Tuesday, June 29, 2010

Open Questions Post Skilling Related to the Honest Services Issue

As a result of the Skilling decision see here, here, here, here, and here, many questions are left for consideration by lower courts and perhaps Congress and the Supreme Court in future cases.  What are some of these questions:

  • Can Congress rewrite a statute that would pass constitutional muster? (but perhaps they should think twice about doing this - see here)
  • Did the Court engage in interpretation or invention?
  • What cases will require reversal as a result of the holding in Skilling (e.g., Will Governor Ryan's conviction stand?)
  • Are there other available statutes to prosecute conflicts of interest and self-dealing?
  • When does harmless error require a reversal of a case that alleged honest services?
  • The Court in footnote 37 notes the disagreement of lower courts on whether one has to violate state law, is this now an irrelevant question?
  • The Court limits "bribery and kickbacks" to the "core of the pre-McNally case law.  What does this include?
  • Does the Rule of Lenity only apply after the Court has made its interpretive (inventive) decision?
  • The Court states that its definition only covers "serious culpable conduct." Does this mean that minor frauds cannot be prosecuted under the honest services provisions?
  • Does the Court really set up a "uniform national standard" for honest services, and therefore can state law not be used to determine whether it is a bribery or kickback?
  • If the Court says you use pre-McNally caselaw on bribery and kickbacks, how do you interpret conflicting opinions by lower courts?
  • What does bribery mean?  The Court references 201 (b) and not (c), so is bribery limited?
  • In footnote 46 the Court refers to state and local corruption - but what statutes get included here?
  • Has the Court redefined what constitutes vagueness for purposes of statutory interpretation?
  • In adopting a position expressed by a law professor in an amicus brief, is the Court saying that law professors should focus on writing amici briefs and not law review articles?

(esp)

http://lawprofessors.typepad.com/whitecollarcrime_blog/2010/06/post-skilling-questions.html

Enron, Fraud, Judicial Opinions, Prosecutions | Permalink

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