Thursday, November 30, 2023
Benjamin Smith has posted The Fraud of Federalism: How the Modern Court Has Used the Meaning of “Property” to Reshape Federal Fraud Jurisprudence (Columbia Law Review, Forthcoming) on SSRN. Here is the abstract:
For the past several decades, the Supreme Court has shown a renewed interest in federal fraud jurisprudence. In a series of cases, the Court has repeatedly sought to re-interpret the meaning of "property" within the fraud statutes to limit the degree to which federal prosecutors can regulate state official misconduct. While the Court's interpretive approach to the federal fraud statutes has drawn varying degrees of praise and criticism from different sides of the legal community, this Note seeks to ask—in a apolitical, value-neutral fashion—whether the Courts stated ends are justified by their analytical means. The Note first undertakes a deep-dive analysis of the evolution of the Court's mail and wire fraud jurisprudence. It then shows how, on the Court's own terms, the modern fraud doctrine fails to meaningfully further their goals of drawing clear limits for federal prosecutors. In undertaking this close doctrinal analysis, this Note exposes slapdash doctrines that are rooted more in ideological interests than rigorous analytical and interpretive methods, and offers an lens to analyze Supreme Court jurisprudence that can be applied far beyond the fraud statues themselves.