Thursday, October 15, 2009
In a dissent on a Petition for Certiorari in the Sorich case, Justice Scalia expressed his view that section 1346 - the honest services definition used in mail/wire fraud statutes had "been invoked to impose criminal penalties upon a staggeringly broad swath of behavior, including misconduct not only by public officials and employees but also by private employees and corporate fiduciaries." He concluded his dissent by stating - "it seems to me quite irresponsible to let the current chaos prevail." It looks like Justice Scalia will have his way this term - at least in getting the other Justices to engage in the conversation - as there are now three cases before the court with questions related to the intangible rights to honest services. So will we be telling students that the cases on mail fraud in the casebook are history and they need to look somewhere else to really find out what is the law today. Or will the court provide blanket statements allowing the use of 1346 in these contexts with little change to the status quo. What is remarkable here is that 28 words will be taking up a good bit of Court time.