a vague crime that failed to provide fair notice to potential defendants or to cabin prosecutors' discretion. But, in light of Congress's complicity in creating the overcriminalization and overfederalization crises, the Court probably took the best (or least bad) route in attempting to provide rational boundaries for honest services prosecutions. Finally, the article analyzes proposed legislation designed to overturn Skilling, concluding that the legislation would do nothing to solve the vagueness challenge that Skilling addressed.